Insurance Australia Limited t/as NRMA Insurance v Mihajlovski

[2025] NSWPICMP 333

DETERMINATION OF REVIEW PANEL

CITATION:

Insurance Australia Limited t/as NRMA Insurance v Mihajlovski [2025] NSWPICMP 333

CLAIMANT:

Suzana Mihajlovski

INSURER:

Insurance Australia Limited t/as NRMA Insurance

REVIEW PANEL

MEMBER:

Jeremy Lum

MEDICAL ASSESSOR:

Drew Dixon

MEDICAL ASSESSOR:

Margaret Gibson

DATE OF DECISION:

13 May 2025

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); claimant hit by a car while walking at a pedestrian crossing; claimant fell onto the ground on left side suffering left knee tibial plateau fracture requiring immediate surgery (open reduction and internal fixation); injuries to left shoulder, cervical spine, and lumbar spine emerged later; MAC assessed 13% whole person impairment (WPI); Held – causation established for all injuries referred for assessment; plausible that claimant could have sustained injuries to her cervical spine, lumbar spine, and left shoulder given the mechanism of injury (pedestrian vs motor vehicle) and the serious nature of the left knee tibial plateau fracture; differences in shoulder range of motion found by different medical practitioners not considered inconsistencies; MAC revoked; claimant sustained injuries that give rise to 11% WPI.

DETERMINATIONS MADE:  

CERTIFICATE OF DETERMINATION

1.     The Review Panel revokes the certificate of Medical Assessor Robert Kuru dated
10 October 2024 and issues a new certificate as follows:

(a)    The Review Panel certifies the following injuries were caused by the motor accident:

(i)     cervical spine – soft tissue injury;

(ii)    lumbar spine – soft tissue injury;

(iii)   left shoulder – soft tissue injury with the development of post-traumatic capsulitis, and

(iv)   left knee – tibial plateau fracture.

(b)    The Review Panel finds that the above injuries result in a whole person impairment of 11% which is greater than 10%.

STATEMENT OF REASONS

BACKGROUND

1. Suzana Mihajlovski (the claimant) was involved in a motor accident on 5 May 2021. 

2. She was a pedestrian on her way to work when at a pedestrian crossing, she was struck on the left side by a car. She fell to the ground with a broken left knee and pain in her right elbow and left shoulder. The police attended and an ambulance took her to St George Hospital.

3. The claimant made a claim for personal injury benefits with NRMA (the insurer), the third-party insurer of the vehicle that she says caused the accident.

4. A medical dispute arose about whether the degree of the claimant’s whole person impairment (WPI) is greater than 10% WPI. If there is a dispute about the degree of a claimant’s WPI, damages for non-economic loss[1] cannot be awarded and disputes must be referred to a Medical Assessor/s for determination. 

   [1] See Division 4.3 of the MAI Act.

5. On 10 October 2024, Medical Assessor Robert Kuru assessed the claimant’s injuries as having a WPI of 13% which results in a WPI of greater than 10%.

6. The insurer lodged an application with the Personal Injury Commission (Commission) seeking a review of Medical Assessor Kuru’s assessment.

7. On 4 December 2024, a delegate of the President (Ms Tajan Baba) accepted the application for review and referred the matter to this Review Panel (the Panel) to conduct the Review proceedings.

MEDICAL ASSESSMENT UNDER REVIEW

1. Medical Assessor Kuru was referred the following injuries for medical assessment:

   ·        left knee – tibial plateau fracture, chronic swelling. Complex regional pain syndrome (CRPS) associated with left lower extremity;

   ·        left shoulder – rotator cuff injury and post traumatic capsulitis, chronic swelling. CRPS associated with left upper extremity;

   ·        cervical spine – soft tissue, strain;

   ·        lumbar spine – facet joint dysfunction, soft tissue, strain, and

   ·        TEMSKI surgical scarring to left knee / leg and left shoulder.

2. Medical Assessor Kuru noted that following the motor accident, the claimant was taken to St George Hospital where orthopaedic surgeon Dr Keeley performed open reduction and internal fixation of the claimant’s left tibial plateau fracture.

3. The claimant had progressive pain and stiffness in her left shoulder but had limited access to treatment due to the COVID-19 lockdowns. She had three steroid injections into the shoulder and with ongoing pain and stiffness was referred to Dr Smith, an orthopaedic surgeon.

   
   

   Dr Smith noted frozen shoulder and proceeded with a left shoulder capsular release on

   
   

   22 November 2021.

4. On examination, Medical Assessor Kuru did not find the presence of CRPS for either the left knee or the right shoulder. He evaluated the left knee on the basis of a tibial fracture and assessed 4% WPI. There was loss of range of motion in the right shoulder and this was assessed at 8% WPI. The surgical scarring from the left knee and right shoulder surgical procedures was assessed under the TEMSKI at 1% WPI.

5. Medical Assessor Kuru concluded that the degree of permanent impairment caused by the motor accident was 13% WPI.

ISSUES FOR DETERMINATION

Claimant’s original application submissions dated 30 April 2024

1. The claimant relies on the report of Dr Lee[2] in support of her submission that she has a WPI of 11% comprising of 5% (left shoulder), 4% (left knee) and 2% (scarring).

   [2] Report of Dr Lee dated 15 February 2023 (A7).

2. In relation to the claimant’s left sided swelling, it is submitted this is related to the motor accident and that a Medical Assessor determine whether the criteria for CRPS is met.

3. In relation to the neck and lower back pain following the motor accident, the claimant also requests that these injuries be referred to a Medical Assessor.

Insurer’s original reply submissions dated 21 May 2024

1. The insurer accepts that the claimant suffered a left knee tibial fracture which required surgical fixation as a result of the motor accident. The insurer relies on the treating orthopaedic surgeon Dr Keeley[3] who stated that the fracture had united in satisfactory alignment. The insurer also relies on Dr Keller’s[4] opinion that upon healing, the left knee had a full range of motion with an impairment of 2% WPI attributable to the tibial fracture.

   [3] Report of Dr Keeley dated 11 August 2021 (A13).

   [4] Report of Dr Keller dated 11 July 2023 (R2).

2. The insurer also accepts that the claimant sustained a left shoulder injury as a result of the motor accident. The left shoulder was treated with cortisone injections and an arthroscopic release, performed by treating orthopaedic surgeon Dr Smith. The insurer submits that the claimant’s left shoulder recovered well after surgery and had a full range of motion. Any residual complaint was due to breast asymmetry and a breast MRI dated 18 October 2022 revealed a benign lesion of the claimant’s left breast. The insurer appears to rely on

   
   

   Dr Keller’s finding of 1% WPI for left shoulder loss of range of motion.

3. The insurer submits that the claimant’s surgical scarring results in 0% WPI as Dr Keller found no present complaints and did not provide an assessment in relation to scarring.

4. The insurer says any swelling in the upper or lower extremities are not related to the motor accident and does not meet the criteria for a finding of CRPS. In this regard, the insurer relies in the most recent assessment of Dr Keller[5] and the opinion of treating physiotherapist, Anna Wilkonski[6] who recommended that the claimant consult a lymphatic specialist in relation to her “constant swelling”.

   [5] Report dated 11 July 2023 (R2)

   [6] Report dated 10 March 2023 (A22)

5. In relation to the claimant’s cervical spine and lumbar spine, the insurer says there was no injury or impairment as found by Dr Keller and the claimant’s own expert, Dr Lee.[7]

   [7] Report dated 15 February 2023 (A7).

Insurer’s review application submissions dated 5 November 2024

1. In its review application submissions, the insurer notes that Medical Assessor Kuru’s left shoulder range of motion findings are vastly inconsistent to those measured by previous examiners. It is submitted the Medical Assessor should have put the alleged inconsistencies to the claimant and/or explain in his reasons why the range of motion would decrease so significantly when the evidence suggests a gradual increase in range of motion with the passage of time.

2. Additionally, the insurer says the Medical Assessor did not provide adequate reasoning for his assessment of 2% WPI for the sensory impairment of the superficial peroneal nerve. It is asserted that the Medical Assessor should have referred to cls 6.59 and 6.60 of the Guidelines and Tables 11a and 12a (pages 48-49) of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides) when assessing the peripheral nerve injury under Table 68 (page 3/89) of the AMA 4 Guides.

3. In relation to the claimant’s scarring, the insurer submits that there was no description of the left shoulder scarring which is required under cl 6.264 of the Guidelines.  Without a description, the insurer says the Medical Assessor failed to provide a proper assessment under the TEMSKI criteria (cls 6.265 and 6.266 of the Guidelines).

4. The insurer’s supplementary submissions dated 22 January 2025 were made in response to the Panel’s directions. These are noted but largely repeat the insurer’s submissions which are summarised above.

Claimant’s review reply submissions dated 26 November 2024

1. The claimant submits that there is no inconsistency in the Medical Assessor’s measured range of motion results of the left shoulder. The claimant says soft tissue injuries, by their very nature, “change over time and present differently over time”. Any change therefore is evidence of a deterioration rather than any inconsistency.

2. With respect to the left knee, the claimant says the “sensory alteration” in the left knee was numbness or decreased sensibility. This was a clinical feature of the nerve injury which, according to the Medical Assessor, enlivened cl 6.106 of the Guidelines and Table 11a of the AMA 4 Guides. The claimant notes cl 6.60 of the Guidelines also, for the purposes of interpreting Table 11a, includes “disturbances in the sensation” and “decreased sensibility” like anaesthesia and hypoesthesia. It is submitted that a finding of numbness was sufficient for the Medical Assessor to include an additional 2% WPI for his assessment of the left knee injury.

3. In relation to the scarring, the claimant refers to the Medical Assessor’s reasons with respect to the CRPS criteria, which, in the claimant’s submission, are also relevant to the TEMSKI categories regarding trophic changes, skin appearance, texture and adherence. It is submitted that the Medical Assessor’s reasons are sufficient to justify a very minor 1% WPI assessment with respect to the totality of the scarring, which is made on the principle of “best fit”.[8]

REVIEW OF THE EVIDENCE

[8] Clause 6.265 of the Guidelines.

General observations

1. On 11 December 2024, the Panel issued a direction to the parties requesting indexed and paginated bundles of the information they relied upon. The Panel advised that unless documents are uploaded to the Review file, the Panel would not be able to read and consider those documents. The parties responded with the claimant and insurer lodging their bundles comprising of pages 1-728 and 1-145 respectively.

2. The direction also required the parties to indicate whether there was any agreement with respect to causation of injury or WPI for the injuries referred for assessment.[9]

   [9] In accordance with section 7.25 of the MAI Act “Agreement between parties as to matters in dispute – further assessments and reviews”.

3. The insurer accepted causation of the left knee, left shoulder and the subsequent surgical scarring but disputed the WPI as found by Medical Assessor Kuru. The insurer also disputed cervical spine and lumbar spine causation. The Panel notes that this position is almost identical to the insurer’s original reply submissions dated 21 May 2024.

4. The claimant did not oppose Medical Assessor Kuru’s determination in relation to the cervical spine and lumbar spine. However, the claimant says the review is de novo of all matters and does not object to the Panel forming an alternative view.

5. The insurer also lodged an Application to Lodge Additional Documents enclosing the clinical records of King Street Medical Centre. There was a report of a lipoma on the anterior aspect of the right shoulder. This was surgically removed as noted in the below Panel re-examination report. The lipoma and the surgical scarring from its removal are not related to the motor accident and did not factor into the impairment evaluation. The balance of the King Street Medical Centre records contained information that was not related to the assessment of the alleged injuries sustained in the motor accident.

6. In relation to the bundles lodged by the parties, the material relevant to the determination of the permanent impairment dispute and the issues in dispute are summarised below.

Claim documents and treating reports

1. Application for personal injury benefits dated 7 May 2021 – Completed by the claimant. States that she was a pedestrian hit by a car at a pedestrian crossing and suffered injuries to her left knee, left shoulder and right elbow.

2. NSW Ambulance report dated 5 May 2021 – Pedestrian vs car. Struck by car at low speed to left knee while crossing at pedestrian crossing.10/10 pain left knee. Swelling and tenderness to left knee. Left knee reduced movement. Cervical spine tenderness.

3. Operation report of Dr Anthony Keeley (Snr MO and orthopaedic surgeon) dated
   6 May 2021 – Open reduction left tibial plateau.

4. St George Hospital Discharge Referral – Discharged 10 May 2021. Left knee swollen and tender. X-ray showed tibial plateau fracture in the left leg. Operative repair of the fracture by Dr Keeley (orthopaedic surgeon).

5. Report of Dr Anthony Keeley dated 11 August 2021 – Wound well healed. Leg neurologically intact. Knee range is 10º to 110º flexion. No coronal plane laxity. X-rays demonstrate fracture united in satisfactory alignment.

6. Report of Dr Anthony Keeley dated 8 November 2021 – Good progress. Some wasting in calf and thigh and swelling in ankle at end of the day. Some tenderness over plate itself but no pain in knee. No sensation of instability. On examination there is coronal plane alignment and coronal plane instability. Knee range is 2º fixed flexion to 120º flexion.

7. Operation report of Dr Anthony Keeley dated 9 August 2022 – Removal of hardware from left tibial plateau.

8. Report of Dr Anthony Keeley dated 5 October 2022 – Pain decreasing. Numbness lateral to the scar. On examination wound well healed. Normal gait. Foot neurologically intact. Knee range is 0º to 125º flexion.

9. Report of Dr Bassam Moses, sport and exercise physician, dated 24 August 2021 – Cervical spine global reduction in passive and active range of motion. Forward flexion and abduction limited to 40º, external rotation 10º, internal rotation is to the level of the greater trochanter, extension 20º and her adductor is 10. First corticosteroid injection into left glenohumeral joint.

10. Report of Dr Bassam Moses dated 14 September 2021 – Noted increased ROM following first corticosteroid injection. Second injection administered.

11. Report of Dr Bassam Moses dated 5 October 2021 – Review following intra-articular corticosteroid injections. Range of motion not improving. Third injection. External rotation range from 0º to 50º. Forward flexion improved from 80º to 130º and adduction improved from 0º to 30º.

12. Report of Dr Geoffrey Smith, orthopaedic surgeon, dated 16 August 2021 – FE 80; ER1 0; ER2 not testable; IR buttock. Passive range of motion: unchanged. Strength testing of rotator cuff and subacromial impingement tests not possible due to pain. Proposed non-operative treatment in the form of an ultrasound guided glenohumeral cortisone injection.

13. Operation report of Dr Geoffrey Smith dated 22 November 2021 – Left shoulder arthroscopy; capsular release.

14. Report of Dr Geoffrey Smith dated 8 February 2022 – Three months since surgery. Pain levels well controlled. FE 150; ER1 70. She still feels a little stiff but this is good range of motion for this stage after surgery.

15. Report of Dr Geoffrey Smith dated 6 September 2022 – Nine months since surgery. Pain levels well controlled. FE 170; ER1 70. Main residual symptom of breast asymmetry with left side feeling larger than normal. Breast ultrasound and mammogram normal. MRI of breast next logical investigation.

Medico-legal reports

1. Report of Dr Yuk Kai Lee, orthopaedic surgeon, dated 15 February 2023 – No injury to the cervical spine or lumbar spine. Nil tenderness cervical spine. Accident-related fracture to the lateral tibial plateau left knee which was internally fixed. Accident-related rotor cuff left shoulder with surgery. Ongoing stiffness and pain in the left knee and left shoulder. 16cm scar lateral to the midline in the left knee and upper tibia. Stitch marks and the skin was numb.

   Impairment evaluation: Left shoulder 3% upper extremity impairment (UEI). Right shoulder 11% UEI. 11-3 = 8% UEI which is equivalent to 5% WPI. Left knee flexed to 100º. Rated 10% lower extremity impairment (LEI) or 4% WPI. Scar on left knee is 2% WPI. Total WPI is 11%.

2. Report of Dr Andrew Keller, occupational physician, dated 11 July 2023 – On examination, right shoulder had full range of motion. Cervical and lumbar spine had full symmetrical range of motion. Reduced sensation to light touch around the scar on the left shin. Otherwise, normal sensation in the upper and lower limbs. Both knees had full range of motion from 0 to 145 degrees flexion. No crepitus or effusion on the left side and no instability. No wasting of the bilateral calves and no pitting oedema to the shin.

   Diagnosis/causation: left tibial plateau fracture healed after surgical fixation and left shoulder soft tissue injury with subsequent capsulitis that has improved post arthroscopic release and cortisone injections. Left knee and left shoulder complaint relate to the motor accident.

   Impairment evaluation: Left knee – Table 64 undisplaced tibial plateau fracture 2% WPI. Left shoulder – Figure 38 flexion 170 degrees 1% UEI; extension 50 degrees 0% UEI; adduction 40 degrees 0% UEI; abduction 180 degrees 0% UEI; internal and external rotation 90 degrees 0% UEI. Table 3, 1% UEI equals 1% WPI. Total WPI is 3%.

Radiology

1. A summary of relevant radiological reports is contained in the below Panel’s re-examination report.

PANEL’S RE-EXAMINATION REPORT

1. At the preliminary conference on 18 March 2025, the Panel determined that the claimant be re-examined. This occurred on 2 May 2025 and the report of Medical Assessor Gibson is as follows:

   “Ms Mihajlovski was unaccompanied to the assessment. She said that her and her husband had travelled to St Leonards by train and he was waiting elsewhere whilst the examination was performed. She brought some imaging studies with her to the assessment, the reports for these studies were in the panel documentation. There was no additional imaging since her assessment with Dr Kuru.

   She is right-handed and 49 years of age.

   PRE ACCIDENT MEDICAL HISTORY

   Ms Mihajlovski stated there were no prior accidents or injuries. More specifically, she denied having any symptoms or injuries to the body regions referred for assessment. There was no relevant medical or surgical history.

   RELEVANT PERSONAL DETAILS

   Ms Mihajlovski lives with her husband and two daughters, aged 20 and 22 years in a three-bedroom, two-bathroom unit. She said that there are 18 steps to enter their apartment. She said one of her daughters is working full-time and the other is studying Law.

   She said that at the time of the subject accident, she was employed as a filler with Woolworths in Kogarah, and had been in the job for at least 16 years. She worked between 7am and 3pm on Monday to Friday.

   Prior to her job with Woolworths, she had worked in various roles in hospitality and had worked in a cafe.

   She said the last day she was at work with Woolworths was on the day prior to the subject accident of 5 May 2021. She said she had been was terminated from her position on 3 December 2024.

   She has not worked in any paid capacity since the subject accident.

   HISTORY OF THE SUBJECT ACCIDENT

   Ms Mihajlovski said that she had been on her way to work at about 640am in the morning. She said she had a 10-or 15-minute walk to work. She was wearing a backpack and carrying an umbrella, as the weather was wet. She had started walking on the pedestrian crossing when she saw a car approaching from her left. She assumed the vehicle would stop, but the next thing she remembered was being struck to the ground. She remembered lying on the ground. When she had tried to get to her feet, she couldn’t weight bear over her left leg. There was very severe pain in her left leg. She said her left shoulder was also painful at the time. When asked about the neck and low back, she said that she had had symptoms in these areas ever since the accident.

   An ambulance arrived and she was conveyed to St George Public Hospital. The ambulance report from the day of the accident had noted Ms Mihajlovski had reported crossing the road and being struck by the car to her left leg and falling onto her right elbow. She had been complaining of 10 on 10 pain left knee, she denied head strike, any loss of consciousness, any neck tenderness, chest pain, abdominal pain or pelvic pain. There was no shortness of breath. She had a minor abrasion to her right elbow. There was swelling and tenderness in left knee.

   The following day Dr Keeley performed open reduction and internal fixation of a left tibial plateau fracture. She was eventually in the hospital for 12 days before being discharged home. The discharge summary from St George Hospital noted she was struck on the left-hand side and landed on her right-hand side. There was no loss of consciousness. She did not strike her head. X-ray had shown tibial plateau fracture left leg. There was no mention of left shoulder symptoms. The CT scan of the knee performed on 5 May 2021 had demonstrated Schatzker II tibial plateau fracture and recorded performance of an open reduction of left tibial plateau.

   Dr Anthony Keeley reported on 11 August 2021, then 3 months post ORIF left tibial plateau plus bone grafting. He noted she was progressing well, weight bearing as tolerated without walking aids, left knee movement ranged from 10 degrees to 110 degrees flexion, with no laxity in the coronal plane. X-ray showed the fracture had united satisfactorily. At further review on 8 November 2021, Dr Keeley recorded fixed flexion to 120 degrees, tenderness over the plate, otherwise no pain elsewhere. On 5 October 2022, six weeks post removal of hardware from left tibial plateau, he indicated she was progressing well, knee movements ranged from 0 to 125 degrees flexion.

   There were ongoing symptoms in her left shoulder and she was later diagnosed with capsulitis. She said that surgery was delayed because of the COVID epidemic. In the interim, she had three steroid injections with some improvement in that the pain had reduced.

   Dr Geoffrey Smith, orthopaedic surgeon performed a left shoulder capsular release on 22 November 2021. Ms Mihajlovski said she had commenced physiotherapy several weeks after the surgery, and she has been having physiotherapy treatment to her left shoulder and left knee for the last few years.

   Dr Smith reported on 16 August 2021, noting Ms Mihajlovski had felt immediate pain in left shoulder but that the left lower limb injury had taken priority. There was reduced range of left shoulder movements. He recommended ultrasound-guided glenohumeral cortisone injection. He diagnosed posttraumatic capsulitis. On 8 February 2022, he performed left shoulder arthroscopy and capsular release.

   Ms Mihajlovski underwent a further procedure in August 2022 to remove the plate from her left leg. She said that this had been done in the hope that her symptoms would improve and the swelling would reduce. However, despite the surgery she has ongoing issues with movements of her left knee and there is recurrent knee swelling. She has difficulty squatting and is unable to kneel on the affected knee.

   She was referred to neurosurgeon, Dr Bassam Moses. He reported 24 August 2021 noting cervical spine examination was unremarkable. He discussed the capsulitis and suggested ultrasound-guided injection. There were further reviews, 14 September, 5 October 2021.

   Ms Mihajlovski said that in 2024, she was referred to the pain service at Royal Prince Alfred Hospital Clinic. She had seen Dr Zhao. He prescribed TENS and physiotherapy. She had also seen a psychiatrist and a nurse. She said Dr Zhao had prescribed medication for the pain but this had caused a lot of nausea. He had also prescribed an anaesthetic cream. She said it was okay when she applied it, it was compounded, but it does not seem she has continued this.

   CURRENT SYMPTOMS

   Ms Mihajlovski reported ongoing pain and stiffness in her left knee. She has difficulty squatting and can’t kneel on the affected knee. Her left knee and lower leg swell. She emphasised that her left leg was the most concerning issue.

   There is still restricted range of motion of her shoulder, and pain over the deltoid. She said she lacks power in her left arm, has issues with any reaching above head or any lifting.

   When she drives she needs to take a break after 30 minutes because her knee becomes too uncomfortable in a fixed position. She has to have a rest after 30 minutes of walking. She tends to ice her knee when she gets home as it swells.

   In relation to domestic chores, she said everyone chips in and she tries to do as much as she can. She said they rarely use the clothesline at home and use an airer instead.

   CURRENT TREATMENT

   Ms Mihajlovski takes Pristiq (Desvenlafaxine) 100mg a day, which is prescribed by her general practitioner. She uses one Endone tablet each night, and prior to that she was using Panadeine Forte. She takes paracetamol and ibuprofen as required.

   There was no other treatment.

   INVESTIGATIONS

   MRI scan left shoulder performed on 21 June 2021 showed a small intrasubstance partial thickness tear of supraspinatus, not necessarily acute, but on the background of minimal tendinopathy, no discreet rotator cuff tear, subacromial subdeltoid bursal effusion suggesting mild bursitis, no significant marrow oedema to suggest bony injury, low grade AC joint arthrosis, no labral tear, no high-grade chondral loss.

   MRI scan full spine performed on 28 June 2021 showed moderate left paracentral focal disc extrusion at T7/8, minimally indenting the cord, with potential irritation left T8 nerve root, multilevel spondylotic change, most marked lower cervical spine and L4/5, no significant disc bulge or protrusion otherwise, no canal or foraminal stenosis.

   Plain x-ray left shoulder performed on 13 August 2021 showed some sclerosis of the greater tuberosity, mild narrowing of the subacromial space, no soft tissue calcification, AC joint and glenohumeral joints are preserved.

   Plain x-ray left knee performed on 6 May 2022 showed that the fracture line was no longer visible, screws were in place in the lateral tibial plateau.

   PHYSICAL EXAMINATION

   Ms Mihajlovski was 173cm tall and weighed 90kg. She had a mildly antalgic gait and had difficulty walking on toes, but could walk on heels, but noting left knee discomfort.

   On examination of the cervical spine, she reported some tightness over the left side of the neck with movements, but she had a normal range of movement in flexion and extension and ¾ normal rotation bilaterally and full lateral flexion bilaterally. There was no asymmetry, muscle spasm or guarding. at end, three quarters normal range at end.

   On examination of the upper limbs, circumferential measurements were consistent with right hand dominance, arms measuring 30cm (10cm above the olecranon process) and right forearm 27cm and left 26cm (10cm below the olecranon process). Upper limb reflexes were present and symmetrical. Upper limb power was normal, but with some pain related giving way when testing the left upper limb. There were variable sensory changes over the left upper limb, which did not have a radicular distribution.

   On examination of the shoulders, movements were consistent at assessment today on three repetitions. Active movements measured using a goniometer were as follows:

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	170 °	100°
Extension	60 °	40°
Internal Rotation	90 °	80°
External Rotation	90 °	50°
Abduction	170 °	90°
Adduction	50 °	40°

When asked about the other assessments where the movements differed, she couldn’t recall how her shoulder was at those times.

On examination of the lower back, she had three quarters flexion and extension and normal lateral flexion and rotation. There was no asymmetry, muscle spasm or guarding. 

On examination of the lower limbs, circumferential measurements were 41cm at both thighs (measured 10cm above the upper pole of patella). Maximal calf girth was 41cm on the right and 42cm on the left, the latter due to swelling. There were normal reflexes bilaterally. There was reduced sensation over the lateral aspect of the left lower leg, consistent with the territory of the superficial peroneal nerve.

On examination of both knees. There was swelling around and distal to the left knee. Knee flexion was 110 degrees on the left movements and 130 degrees on the right, with full extension bilaterally.

The surgical scar over the lateral aspect of the left knee and leg measured 15cm. There was mild contour defect. The scar was sensitive to touch and there were obvious suture marks. There was mild colour contrast. When asked, she said that she tends to wear baggy pants or shorts as the scar becomes irritated if she wears tight trousers. There was no specific treatment of the scar.

There was scarring over the left shoulder from arthroscopy ports. These 1cm with no suture marks and no significant colour contrast. She also had scarring over the front of her right shoulder. This measured 7cm. There were no suture marks. When asked about this, she said that she had a large lipoma removed six weeks previously at Royal Prince Alfred Hospital.

On examination of both upper and lower limbs there was no mottling or cyanosis of the skin, there was no asymmetry of temperature, there was mild left lower limb oedema, but there was no dryness or moisture of the overlying skin, and skin texture was normal with no evidence of soft tissue atrophy. There were no hair or nail changes.”

RELEVANT LEGISLATION

Causation

1. Causation is dealt with at cls 6.5-6.7 of the Guidelines. An abridged form of the requirements is contained in cl 6.7 which states:

   “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. Further, the provisions of the Civil Liability Act 2002 apply, in particular ss 5D and 5E.

Assessment of permanent impairment

1. The assessment of the degree of permanent impairment is to be made in accordance with the Motor Accident Guidelines (the Guidelines).[10]

   [10] See s 7.21 of the MAI Act.

2. Version 9.3 of the Guidelines applies to the Review. Part 6 deals with the assessment of permanent impairment.

DETERMINATIONS

1. The review of the medical assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned.[11]

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

2. The Panel may confirm the certificate of assessment or revoke that certificate and issue a new certificate as to the matters concerned.[12]

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

3. The Panel refers to above re-examination report of Medical Assessor Gibson. The Panel reconvened on 9 May 2025 and discussed the re-examination report findings before collectively making the below determinations.

Diagnosis, causation and reasons

1. Ms Mihajlovski is a 49-year-old woman who was hit by a car whilst negotiating a pedestrian crossing on 5 May 2021. She was admitted to St George Hospital where she underwent operative reduction and internal fixation of a left tibial plateau fracture.

2. She had sustained a left tibial plateau fracture resulting in operative reduction and internal fixation and later removal of the hardware, leaving her with chronic swelling.

3. She subsequently developed left shoulder pain and stiffness. She also had neck and back symptoms. The Panel notes the hospital report had not recorded any neck, left shoulder or back symptoms. There was, however, mention of cervical tenderness in the ambulance report and left shoulder in her application for personal injury benefits. The claimant also told Medical Assessor Gibson that she had neck, left shoulder and low back symptoms ever since the motor accident. 

4. The Panel was satisfied, on balance, that the claimant sustained injuries to her neck, left shoulder and lower back as a result of the motor accident. As illustrated in the ambulance, and hospital records, there was a significant distracting injury, namely the left tibial plateau fracture for which the claimant was in severe pain and required immediate operative measures. The mechanism of injury was that of a pedestrian claimant being struck by a motor vehicle with the claimant having fallen to the ground. It is entirely plausible in the Panel’s view that the claimant could have sustained other injuries, such as to her neck, left shoulder and lower back. There was also no pre-accident medical history of any symptomatology to these areas.

5. The Panel therefore accepts that the claimant also sustained accident-related soft tissue injuries to her cervical spine and lumbar spine. There had been a soft tissue injury to her left shoulder with the development of post-traumatic capsulitis.

Permanent impairment

Cervical (Cervicothoracic) spine

1. 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 0% WPI.

Lumbar (Lumbosacral) spine

1. There were complaints of pain or symptoms, but without vertebral body compression or vertebral fracture. There were no clinical findings as detailed in Table 6.8, SIRA Motor Accident Guidelines. Therefore the lumbar spine injury would be assessed at DRE Impairment Category I, thus 0% WPI.

Left knee

1. There was sensory loss in the territory of the superficial peroneal nerve. In reference to Table 68, p89 AMA 4 this gives 2% WPI (5% LEI) this is combined with the diagnosis based estimate for tibial plateau fracture gives 2% WPI (5% LEI). Thus the combination yields 10% LEI or 4%WPI.

TEMSKI

1. The impairment due the scarring was assessed with reference to the TEMSKI scale for the evaluation of minor skin impairment. The most appropriate assessment, applying the "best fit" principle, is 1% WPI. This conclusion is based on the following criteria:

   ·        the scars have some effect on an activity of daily living;

   ·        the scars are visible with usual clothing;

   ·        there is colour contrast with the surrounding skin;

   ·        staple and suture marks were evident;

   ·        there is no significant contour defect;

   ·        no treatment for the scars is required, and

   ·        adherence of the scars is not a factor.

Left shoulder

1. Movements were measured. Total UEI (11%) was calculated with reference to Chapter 3, Fig 38, 41, 44, AMA 4 and then converted to 7% WPI using Table 3, p 20, AMA 4 Guides.

Shoulder Movements	Active ROM RIGHT	UEI%	Active ROM LEFT	UEI%
Flexion	170 °	1	100°	5
Extension	60 °	0	40°	1
Internal Rotation	90 °	0	80°	0
External Rotation	90 °	0	50°	1
Abduction	170 °	0	90°	4
Adduction	50 °	0	40°	0
1%	11%

1. The right shoulder movements were also restricted. Section 6.51 of the Guidelines 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.” There was no prior injury or condition affecting the right shoulder, so therefore deduction is appropriate.

2. Subtracting 1% WPI from 11% UEI gives 10% UEI, therefore referring to Table 3, 6% WPI for the left shoulder.

3. Combining 6% WPI for the shoulder with 4% WPI for the left knee and 1% WPI for scarring gives 11%WPI due to the subject accident.

4. The Panel noted the range of motion findings in the various planes as found by Dr Yuk Kai Lee dated 15 February 2023, Dr Andrew Keller dated 1 July 2023 and Medical Assessor Kuru on 10 October 2024. The Panel was of the view that the ranges in the various planes can vary and evolve over time, as can the claimant’s left shoulder condition. Differences in range of motion found by different examiners are therefore not considered inconsistencies that require explanation by the claimant. It is unlikely that a claimant can explain how their shoulder movements differed in the various planes over the years, a factor which was apparent in the present assessment where the claimant was giving consistent effort and could not explain why her movements differed between examiners, when asked.

5. The Panel therefore prefers to rely on its own findings on re-examination, noting that this would be the most recent assessment of the claimant’s left shoulder movements and most indicative of the claimant’s current WPI.

CONCLUSION

1. The claimant’s WPI as a result of the motor accident is 11% which is greater than 10%. As the Panel’s finding on WPI is different, the Panel revokes the certificate of Medical Assessor Robert Kuru dated 10 October 2024.

2. A new certificate is issued at the front of this statement of reasons.