Insurance Australia Limited t/as NRMA Insurance v Mohammed
[2025] NSWPICMP 381
•29 May 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Insurance Australia Limited t/as NRMA Insurance v Mohammed [2025] NSWPICMP 381 |
CLAIMANT: | Minhaj Ul Hasan Mohammed |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
REVIEW PANEL | |
MEMBER: | Belinda Cassidy |
MEDICAL ASSESSOR: | Drew Dixon |
MEDICAL ASSESSOR: | Margaret Gibson |
DATE OF DECISION: | 29 May 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); assessment of 15% impairment; insurer’s application for review under section 7.26 on basis insufficient reasons for neck assessment and inconsistency in shoulder measurements; Held – claimant re-examined; claimant demonstrated consistent range of motion, variation in other assessments due to time and related to activity levels; assessment of impairment 5% neck; 8% shoulder; total greater than 10%; MAC revoked; no matter of principle. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate issued by Medical Assessor Negus dated 19 August 2024. 2. Certifies that the claimant’s whole person impairment resulting from the injuries caused by the motor accident on 7 October 2020 is 13% which is greater than 10%. A statement setting out the Panel’s reasons for the assessment is included with this certificate. |
STATEMENT OF REASONS
INTRODUCTION
Minhaj Ul Hasan Mohammed was involved in a motor accident on 7 October 2020.
The claimant says he injured his neck, lower back, left shoulder, right hand, knee and leg in the accident and made a claim for statutory benefits and then damages against NRMA, the third-party insurer of the vehicle that he says caused his accident.
A medical dispute about the degree of the claimant’s whole person impairment (WPI) has arisen in connection with the damages claim and on 8 September 2023 the claimant referred that dispute to the Personal Injury Commission (the Commission) for assessment.
On 19 August 2024 Medical Assessor Negus determined the claimant had a WPI of 15% for the claimant’s physical injuries which is, of course, greater than 10%. The insurer was disappointed with that result and on 17 October 2024 lodged an application with the Commission seeking a review of the Medical Assessor’s decision.
On 20 November 2024, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review and on
26 November 2024 the President’s delegate convened this Review Panel (the Panel) to conduct the Review.By way of background, a number of other certificates have been issued in the dispute as follows:
(a) on 5 June 2024, Medical Assessor Grainge issued a certificate noting the claimant’s chest and lung injuries have resolved with no assessable permanent impairment;
(b) on 13 August 2024 Medical Assessor Barrett determined the claimant’s post-traumatic stress disorder had resolved leaving no assessable permanent impairment, and
(c) on 18 September 2024, Medical Assessor Grainge issued a “combined certificate” certifying that the claimant’s physical injury WPI assessments when combined resulted in a WPI of greater than 10%.
LEGISLATIVE FRAMEWORK
General
Mr Mohammed’s claim and entitlements to compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
In a claim for lump sum compensation, damages are assessed in accordance with common law principles as modified by the MAI Act. Under Part 4 of the Act, an injured person can make a claim for damages for both certain types of economic (pecuniary) losses and damages for non-economic (or non-pecuniary) loss.
Damages for non-economic loss are limited and restricted by the provisions in Division 4.3 of the MAI Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 4.13[1] and entitlement to those damages is restricted by s 4.11 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
[1] The current maximum as of October 2024 is $654,000.
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination.[2]
[2] See s 4.12 of the MAI Act.
Dispute resolution
Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Negus, further medical assessments and the review of medical assessments by this Panel.[3]
[3] Sections 7.20, 7.24 and 7.26.
Applications for review of a medical assessment are made to the President of the Commission on grounds that the assessment “was incorrect in a material respect” (s 7.26(1)). If the President, or his delegate is satisfied “there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect” then the President arranges for the application to be referred to a review panel consisting of a Member of the Commission and two Medical Assessors (s 7.26(2) and (2B)).
The review is not an appeal looking for error because the issue of error is dealt with by the President or his delegate. It is also not confined to the issues raised in the application (or the reply) but is “a new assessment of all the matters with which the medical assessment is concerned” (s 7.263A).
Rule 128 of the Personal Injury Commission Rules (the Rules) 2021 permits the Panel to determine its own proceedings and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.
Permanent impairment assessment
Permanent impairment is to be assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines)[4] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[4] Section 7.21. The current version of the Guidelines is Version 9.1 which is effective from 1 April 2023.
Due to the nature of the injuries sustained by the claimant, Chapter 3, the musculoskeletal chapter of the AMA 4 Guides is relevant.
ASSESSMENT UNDER REVIEW
Medical Assessor Negus examined the claimant on 30 May 2024 and issued his certificate on 19 August 2024.
He confirms at [2][5] that he was asked to assess the following injuries:
(a) cervical spine - disc bulge at C4/5, a broad-based disc bulge at C5/6 causing impression upon anterior CSF sleeve and broad-based disc bulge at C6/7/ soft tissue injury with radiculopathy into the upper limbs;
(b) lumbar spine - soft tissue injury with radiculopathy into the lower limbs;
(c) right shoulder - displaced/angulated fracture involving the surgical neck of the humerus extending to the greater tuberosity, thickening of the coracoacromial ligament and a hyperintense labrum reflecting degeneration without destabilisation of the bicipital anchor;
(d) left shoulder - soft tissue injury due to overuse of the left shoulder;
(e) right hand - soft tissue injury;
(f) right knee - soft tissue injury/ abrasion, and
(g) right leg - soft tissue injury.
[5] The numbers in square brackets are a reference to the section number in the Medical Assessor’s reasons.
At [3], the Medical Assessor summarises the submissions of the parties and at [4] – [5] says he has reviewed the documents provided with the application and reply and there were no additional documents.
The Medical Assessor records at [7] the claimant had no other medical conditions and took no regular medication.
The Medical Assessor at [8] records a consistent history of the accident and says there was a brief loss of consciousness, pain in the right shoulder and upper arm (fractured humerus on the right) and the development of a pulmonary embolism.
The claimant reported at [11] pain in the right side of the neck, pain in the right shoulder and down the arm (which he felt was radiating from the neck). The claimant is said to have denied pain in his lower back or either leg or any other body part.
On examination the Medical Assessor records at [14] that the claimant was tender in the mid-cervical spine, but all movements were full, there was no guarding, no non-verifiable radicular complaints and normal neurology in the upper limbs.
The lumbar spine and thoracic spine are documented in [15] and [16] as normal.
The claimant’s right shoulder motion was restricted compared to a normal left shoulder. The Medical Assessor notes at [19] that the claimant was consistent.
The Medical Assessor assessed the shoulder range of motion at 10% and the cervical spine at 5% based on “page 3/104” of the AMA 4 Guides but without reference to the Guidelines and without further reasoning.
ISSUES FOR DETERMINATION
Insurer’s submissions
The insurer submits that the Medical Assessor has failed to provide sufficient reasons and failed to consider the materials before him.
The insurer submits at [2.1] that despite finding no abnormality on examination of the cervical spine, the Medical Assessor has found 5% with no reasoning provided.
The insurer compares the range of shoulder motion found by Medical Assessor Negus with the findings of Dr Rosenthal and says the Medical Assessor has not explained why the range of motion has so significantly deteriorated. The insurer notes the findings by Dr Bodel were worse than the findings of Dr Rosenthal but that Dr Bodel’s examination was a year before Dr Rosenthal’s and the claimant may have improved in the interim.
The insurer’s original submissions lodged with the reply to the application for medical assessment[6] include the following:
(a) the claimant did not complain of lumbar spine symptoms to Dr Rosenthal or
Dr Bodel and clinical records do not report any injury to the lumbar spine [2.1] – [2.5];(b) contemporaneous records do not suggest the claimant injured his right hand, no treatment has been provided to it and Dr Rosenthal, Dr Bodel and Dr Dryson do not mention complaints in the right hand [2.6] – [2.10];
(c) the insurer concedes abrasions may have occurred on the right knee but note no records of treatment, Dr Rosenthal records no complaints, Dr Bodel records no neurological signs in the lower limbs, Dr Dryson did not mention lower limbs and says there is no impairment [2.11] – [2.15];
(d) in respect of the left shoulder, the claimant says he has overused his left shoulder but there is no record of left shoulder injury. The claimant told Dr Rosenthal his left shoulder moved normally, and Dr Bodel and Dr Dryson record no complaints. The insurer refers to a different AMA publication to suggest overuse injury is an “unsupportable myth” [2.16] – [2.21];
(e) the insurer submits that the claimant may have suffered a soft tissue injury and refers to pre-existing degenerative changes, Dr Bodel found asymmetry of motion and guarding but no clinical sign of radiculopathy and Dr Dryson expressed the view the disc bulges were pre-existing. The insurer says “as at September 2022 the claimant confirmed he was not having treatment for the neck and in July 2023, Dr Rosenthal found no asymmetry, no guarding and no signs of radiculopathy”. The insurer suggests there is no assessable impairment [2.22] – 2.25] to the neck, and
(f) the insurer agrees the claimant sustained a fracture of the right humeral head with development of capsulitis which Dr Rosenthal has assessed at 4%.
[6] Page 15 of the insurer’s review bundle. The Panel notes these submissions included the injury assessed by Medical Assessor Grainge and the psychological injury and will not summarise these submissions here.
Claimant’s submissions
The claimant takes issue with the timeliness of the insurer’s application noting:
(a) the combined certificate of Medical Assessor Grainge was issued on
19 September 2024;(b) 28 days from 19 September is 17 October, and
(c) the insurer’ application was lodged on 18 October 2024.
The Panel notes the President’s delegate dealt with the lateness issue noting the application for review was lodged on 17 October 2024 but not registered by the Commission until
18 October 2024.The claimant submits at [20] that the Medical Assessor found a neck injury was sustained and at [21] that the claimant reported right sided neck pain and radiating pain, yet the Medical Assessor found no non-verifiable radicular symptoms. The claimant refers at [22] to the imaging and says the claimant’s diagnosis is consistent with that finding at [23] and that with a neck injury and radiating symptoms, the 5% WPI is no error.
The claimant also submits that the claimant sustained a fracture of the right humeral head at [29] and submits at [30] that a different finding of range of motion is not an inconsistency which must be put to the claimant. The claimant argues at [32] that cl 6.41 provides for inconsistency between measured and observed range of motion which is not an issue and that at [33] there is no obligation for the Medical Assessor to put to the claimant measurements taken a year before.
Procedural matters
On 10 December 2024 the Panel issued directions to the parties seeking bundles of documents. The insurer was to confirm its documents by 24 January 2025 and the claimant was to provide his bundle by 21 February 2025.
The insurer confirmed in a message dated 24 January 2025 it had no additional documents and the claimant lodged a bundle of documents on 25 February 2025.
The Panel met on 12 March 2025 and reported to the parties the next day.
The Panel referred to the seven injuries listed and assessed by Medical Assessor Negus and noted he found impairment in only two. The Panel asked the claimant’s legal representative to confirm with the claimant that he maintains he has an accident-related impairment to all of the other parts of his body.
The insurer was asked to confirm there was no dispute about causation of the neck and right shoulder injury and that the real issue in dispute was the degree of impairment in those parts of the claimant’s body.
The Panel confirmed the extent of the documents that would be considered and advised the parties of the date of the re-examination.
The claimant responded on 27 March 2025 advising that he maintained he had an accident-related impairments in all of the injured parts of his body and that all seven areas of his body should be reassessed.
The insurer confirmed on 17 April 2025 that there was no dispute about causation of a neck and right shoulder injury.
REVIEW OF THE EVIDENCE
Claim form and claim documents
The claim form was signed and dated 8 October 2020.[7] Mr Mohammed reports the accident occurred on 7 October 2020 at 9.00pm. He records the circumstances of the accident as follows:
"When I was going to work, there was roundabout. The car who hit me didn’t giveway. He was on the left side.
T-boned by a car on a (R) right side whilst riding my scooter.”
[7] Page 21 of the insurer’s bundle and page 22 of the claimant’s bundle.
The claimant does not provide any details of his injuries. He says he was taken to St George Hospital in an ambulance and discharged on 8 October 2020. He denies any previous illness or injury affecting the same or similar parts of his body at the time of the accident.
Mr Mohammed says at that time that he has not worked since 7 October 2020 “to date and continuing.”
Treating medical records and reports
There is a discharge summary from St George Hospital[8] concerning the claimant’s admission on 7 October and his discharge on 8 October 2020.
[8] Page 29 of the claimant’s bundle.
The history recorded by the hospital was of a hit on the right side, the claimant was dragged 12m, he lost consciousness and was amnesic to events. The claimant was reported to have fractured the right upper arm and sustained a small abrasion over the right knee.
There is a further discharge summary from St George Hospital[9] stating:
(a) the claimant was admitted on 13 October 2020 and discharged on
15 October 2020;(b) the claimant was 38 years of age;
(c) his presenting diagnosis was of “provoked pulmonary embolism”;
(d) he had right upper limb pain following a fractured humerus and was to take Panadol and Endone only when needed;
(e) he was to follow up with the respiratory clinic in three months’ time having had a scan on 17 December, and
(f) the past medical history included a provoked pulmonary embolism in 2020 and a right humeral fracture in the car accident on 7 October 2020.
[9] Page 27 of the insurer’s bundle, page 37 of the claimant’s bundle.
General practitioner’s (GP) records from before the accident have been provided with a single entry in March 2012 (ear problem) and a visit on 11 September 2020 (headache, low energy, fatigue). The claimant reported poor sleep, early morning wakening, depressed mood, low self-esteem, irrational fear, panic attacks. The claimant was diagnosed with an adjustment disorder with depressed and anxious mood. The claimant was counselled and a mental health plan suggested.
Records from after the accident include a letter from Dr Tan, orthopaedic surgeon (it is not clear to whom) dated 12 October 2020. He records the accident (left hand side impact) and the fracture. The claimant was complaining of central chest pain with breathing or coughing and he was sent back to emergency.
Dr Dao, orthopaedic surgeon wrote to the claimant’s GP on 26 November 2020[10] noting there were signs of healing and suggesting the claimant commence physiotherapy.
[10] Page 83 of the insurer’s bundle.
On 6 January 2021 Dr Dao reported that the claimant had no pain and was happy with his program. Forward elevation was 100 degrees, external rotation at 45 degrees and internal rotation to L3 level. Dr Dao recommended the claimant perform light duties and advised he did not need to see the claimant again.
Dr Dao did however see the claimant again on 23 November 2021. Forward elevation remained at 100 degrees, external rotation 70 degrees and internal rotation to L5. An MRI scan showed the fracture had united, the rotator cuff tendons were intact but there was thickening of the joint capsule and fluid. The doctor advised that capsulitis was common and took time to improve. He foreshadowed the possibility of worsening arthropathy and never regaining full range of motion.
The claimant has provided allied health recovery request forms (AHRR) for physiotherapy (20 November 2020 and 17 May 2021) psychological counselling (23 November 2020), certificates of fitness and return to work plans.
Radiology
On 10 October 2020 the claimant had an X-ray of his right shoulder showing “comminuted minimally displaced / angulated factures involving the surgical neck of the humerus extending to greater tuberosity”.
On 16 October 2020 a fracture follow-up X-ray was done showing “stable” appearance of the fracture with no convincing evidence of osseous union.
On 4 January 2021 a further X-ray recorded that the fracture line was still visible, there was no bridging callus formation, minor sclerosis and no significant dislocation at the glenohumeral articulation.
A CT of the claimant’s cervical spine was performed on 20 January 2021 showing “mild degenerative changes with mild disc bulges” at three levels C4-C7 with no significant impression or compression.
Medico-legal reports
Dr Bodel, orthopaedic surgeon, provided the claimant’s lawyers with a report dated
14 April 2022. He records the following “summary of injuries”:(a) fracture of the right humerus at the right shoulder;
(b) injury to cervical spine;
(c) post-traumatic pulmonary embolus, and
(d) psychological sequelae.
He has a history of the accident at a roundabout and an impact form the left side at 60kmph. The claimant reported being thrown to the ground and dragged for 12m and that there was a brief loss of consciousness.
The claimant reported immediate onset of severe pain in the right shoulder and arm, neck and right side of his body including the knee. Dr Bodel notes the fracture was not surgically fixed and the arm was immobilised in a sling and cuff. The claimant had physiotherapy and returned to work three or four months after the accident. The claimant had developed a deep vein thrombosis (DVT) and possible pulmonary embolism and was placed on anticoagulants.
The claimant denied any previous illnesses or injuries.
Dr Bodel records the claimant’s complaints of pain in the upper arm and right shoulder, pain in the base of the neck over the top of the right shoulder, pain aggravated by head down, arms overhead or pushing, pulling or lifting and disturbed sleep and discomfort in the right knee and calf.
It was noted the claimant had come from India in 2009 but had maintained his overseas license. He had not returned to scooter riding and had not driven a car since the accident. He was struggling with household maintenance and cleaning.
There was tenderness and guarding and loss of left sided neck motion more than the right. The claimant was tender over the rotator cuff and his shoulder motion was reduced on the right (see attachment A to these reasons). There was weakness and impingement on the right but no instability. There was no restriction in any other joint of the right arm and no clinical signs of radiculopathy.
There was mention of the thoracic spine but no mention of the lumbar spine. There was mild tenderness in the right calf with no swelling and some slight restriction of knee movement. There was no mention of hands or the left shoulder.
Dr Bodel assessed impairment at 14% as follows:
(a) right shoulder 9%, and
(b) neck 5%.
Dr Dryson, occupational physician provided a report to the claimant’s solicitor dated
20 September 2022 after an examination on the same date. He has a consistent history of a right sided impact and ambulance to hospital.He has a history of the claimant coming to Australia in 2009, achieving a Bachelor of Business and Accounting and studying for a graduate diploma in leadership strategy.
The claimant reported ongoing pain in his right shoulder, neck pain, chest pain (resolved) and psychological sequelae. There is no mention of left shoulder symptoms or lower back pain and no complaints of the hands or right leg.
The claimant had returned to work as a console operator, was taking pain killing medication two to three days a week but otherwise having no treatment.
Dr Dryson assessed impairment as:
(a) right shoulder 9%, and
(b) neck 5%.
Dr Rosenthal examined the claimant on 12 September 2022 and reported to the insurer on 21 September 2022. He has a history of a car coming from the claimant’s left. The claimant complained of neck and right shoulder pain and stiffness. He denied numbness in the hands or radicular symptoms. He did not mention symptoms in the left shoulder or lower back.
The claimant said he was not having any painkillers and was not having physiotherapy but planning more. He had recently travelled overseas.
The claimant’s university and college courses were noted and the claimant said he was being financially supported by his brother. He had resigned in April 2022 and was studying full time. He was said to be looking for light retail work. Mr Mohammed says he has a wife and two children in India, and he regularly travels there to visit them.
Dr Rosenthal noted there was no wasting in the shoulder girdle but “significant self-restricted movement which varied on repeat testing”. There was positive impingement in the right shoulder but no instability or crepitus. There was marginal restriction of the neck movements but no dysmetria and no guarding and no neurological defects. He assessed 0% for the neck and was of the view the right shoulder had not stabilised.
Dr Vickery reported to the insurer on 13 October 2022. He records an accident with a vehicle coming from the left, a collision and the claimant falling to the right, landing on his right shoulder. He considered there was no impairment, no psychological incapacity and no WPI.
Dr Rosenthal provided a report to the insurer on 4 August 2023 after an examination on
31 July 2023. The claimant was working at a petrol station as a retail manager. He had moved to Wingham. He complained of constant neck pain, no radicular symptoms and intermittent right shoulder pain and restricted movement. The claimant was having no treatment but doing his own exercises.Mr Mohammed’s wife and two children had arrived from India.
He assessed shoulder range of motion at 4% and no neck impairment.
Other assessments
Medical Assessor Grainge examined the claimant on 30 May 2024 and issued a certificate on 5 June 2024. He notes he was asked to assess the claimant’s chest injury “pains with difficulty breathing and respiratory issues” and lung injury “posttraumatic pulmonary embolism due to the right humeral fracture, a deep vein thrombosis multiple pulmonary artery filling defects in the left lateral posterior basal segmental arteries and a wedge-shaped ground glass opacity in the left base which may represent a pulmonary infarction”.
The Medical Assessor has a history of a transient loss of consciousness and the onset of right shoulder, right arm, neck and right knee pain. He noted the onset of breathlessness, the therapy provided in hospital and as an outpatient and the gradual resolution of the breathlessness and chest pain.
The claimant reported “some subjective breathlessness or difficulty breathing” when the weather is extremely hot.
Medical Assessor Grainge says that the pulmonary emboli were directly caused by the accident and his period of immobility after it. He noted these injuries had resolved leaving no impairment.
Medical Assessor Barrett examined the claimant on 29 July 2024 and issued her certificate on 13 August 2024. She noted that post-traumatic stress disorder, anxiety and depression were referred for assessment. She notes that at the time of the accident the claimant was living in a unit with others waiting for his wife and two children to come to Australia.
Medical Assessor Barrett has a history of the accident and a period of unconsciousness. The claimant complained of right shoulder pain (he is right handed) and neck pain.
She records a history of nightmares and flashbacks, avoidance of scooter riding and pain with many activities. His condition improved and he returned to driving. He said he was held up whilst at work in a petrol station but developed no psychiatric symptoms and had no time off work. He had some worry about his physical injuries and the progress of them with time as he aged.
The claimant shared household chores with his wife, spent time with his children and was working full time.
While she diagnosed a post-traumatic stress disorder, she found there was no separate anxiety or depressive disorder and that the post-traumatic stress disorder had resolved leaving no impairment.
RE-EXAMINATION FINDINGS – MEDICAL ASSESSOR DIXON
The claimant attended the re-examination with Medical Assessor Dixon on 16 May 2025 at the Commission’s medical suites.
History provided by the claimant
Mr Mohammed was riding his motorbike when he was hit by a car at approximately 60 kmph. He says he was dragged up the road. Although he was wearing a helmet and there was no direct head injury, he reported a brief loss of consciousness. He remembers being taken by ambulance to St George Hospital where he was found to have an injury to his cervical spine and a fracture of the proximal end of the right humerus at the right shoulder.
The claimant’s shoulder injury was managed non-surgically in a sling (which he described as a collar and cuff). According to his records his injury was complicated by the development of a deep vein thrombosis (DVT) in mid-October 2022, where he had pain and swelling at the right knee and calf and he was put on anti-coagulants for that. He then developed a small pulmonary embolism, and the anti-coagulants were continued for the next six months.
Mr Mohammed said he had physiotherapy for his neck and right shoulder.
I asked Mr Mohammed about the other parts of his body that had been identified for assessment, and he said:
(a) he had no problems at all with his left shoulder;
(b) he had some lower back pain initially, but this had settled and he has been symptom free for a while now;
(c) he has no symptoms in either of his hands and does not recall any injury to them;
(d) he had an occasional click in his right knee, but he has no pain and has not experienced any locking or instability in the knee, and
(e) his right leg, where he had the DVT, had settled and he has no pain or symptoms there.
Mr Mohammed informed me that his only concerns now were his neck and right shoulder.
Current complaints
Mr Mohammed complained of pain and stiffness in his right shoulder and pain and stiffness of his neck with pain in the region of the trapezius muscle and in the deltoid muscle as far as its insertion on the right side. I asked him specifically about any symptoms in his right arm and he specifically denied any radiating pain into his right arm.
He reports difficulty raising his right arm above shoulder height and difficulty with heavy lifting and carrying due to right shoulder brachialgia. He had difficulty pushing and pulling with his right arm due to shoulder pain and he has difficulty sleeping on the right shoulder due to pain and his neck pain also disturbs his sleep.
Mr Mohammed reported difficulty driving, reverse parking, changing lanes and checking the blind spots due to neck pain and stiffness.
Work and social history
His background is he came to Australia from India in 2009 and has a Graduate Diploma in Business and Management.
At the time of the accident, he had been a console operator at a 7-Eleven at Lakemba. He had returned to this work up until 2022 and is now a Store Manager for Shell, Wingham from 15 August 2022. He reports no work restrictions and that he can work full time. He says he does have to be careful with heavy lifting.
He lives in a rental house with his wife and three young children. He reports difficulty at home doing heavy tasks such as cleaning windows and cleaning the toilets and bathroom. He is unable to do the yard work and someone else does the garden and lawns. He has difficulty cleaning his car and driving and has difficulty playing sport such as cricket. He has difficulty doing his hair.
Medical examination
Mr Mohammed was measured as 180cm tall and weighed 65kg.
There was stiffness of his cervical spine with movements measured three times. There was consistent restriction of motion as follows:
(a) flexion decreased by one quarter and pain on neck extension which was decreased by one third;
(b) lateral rotation was decreased by one third on both sides, and
(c) lateral flexion to the left was associated with pain in his right trapezius muscle and decreased by one third and to the right movement was reduced by one quarter.
Mr Mohammed was tender over his neck and the right shoulder. There was guarding with spasm of his right trapezius muscle and his supraclavicular brachial plexus was tender and his brachial plexus stretch test was positive on the right indicating possible nerve root irritation in the cervical region. His cervical foraminal compression test was equivocal.
There was no neurological deficit of either upper extremity:
(a) reflexes were present, brisk and symmetrical;
(b) there were no sensory losses over the upper or lower arm;
(c) thenar power, intrinsic power and grip strength were grade 5 out of 5 on both sides, and
(d) his forearms were equal and measured 22.5cm and his upper arms equal and measured 26cm, 10cm below and above the elbow respectively.
The claimant’s active shoulder measurements were measured three times with a goniometer and recorded as:
Unit of motion
Left (in degrees)
Right (in degrees)
Flexion
180
110
Extension
50
40
Abduction
180
80
Abduction
50
30
Internal rotation
90
50
External rotation
90
70
There was stiffness on elevation of his right shoulder and his shoulder girdle power on the right was grade 4 out of 5. He had a full range of motion of his left shoulder and the power was grade 5 out of 5.
There was no abnormality of movement on examination of the hands or in either upper limb.
Mr Mohammed’s gait was normal. He could toe and heel walk readily. His squat test was associated with an audible click in his right knee. He has full range of motion of both knees with retropatellar clicking in the right (not the left) but no instability, and both knees were stable.
There was no wasting of either thigh measuring 41cm, 10cm above the superior pole of the patella but there was minor swelling of his right leg of 1cm, measuring 30cm at the right calf compared with 29cm on the left. He had a full range of motion of his knees with flexion through to 130 degrees and a normal range of motion of the ankles, feet and toes.
While there was loss of motion in the lumbar spine it was symmetrical with flexion and extension decreased by one quarter and lateral flexion was decreased by one quarter on both sides. There was no spasm, no guarding and no tender areas today. His straight leg raise was 70 degrees bilaterally without neurological deficit or complaints of pain. Reflexes were present and equal, power was grade 5 out of 5 and there was no sensory loss in either of the lower limbs.
Consistency
Mr Mohammed’s range of motion was entirely consistent during the re-examination. In the light of the insurer’s submissions particular care was taken in respect of the shoulders. The claimant’s demonstrated active range was consistent across three repetitions of each of the six units of motion in the shoulder. There was therefore no inconsistency within the examination. Mr Mohammed was observed dressing and undressing and at other times during the course of the examination and there was no indication of any inconsistency between the formal examination and the informal observation.
The range of motion in his right shoulder has however varied since the accident (see the table at the end of these reasons). The claimant was asked if he could explain this variation and he said he feels his shoulder has generally improved in the four and a half years since the accident but that sometimes he can aggravate his right shoulder at work or at home which increases his pain and restricts his movement.
Overall, I was satisfied that he was doing his best and that the movements demonstrated were genuine.
Radiology
The claimant attended with scans as requested but not the ultrasound images.
The X-ray of his right shoulder on 18 October 2020 showed a comminuted fracture of the upper end of the humerus involving the neck of the humerus and the greater tuberosity and there was no dislocation of the AC joint.
X-ray of the right shoulder on 4 January 2021 showed that his fractures had healed.
CT scan of the cervical spine on 20 January 2021 showed degenerative changes and some disc bulging at C5/6 level but no spinal cord or nerve root compromise and no fractures.
MRI of the right shoulder on 4 October 2021 showed a healed fracture of the surgical neck with bony deformity with mild posterior angulation and a secondary osteoarthritis of the glenohumeral joint with mild synovitis. There was no cuff tear noted and there was an undisplaced tear of the anterior labrum and degeneration of the labrum superiorly.
X-ray of the right shoulder on 14 November 2022 showed the fractures were stable at the surgical neck and greater tuberosity of the right humerus.
CONSIDERATION OF THE ISSUES
Causation
The claimant alleges injury to his neck, lower back, right and left shoulder, right hand, right knee and right leg. The Panel notes the claimant sustained a DVT and pulmonary embolism as a result.
The Medical Assessors have considered the mechanism of injury, that the claimant was riding a motor scooter and was hit from the right and was dragged down the road. The Medical Assessors are satisfied that the mechanism of the accident and the forces involved could have caused the injuries reported by the claimant.
The insurer has conceded that the claimant sustained some form of neck injury and shoulder injury in the accident. The Panel has considered the hospital notes and the GP notes and is of the view that the insurer’s concession is appropriate. The Medical Assessors are satisfied the claimant sustained a soft tissue injury of his cervical spine which has aggravated degenerative changes in his cervical spine. He has also sustained a comminuted fracture of the surgical head of the right humerus. The Medical Assessors note the ultrasound of October 2021 which indicates there are abnormalities in the soft tissues of the capsule of the right shoulder. The Medical Assessors are of the view that these abnormalities were either caused by the accident or have been aggravated and rendered symptomatic by the accident.
The Panel also accepts that the claimant sustained a right knee injury in the accident as the hospital notes record a graze over the right knee. The Panel notes there is no evidence of a direct, specific or frank right leg injury but that the claimant developed a DVT in his right leg. This was successfully treated and has left him with no assessable musculo-skeletal impairment.
The Panel has however been unable to locate evidence in the contemporaneous records of any direct injury to the left shoulder, right hand and lower back and is not satisfied that direct, frank or specific injuries were sustained in these parts of the claimant’s body in the accident. In the light of the claimant’s history given to Medical Assessor Dixon, and the absence of any abnormality in these areas, the Panel does not propose to deal further with the issue of causation.
IMPAIRMENT ASSESSMENT
General
The claimant confirmed with the Medical Assessor that he has no concerns other than his neck and right shoulder.
Cervical spine assessment
Assessment of the spine requires consideration of Chapter 3 of AMA 4 Guides. The Guidelines permit only the diagnostic related estimate (DRE) method of assessment (cl 6.111).
The spine is divided (cl 6.131) into three regions: cervical; thoracic, and lumbar. If injury to the spine is alleged in more than one region, then each of the regions is assessed and the percentage impairments combined to obtain a total spinal impairment (6.131). If there are multiple impairments within one spinal region the impairments are not combined but the highest rating category is chosen (6.132).
There are five diagnostic related categories, and a number of indicia provided (see Table 6.7). Clause 6.125 provides that the starting point is Table 6.7 and the DRE descriptors from pages 102 – 107 of the AMA 4 Guides as amended by the clause.
The first category is DRE category I which is selected if there are symptoms which may include pain. The remaining categories are based on neurological differentiators (for example radicular symptoms versus radicular signs) and structural inclusions (for example vertebral fractures).
The DRE category II requires there to be:
(a) pain with;
(b) guarding or;
(c) non-uniform range of motion – dysmetria or;
(d) non-verifiable radicular complaints defined in Table 6.8 as:
(i)symptoms (shooting pain, burning sensation, tingling), and
(ii)which follow the distribution of a specific nerve root but no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes.
A finding of DRE category III requires there to be radiculopathy which is defined in cl 6.138 as “the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination”:
(a) loss or asymmetry of reflexes (see Table 8);
(b) positive sciatic nerve root tension signs (see Table 8);
(c) muscle atrophy and/or decreased limb circumference (see Table 8);
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
If any impairment to the claimant’s shoulders results from an injury to the neck, then, in accordance with the decision of the Court in Nguyen v Motor Accidents Authority of New South Wales and Anor [2011] NSWSC 351. That impairment must be assessed, and its value included in the determination of the claimant’s total WPI.[11]
[11] This is referred to as the “Nguyen Principle”.
In Mr Mohammed’s case there is no radiological imaging to suggest any structural inclusion such as a fracture. The radiology does confirm a C5/6 disc bulge but this was reported as not causing any cord or nerve root compromise.
Mr Mohammed has one possible sign of radiculopathy in that his brachial plexus stretch test was positive on the right indicating possible nerve root irritation in the cervical region. However, he does not satisfy a category III impairment because he does not have two signs of radiculopathy. At the re-examination with Medical Assessor Dixon, there were no abnormalities of reflexes, no muscle atrophy or decreased upper limb circumference, no muscle weakness and no sensory loss.
There was pain (tenderness) and guarding evident at the re-examination but Mr Mohammed had no non-verifiable radicular complaints as he did not complain of radiating or shooting pain in either of his upper limbs. He did have asymmetrical loss of cervical spine motion, and because of that and the presence of guarding, Mr Mohammed therefore satisfies the criteria for a DRE category II impairment.
Right shoulder impairment
The assessment of upper extremity impairment (UEI) is governed by Chapter 3, section 3.1 of the AMA 4 Guides. The upper extremity is divided into four regions: the shoulder, the elbow, the wrist and the hand. There are specific rules for combining certain impairments (such as the four different impairments for the index finger are combined to determine the index finger impairment) and adding (such as the impairments for the thumb and the fingers are added to obtain a hand impairment). Regional impairments such as the hand and wrist impairments are combined to obtain a total UEI which is then converted to a WPI using Table 3 on page 20 of AMA 4 Guides.
There are several methods of assessment:
(a) amputation (part 3.1b);
(b) sensory loss of the digits (part 3.1c);
(c) abnormal range of motion (part 3.1d);
(d) peripheral nerve disorders (part 3.1k);
(e) vascular disorders (part 3.1l), and
(f) other disorders (part 3.1m).
In Mr Mohammed’s case, there has been no amputation, sensory loss in the digits, peripheral nerve or vascular disorders. The Medical Assessors note that of the other disorders in part 3.1m none of these are relevant.
The claimant has sustained a fracture of the humerus in the region of the shoulder. The ultrasound of October 2021 indicates that the soft tissues in the shoulder are not normal and their function has been impaired as a result. The Panel’s view is that the most appropriate method of assessing shoulder impairment is in accordance with part 3.1d. The abnormal range of motion requires the measurement of three functional units of motion:
(a) flexion and extension;
(b) abduction and adduction, and
(c) internal and external rotation.
Measurement of motion is done using a goniometer and only active motion (not passive) is measured. Each of the six UEI figures is added to get a total UEI percentage impairment which is then converted to a WPI in accordance with table 3 on page 20 of AMA 4 Guides.
The Guidelines notes the potential for difficulties with the range of motion method and says:
“6.50 Although range of motion appears to be a suitable method for evaluating impairment, it can be subject to variation because of pain during motion at different times of examination and/or a possible lack of cooperation by the person being assessed. Range of motion is assessed as follows:
(a) a goniometer should be used where clinically indicated
(b) passive range of motion may form part of the clinical examination to ascertain clinical status of the joint, but impairment should only be calculated using active range of motion measurements
(c) if the medical assessor is not satisfied that the results of a measurement are reliable, active range of motion should be measured with at least three consistent repetitions
(d) if there is inconsistency in range of motion, then it should not be used as a valid parameter of impairment evaluation (see clause 6.40 of these Guidelines)
(e) if range of motion measurements at examination cannot be used as a valid parameter of impairment evaluation, the medical assessor should then use discretion in considering what weight to give other available evidence to determine if an impairment is present.”
When assessing impairment to an injured joint, the other joint must be considered. This is on the basis that both joints are likely to have the same range of motion. The use of the contralateral (and uninjured) joint is explained in the Guidelines as extracted below:
“6.51 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. The rationale for this decision must be explained in the impairment evaluation report.
6.52 When using clause 6.51 (above), the medical assessor must subtract the total upper extremity impairment (UEI) for the uninjured joint from the total UEI for the injured joint. The resulting percentage UEI is then converted to WPI. Where more than one joint in the upper limb is injured and clause 6.51 is used, clause 6.51 must be applied to each joint.”
The re-examination findings of Medical Assessor Dixon are adopted. The Panel notes he undertook three repetitions of each unit of motion and expressed the view the claimant was consistent. The Panel therefore accepts the measurements as reliable. They result in the following impairments.
Unit of motion
Degree of motion
Upper extremity impairment
Flexion
110
5% Figure 38 p 43 AMA 4 (normal 180)
Extension
40
1% Figure 38 p 43 AMA 4 (normal 50)
Abduction
80
5% Figure 41 p 44 AMA 4 (normal 180)
Abduction
30
1% Figure 41 p 44 AMA 4 (normal 50)
Internal rotation
50
2% Figure 44 p 45 AMA 4 (normal 90)
External rotation
70
0% Figure 44 p 45 AMA 4 (normal 90)
The total of these results in a 14% upper extremity impairment which equates to 8% WPI in accordance with Table 3 at page 20 of the AMA 4 Guides.
The Panel has considered the uninjured left shoulder. The claimant’s range of motion in that shoulder was entirely normal and reinforces to the Panel that any impairment in the right shoulder is caused by the accident.
The Panel notes that the claimant’s impairment assessment has varied from Dr Rosenthal (4%) to Medical Assessor Negus (10%) and he has been assessed at 9% by both Dr Bodel and Dr Dryson. The Panel’s finding of 8% right shoulder impairment shows his shoulder motion is improving but has varied over time. The Panel accepts the claimant’s explanation that his symptoms have varied in the length of time since the accident and depends on the level of activity at work and at home.
Other areas of the body
Right knee
The assessment of lower extremity impairment is governed by Chapter 3, section 3.2 of the AMA 4 Guides. There are 13 methods of assessment provided for as follows:
(a) limb length discrepancy (3.2a);
(b) gait derangement (3.2b);
(c) muscle atrophy (3.2c);
(d) manual muscle-testing (3.2d);
(e) range of motion (3.3e);
(f) joint ankylosis (3.2f);
(g) arthritis (3.2g);
(h) amputations (3.2h);
(i) diagnosis-based estimates (3.2i);
(j) skin loss (3.2j);
(k) peripheral nerve injuries (3.2.k);
(l) causalgia and reflex sympathetic dystrophy (3.2l), and
(m) vascular disorder (3.2m).
Each limb is assessed and each injury (if there are multiple injuries in each limb) is assessed separately. Clause 6.70 and table 6.5 states which of the above methods can and cannot be combined and table 6.6 provides guidance in selecting the most appropriate method. The Guidelines at cls 6.76 to 6.110 provides specific interpretation and guidance on the various methods of assessment.
Mr Mohammed sustained a right knee injury. It has not been investigated by way of radiology and the claimant’s only symptom is audible crepitation in the right knee. He has a normal range of motion and has had no incidents of instability. The Medical Assessors have considered Chapter 3 and the various methods of impairment assessment and are of the view that none of them permit any allowance for right knee impairment. Section 3.2g (Arthritis) of AMA 4 Guides would permit a 2% impairment in a patient with a history of direct trauma (which Mr Mohammed has had) and crepitation on physical examination, but this also requires patellofemoral pain and Mr Mohammed did not complain of any knee pain at all.
Mr Mohammed has no assessable impairment for any right knee injury.
Lower back
The claimant did not complain of pain in this lower back, he had no dysmetria, guarding and did not report any non-verifiable radicular symptoms within the meaning of the Guidelines. He was examined and none of the five signs of radiculopathy were not found.
The claimant cannot be assessed as having a DRE category I impairment (as he did not complain of pain) and he does not have a DRE category II or III impairment.
If he sustained an injury to his lower back he has recovered from it leaving no assessable impairment.
Right leg, right hand and left shoulder
The claimant’s right leg, right hand and left shoulder were all examined, and no abnormality was detected. There is no assessable impairment in respect of any of these body parts and finding of 0% WPI is made in respect of them all. If those parts of his body were injured in the accident, they have recovered and any residual symptoms do not attract an impairment according to the AMA 4 Guides and the Guidelines.
CONCLUSION
Mr Mohammed has the following impairments:
(a) right hand, no injury or no assessable impairment;
(b) lower back, no injury or no assessable impairment;
(c) left shoulder, no injury or no assessable impairment;
(d) right leg, no assessable impairment;
(e) right knee, no assessable impairment;
(f) cervical spine, DRE category II 5%, and
(g) right shoulder, 8%.
Injuries to different parts of the body are combined in accordance with the combined values chart on page 322 of the AMA 4 Guides. While 8% combined with 5% equals 13%.
While the Panel has come to the same conclusion as Medical Assessor Negus, that is that the claimant has a WPI of greater than 10%, the Panel has arrived at a different percentage (13% and not 15%). As Medical Assessor Negus included the actual percentage in his certificate it follows that his certificate must be revoked.
There is no need for the Panel to interfere with the “combined certificate” issued by Medical Assessor Grainge on 18 September 2024. That certificate does not include the particular percentage certifying simply that the claimant has a WPI of greater than 10%.
ATTACHMENT A
Shoulder comparison. All measurements are in degrees. All dates are the date of the examination (not the date of the report)
| LEFT (normal) | Dr Bodel | Dr Dryson | Dr Rosenthal | MA Negus | Panel | |
| 14/02/22 | 20/09/22 | 12/09/22 | 31/07/23 | 30/05/24 | 16/05/25 | |
| Flexion (180) | 180 | No record | 180 | 180 | 180 | 180 |
| Extension (50) | 50 | No record | 50 | 50 | 50 | 50 |
| Abduction (180) | 180 | No record | 180 | 180 | 180 | 180 |
| Adduction (50) | 50 | No record | 50 | 40 | 50 | 50 |
| Internal rotation (90) | 90 | No record | 90 | 80 | 90 | 90 |
| External rotation (90) | 90 | No record | 90 | 80 | 90 | 90 |
| RIGHT (normal) | Dr Bodel | Dr Dryson | Dr Rosenthal | MA Negus | Panel | |
| 14/02/22 | 20/09/22 | 12/09/22 | 31/07/23 | 30/05/24 | 16/05/25 | |
| Flexion (180) | 90 | 60 | 90 | 140 | 90 | 110 |
| Extension (50) | 30 | 45 | 50 | 50 | 40 | 40 |
| Abduction (180) | 70 | 70 | 90 | 140 | 80 | 80 |
| Adduction (50) | 10 | 20 | 30 | 40 | 40 | 30 |
| Internal rotation (90) | 60 | 90 | 60 | 70 | 30 | 50 |
| External rotation (90) | 60 | 35 | 70 | 70 | 80 | 70 |
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