Insurance Australia Limited t/as NRMA Insurance v Moutrage

[2025] NSWPICMP 250

DETERMINATION OF REVIEW PANEL

CITATION:

Insurance Australia Limited t/as NRMA Insurance v Moutrage [2025] NSWPICMP 250

CLAIMANT:

Marie-Anne Moutrage

INSURER:

Insurance Australia Limited t/as NRMA Insurance

REVIEW PANEL

MEMBER:

Anthony Scarcella

MEDICAL ASSESSOR:

Christopher Oates

MEDICAL ASSESSOR:

Margaret Gibson

DATE OF DECISION:

10 April 2025

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; review of Medical Assessment Certificate (MAC); whole person impairment (WPI); Medical Assessor determined 18% WPI; review sought by insurer under section 63; consideration and application of clauses 1.5 to 1.7 of the Motor Accident Permanent Impairment Guidelines (the Guidelines) in respect of causation; clauses 1.50 and 1.116-1.132 of the Guidelines in respect of the assessment of permanent impairment; Held – MAC revoked; claimant sustained injuries that give rise to 10% WPI.

DETERMINATIONS MADE:  

CERTIFICATE OF DETERMINATION

Issued under s 61 of the Motor Accidents Compensation Act 1999

The Review Panel:

1.      Revokes the certificate issued by Medical Assessor Neil Berry dated 13 March 2024.

2.      Certifies that the claimant sustained a soft tissue injury to the cervical spine with referred symptoms into the bilateral shoulder girdles, a soft tissue injury to the lumbar spine and upper digestive tract disease caused by the motor accident on 19 March 2013 that give rise to a whole person impairment which is not greater than 10%, that is, 10%.

A statement setting out the Review Panel’s reasons for the assessment is attached to this certificate.

STATEMENT OF REASONS

BACKGROUND

1. The claimant, Ms Marie Anne Moutrage, is a 33-year-old woman who was involved in a motor accident on 19 March 2013 at the age of 21 years. She was a passenger in a motor vehicle driven by her mother (vehicle 2) that slowed to make a right hand turn into the driveway of their home. Another vehicle was travelling behind them at the time (vehicle 1). The driver of vehicle 1 did not see vehicle 2 slow down and turn into a driveway and collided with vehicle 1 (the motor accident).

2. On 26 August 2013, Ms Moutrage lodged a Motor Accident Personal Injury Claim Form. The relevant compulsory third party insurer is Insurance Australia Limited t/as NRMA Insurance (the insurer).

3. Ms Moutrage claims that she suffered injuries to her neck, bilateral shoulders, mid back, lower back, pelvis and upper digestive tract as a result of the motor accident.

4. The claim is governed by the provisions of the Motor Accidents Compensation Act 1999 (MAC Act). This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of benefits and compensation by way of lump sum damages (under Chapter 5) for persons injured in motor accidents in New South Wales.

5. A medical dispute about the degree of Ms Moutrage’s whole person impairment (WPI) in respect of her claimed physical injuries has arisen in connection with her claim, namely, whether her WPI is greater than 10%. This constitutes a medical assessment matter under s 58(1)(d) of the MAC Act.

6. A medical assessment matter is determined in accordance with Chapter 3, Part 3.4 of the MAC Act.

7. The medical dispute was referred to the Personal Injury Commission (Commission) and the Commission assigned it to Medical Assessor Neil Berry for a further assessment of the degree of permanent impairment. A previous assessment of 7% WPI had been made by Medical Assessor Berry on 30 November 2022.

8. On 13 March 2024, Medical Assessor Berry determined that Ms Moutrage had suffered injuries to her cervical spine, bilateral shoulders, lumbar spine and stomach caused by the motor accident and assessed Ms Moutrage as having a WPI greater than 10%, namely, 18% (the Medical Assessment).

REVIEW PROCEDURE

1. The insurer sought a review of the further Medical Assessment in accordance with s 63 of the MAC Act (the Review).

2. On 27 May 2024, the President’s delegate determined that there was reasonable cause to suspect that the Medical Assessment was incorrect in a material respect and referred the matter to a Review Panel (the Panel).

3. Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision-maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.

4. The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission: s 63(3) of the MAC Act. Accordingly, the President’s delegate has convened this Panel to conduct the review of the Medical Assessment.

5. Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor: s 41(2) of the PIC Act.

6. 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. The Review is by way of a new assessment of all matters with which the medical assessment is concerned: s 63(3A) of the MAC Act.

7. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (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: Rule 128 of the PIC Rules.

8. On 28 May 2024, the Panel directed the parties to lodge with the Commission an indexed and paginated final bundle on which they relied in the Review.

9. On 15 July 2024, the Panel informed the parties that it considered a re-examination of Ms Moutrage was required. Arrangements were made for Ms Moutrage to be jointly
   re-examined by Medical Assessors Margaret Gibson and Christopher Oates at St Leonards on 4 October 2024.

LEGISLATIVE FRAMEWORK

General provisions

1. Section 3 of the MAC Act defines ‘injury’ to mean a personal or bodily injury and includes a pre-natal injury; a psychological or psychiatric injury; and damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses.

2. Ms Moutrage’s claim and entitlements to compensation are governed by the provisions of the MAC Act. An injured person can make a claim for both economic losses and non-economic loss damages.

3. However, s 131 of the MAC Act provides that no damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.

Permanent impairment assessment

1. Section 44(1)(c) of the MAC Act states Motor Accidents Medical Guidelines may be issued in respect of the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.

2. The current Motor Accident Permanent Impairment Guidelines are effective from 1 June 2018 (the Guidelines). The Guidelines were developed for the purpose of assessing the degree of permanent impairment arising from the injury caused by a motor accident, in accordance with s 133(2)(a) of the MAC Act: cl 1.1 of the Guidelines.

3. The Guidelines adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment Fourth Edition (AMA 4 Guides). The Guidelines are definitive in respect of the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed: cl 1.2 of the Guidelines. They apply under the MAC Act to the assessment of the degree of permanent impairment that has resulted from an injury caused by a motor accident occurring between 5 October 1999 and 30 November 2017 inclusive: cl 1.3 of the Guidelines.

4. Causation of injury is addressed in cls 1.5, 1.6 and 1.7 of the Guidelines.

5. Clause 1.6 of the Guidelines notes:

   “1.6   Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:

   ‘Causation means that a physical, chemical or biologic 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 contribute to worsening of the impairment, which is a non-medical determination.'

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

1. Clause 1.7 of the Guidelines states:

   “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. Sections 5D (duty of care – general principles) and 5E (onus of proof) of the Civil Liability Act 2002 (the CLA) apply to the MAC Act: s 3B(2) of the CLA.

3. Pre-existing impairment is addressed in cls 1.31, 1.32 and 1.33 of the Guidelines.

4. The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored: cl 1.31 of the Guidelines.

5. Pre-existing impairments should not be assessed if they are unrelated or not relevant to the impairment arising from the motor accident: cl 1.33 of the Guidelines.

6. Subsequent injury is addressed in cl 1.34 of the Guidelines which states:

   “The evaluation of permanent impairment may be complicated by the presence of an impairment in the same region that has occurred subsequent to the relevant motor accident. If there is objective evidence of a subsequent and unrelated injury or condition resulting in permanent impairment in the same region, its value should be calculated. The permanent impairment resulting from the relevant motor accident must be calculated. If there is no objective evidence of the subsequent impairment, its possible presence should be ignored.”

EVIDENCE BEFORE THE PANEL

1. The evidence before the Panel consisted of the following:

   (a)    the insurer’s indexed and paginated bundle of documents lodged on the Commission’s portal on 27 June 2024 (insurer’s documents);

   (b)    Ms Moutrage’s indexed and paginated bundle of documents lodged on the Commission’s portal on 3 July 2024 (claimant’s documents), and

   (c)    Dr Robin Mitchell’s report dated 11 December 2023 lodged on the Commission’s portal on 17 July 2024 (Dr Mitchell’s report).

ASSESSMENT UNDER REVIEW

1. Medical Assessor Berry examined Ms Moutrage on 26 February 2024 and issued a further certificate under s 61 of the MAC Act on 13 March 2024.[1]

   [1] Insurer’s documents at pages 14-24.

2. Medical Assessor Berry was asked to further assess the dispute between the parties about the degree of permanent impairment under s 58(1)(d) of the MAC Act in respect of the following claimed injuries:

   (a)    cervical spine – strain, exacerbation, causation;

   (b)    lumbar spine – L5-S1 annular tear and disc protrusion with mild thecal sac compression without root impingement;

   (c)    left shoulder – shoulder injury;

   (d)    right shoulder – shoulder injury;

   (e)    stomach – upper gastrointestinal tract, strain, exacerbation, causation, and

   (f)    pelvic fracture.

1. Medical Assessor Berry noted that, prior to the motor accident, Ms Moutrage had not sustained any prior injuries or undergone any specific treatment for a serious condition.

2. Medical Assessor Berry took a history of the motor accident and noted that, on 19 March 2013, Ms Moutrage was a front seat passenger in a Camry sedan driven by her mother. She had been picked up from work and they were heading home. They were in their street when their vehicle was T-boned on the driver’s side. Ms Moutrage was shaken and dazed. She was aware of pain in the neck and out across the shoulders. As she was making her way home, she developed back pain.

3. In respect of Ms Moutrage’s symptoms and treatment following the motor accident, Medical Assessor Berry took a history that she attended on Dr John Williams, general practitioner, two days after the accident and was treated conservatively. Pain persisted and she was referred to Dr Matthew Giblin, orthopaedic surgeon, who provided conservative treatment with no long term benefit. Subsequently, she was referred to Dr Renata Bazina, neurosurgeon, who referred her for a bone scan.

4. Ms Moutrage advised Medical Assessor Berry that, since the motor accident, she had undergone a sleeve gastrectomy performed by Dr Ertugal Durmush, general surgeon, as her weight went from 90kg to 149kg. The procedure initially helped her lose 79kg but she had regained some of the weight and now weighed 125kg.

5. In respect of her current symptoms, Ms Moutrage advised Medical Assessor Berry that she had noticed an increase in the pain and stiffness in her cervical spine extending out over her shoulders. Back pain and stomach symptoms had remained the same as described in the first medical assessment by Medical Assessor Berry. Ms Moutrage confirmed that she still experienced reflux and nausea from time to time.

6. In respect of her current and future treatment, Ms Moutrage advised Medical Assessor Berry that she was taking various medications and was not receiving any other form of treatment. She was not aware of any proposed future treatment.

7. On examination of Ms Moutrage’s cervicothoracic spine, Medical Assessor Berry observed midline tenderness; one third the normal range on right rotation and left lateral flexion; half the normal range on right rotation and right lateral flexion; virtually full range on flexion; half the normal range on extension; no muscle spasm; and no alteration of spinal contour.

8. On examination of Ms Moutrage’s thoracolumbar spine, Medical Assessor Berry observed no tenderness on palpation; no muscle spasm; no alteration of a normal kyphosis; and no evidence of dysmetria.

9. On examination of Ms Moutrage’s lumbosacral spine, Medical Assessor Berry observed lower midline and left iliac crest tenderness; half the normal range of flexion; virtually no extension; one third of the normal range of rotation; flattening of the lumbar lordosis; and no paraspinal muscle spasm.

10. On examination of Ms Moutrage’s upper extremities, Medical Assessor Berry observed bilateral shoulder restrictions, the active ranges of movement (ROM) of which were measured by goniometer as follows:

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	140°	140°
Extension	50°	50°
Adduction	40°	40°
Abduction	140°	140°
Internal Rotation	80°	80°
External Rotation	60°	60°

1. On examination of Ms Moutrage’s lower extremities, measured by goniometer, Medical Assessor Berry observed normal reflexes; 20° of straight leg raise on the right; 10° of straight leg raise on the left; no evidence of a nerve root tension sign; no dermatomal sensory changes; and no evidence of unilateral muscle wasting.

2. On examination of Ms Moutrage’s abdomen, Medical Assessor Berry observed tenderness in the epigastrium; scars consistent with laparoscopic sleeve gastrectomy; protuberance; diffuse tenderness; no guarding, rigidity or rebound; no palpable masses; and normal auscultation.

3. In respect of consistency, Medical Assessor Berry noted that Ms Moutrage was very tearful throughout the assessment but was cooperative at all times. He opined that there was no evidence of illness behaviour or exaggeration.

4. Medical Assessor Berry provided the following diagnosis and reasons:

   “Ms Moutrage has a history of being involved in a motor vehicle accident and as a result of this suffered neck and back pain. Examination today shows that she has deteriorated in that her neck pain is more severe. There is now dysmetria on examination and there is a restricted range of movement in both shoulders which would be attributed to the Nguyen process.”[2]

   [2] Insurer’s documents at page 20 at [24].

5. In respect of causation, Medical Assessor Berry opined as follows:

   “Ms Moutrage was involved in a motor accident and her injury to the neck and back are consistent with soft tissue injuries with Nguyen referral to both shoulders. Her medication intake is consistent with inflammatory changes in the gastric remnant after her sleeve gastrectomy in 2014.”[3]

   [3] Insurer’s documents at page 20 at [25].

6. Medical Assessor Berry concluded that the motor accident caused a soft tissue injury to the cervical spine; a soft tissue injury to the lumbar spine; injuries to the bilateral shoulders in accordance with the principle espoused in Nguyen v The Motor Accidents Authority of NSW and Zurich Australian Insurance Ltd (Nguyen);[4] and gastritis.

   [4] Nguyen v The Motor Accidents Authority of NSW and Zurich Australian Insurance Ltd [2011] NSWSC 351.

7. Medical Assessor Berry concluded that the motor accident did not cause a pelvic fracture as there was no evidence of the same.

8. Medical Assessor Berry assessed Ms Moutrage’s WPI at 18%, calculated as follows:

Body Part or System	AMA 4 Guides/ Guidelines References (chapter/ page/table)	Permanent (Yes/No)	Current %WPI	%WPI from pre-existing or subsequent causes	%WPI due to motor accident
1.	Cervical spine	AMA 4 Guides Chapter 3 Page 103 - 105 DRE Category II	Yes	5%	0%	5%
2.	Right shoulder	AMA 4 Guides Chapter 3 Pages 43  45 Figures 38 - 41	Yes	3%	0%	3%
3.	Left shoulder	AMA 4 Guides Chapter 3 Pages 43  45 Figures 38 - 41	Yes	3%	0%	3%
4.	Lumbar spine	AMA 4 Guides Chapter 3 Pages 101 - 103 DRE Category II	Yes	5%	0%	5%
AMA 4 Guides
5.	Upper Gastrointestinal Tract	Chapter 10 Page 239 Table 2	Yes	2%	0%	2%
Class 1

1. Medical Assessor Berry opined that there were no pre-existing or subsequent impairments and that, therefore, no apportionment was required.

REVIEW OF THE EVIDENCE

NSW Police report

1. In evidence, there was a police report in respect of the motor accident provided to the insurer under cover of a letter from NSW Police dated 24 April 2013.[5]

   [5] Insurer’s documents at pages 43-19.

2. The police report set out the basic particulars of the motor accident. The report noted that vehicle 2 (the vehicle in which Ms Moutrage was a passenger) was parked in the driveway of a property and that the damage to that vehicle was to the right driver’s door.

3. The report went on to state:

   “Police have spoken with driver 2 who could not confirm with police as to what has actually occurred. Police were then approached by driver 1 (the driver of the at-fault vehicle) who informed police he was travelling behind vehicle 2 but due to the sunset, driver 1 has not seen the vehicle up ahead slow down and turn into their driveway and has then collided with vehicle 2.

   Following- the collision both drivers exchanged details, no vehicles towed, nil driver under the influence and nil injuries.”[6]

   [6] Insurer’s documents at page 46.

1. In the report, the incident type was described as a minor traffic collision.

Motor accident personal injury claim form

1. On 26 August 2013, Ms Moutrage completed a motor accident personal injury claim form in respect of the motor accident (the claim form).[7]

   [7] Insurer’s documents at pages 31-41.

2. The claim form set out the basic particulars of the motor accident and Ms Moutrage provided the following description of the motor accident:

   “I was a passenger in a car driven by my mother. It turned right and was entering the driveway of our home when the car following us veered onto the wrong side of the street and collided with the driver’s side of the vehicle which was still in the street. The other vehicle was travelling into the sun.”[8]

   [8] Insurer’s documents at page 33.

3. In the claim form, Ms Moutrage described her injuries as a result of the motor accident as follows:

   “Neck, left shoulder, mid back, low back, shock, chest pain, producing temporary (illegible) over all of body.”[9]

   [9] Insurer's documents at page 37.

4. The Panel noted that Ms Moutrage did not record injuries to her right shoulder or pelvis in the claim form.

5. In the claim form, Ms Moutrage stated that, at that point in time, her injuries were causing her severe neck pain, headaches, mid and lower back pain, left shoulder pain and chest pain. She also stated that she was tense and worried.

6. In the claim form, Ms Moutrage denied having had any other injuries, disability or illness to the same parts of her body before or since the motor accident.

Treating medical records and reports

1. On 5 April 2013, Ms Moutrage consulted Dr John Williams, general practitioner, complaining of anterior chest wall soreness, soreness in the left side of the neck and base of the cervical spine into the trapezius muscles following the motor accident. Dr Williams’ handwritten clinical records in respect of Ms Moutrage were in evidence.[10] The handwritten clinical records were difficult to read. Dr Williams recorded that Ms Moutrage was involved in a motor vehicle accident on 19 March 2013 as a front seat passenger and that, whilst the vehicle was turning into a driveway, it was hit on the right side by another vehicle. He noted that she was sore when she rotated her neck to the left side. He noted that she was overweight, weighing 140kg and being 165cm in height. On examination, Dr Williams observed cervical tenderness over the base of the cervical muscles, trapezius muscles and upper thoracic spine. He diagnosed a whiplash associated disorder type I and a lower thoracic spine strain. He noted that, after 29 March 2013, Ms Moutrage returned to normal duties at work.[11]

   [10] Insurer’s documents at pages 172-256.

   [11] Insurer's documents at page 179.

2. On 5 April 2013, Dr Williams issued Ms Moutrage with a pro forma motor accident medical certificate.[12] Dr Williams provided a diagnosis of acute whiplash disorder type I and lower thoracic muscle strain. In the medical certificate, he repeated the clinical findings on examination referred to in the entry in his clinical records dated 5 April 2013. He noted a referral to Ms Tadrous, physiotherapist. He disclosed obesity as being a co-morbidity.

   [12] Insurer's documents at page 174.

3. It appears that Ms Moutrage’s consultation on 5 April 2013 was her first with Dr Williams.

4. Ms Moutrage had also been consulting Dr Lourice Ghaly, general practitioner, from 23 February 2011. Dr Ghaly’s handwritten clinical records in respect of Ms Moutrage were in evidence.[13] The handwritten clinical records were difficult to read. The entry in the clinical records dated 22 April 2013 noted neck and body pain.[14]

   [13] Insurer's documents at pages 166-171.

   [14] Insurer's documents at page 167.

5. Ms Moutrage had also been consulting Dr Nasser Sidrak, general practitioner, of Moore Street Family Medical Centre since 22 January 1999. Dr Sidrak’s handwritten and electronic clinical records in respect of Ms Moutrage were in evidence.[15] The handwritten clinical records were difficult to read.

   [15] Insurer's documents at pages 277-287.

6. Ms Moutrage had also been consulting general practitioners at the Busby First Care Medical Centre since 1 July 2011. The medical centre’s clinical records in respect of Ms Moutrage were in evidence.[16] There was an entry in the clinical records dated 25 March 2017 referring to the motor accident and noting that Ms Moutrage wanted an MRI scan for her whole back.

   [16] Insurer's documents at pages 288-301.

7. There were no entries in the general practitioner clinical records referred to above recording complaints by Ms Moutrage of symptoms in her cervical spine, bilateral shoulders, thoracic spine or lumbar spine pre-dating the motor accident. However, Ms Moutrage had experienced pre-accident gastrointestinal symptoms (vomiting and tenderness in the epigastrium) which were recorded by Dr Sidrak in the Moore Street Family Medical Centre clinical records on 5 September 2012 and 26 October 2012. On 26 October 2012, Dr Sidrak referred her to Royal Prince Alfred Hospital for a lap band operation.[17] There is no evidence that Ms Moutrage underwent such an operation.

   [17] Insurer's documents at pages 278-279.

8. The entry in Dr Williams’ clinical records dated 7 February 2014 referred to Ms Moutrage complaining of cervical and bilateral trapezius pain and pain in the thoracic/lumbar area. There was also a reference to both hands and a reference to Ms Moutrage’s weight being 140kg. Dr Williams referred Ms Moutrage to Dr John Jorgensen to discuss weight reduction surgery.[18]

   [18] Insurer's documents at page 175.

9. On 21 February 2014, Dr Jorgensen, consultant surgeon, reported to Dr Williams that Ms Moutrage had presented for discussion regarding weight loss surgery. He described Ms Moutrage as being “super obese with a BMI of 54, weighing 145kg or an excess weight of 80kg.”[19] Dr Jorgensen took a history that Ms Moutrage had put on weight since she was a teenager because of the emotional stress of losing her father and then having her mother involved in a series of accidents that resulted in her having a significant issue with emotional eating. Dr Jorgensen recommended consultation with a psychologist before weight loss surgery. He opined that sustained weight loss would definitely be in her interests in terms of her health and general quality of life.

   [19] Insurer's documents at page 64.

10. On 28 March 2014, Dr Durmush provided a report to Dr Ghaly.[20] Dr Durmush noted that Ms Moutrage had struggled with her weight for many years; had a sweet tooth; had a family history of obesity; did not undertake regular exercise; and suffered from joint problems. He observed that, on examination, she weighed 149kg with a body mass index (BMI) of 54. Height was 166cm; neck measured 42cm; waist measured 130cm; and hips measured 152cm. Otherwise, clinical examination was unremarkable. They discussed various options of weight loss surgery. Dr Durmush referred Ms Moutrage for comprehensive blood testing and an abdominal CT scan. He placed her on a low calorie diet. A review was scheduled for June 2014.

    [20] Insurer's documents at page 170.

11. The entry in Dr Williams’ clinical records dated 24 June 2014 recorded Ms Moutrage’s weight as being 148kg with a BMI of 54.36 and her height as being 165cm. Dr Williams noted that she was seeing Dr Durmush for bariatric surgery. He also noted joint pain and sleep apnoea.[21]

    [21] Insurer's documents at pages 180-181.

12. On 17 October 2014, Ms Moutrage underwent a laparoscopic sleeve gastrectomy by Dr Durmush.[22]

    [22] Insurer's documents at page 171.

13. On 6 September 2015, Ms Moutrage consulted Dr Bibha Chakma, general practitioner, of Busby First Care Medical Centre complaining that she had hurt her back at the gym and perhaps pulled a muscle. She denied any radiating pain. Her fiancé was providing back massage. She requested the doctor to issue her with a medical certificate for the day.[23] The Panel concluded that the injury was of a minor nature. There was no further reference to the incident in any of her treating general practitioner records.

    [23] Insurer's documents at page 292.

14. The entry in Dr Williams’ clinical records dated 22 January 2016 referred to Ms Moutrage complaining of thoracolumbar pain to the left side and cervical spine pain that had persisted since the motor accident. She also reported left hip pain. He referred her for a thoracolumbar MRI scan.[24]

    [24] Insurer's documents at page 183.

15. On 29 January 2016, Ms Moutrage underwent an MRI scan of her whole spine by Dr Adrian Gale, radiologist. The stated reason was back pain. Dr Gale observed that the vertebrae were intact. At the C6/7 level, there was minimal posterior bulging of the disc annulus without neural compromise. The remaining cervical, thoracic and lumbar discs were intact. Neural structures were normal in appearance. The cord was of normal signal intensity and dimension. The cerebellar tonsils and conus medullaris were in normal position and there was no evidence of canal stenosis.[25]

    [25] Insurer's documents at page 144.

16. The entry in Dr Williams’ clinical records dated 20 February 2016 referred to the outcome of the MRI scan of the whole spine performed by Dr Gale on 9 January 2016. Dr Williams noted that Ms Moutrage was still experiencing cervical spine and thoracolumbar spine pain. He also noted complaints of epigastric pain and upper abdominal pain.[26] He referred her to Mr Brendan Cribtree, physiotherapist[27] and to Dr Matthew Giblin.

    [26] Insurer's documents at page 183.

    [27] Claimant's documents at page 95.

17. In Dr Williams’ referral letter to Dr Giblin dated 20 February 2016, he noted that Ms Moutrage had been involved in the motor accident and had undergone a spinal MRI scan that demonstrated a minor C5/6 disc bulge. She had persisting thoracic spine and lumbar spine pain and upper abdominal pains due to medication.[28]

    [28] Insurer's documents at page 143.

18. The entry in Dr Williams’ clinical records dated 2 March 2016 noted that Ms Moutrage was attending physiotherapy twice per week for her cervical spine and lumbar spine pain.[29]

    [29] Insurer's documents at page 183.

19. On 14 March 2016, Dr Giblin reported to Dr Williams.[30] Dr Giblin noted that Ms Moutrage was a seat-belted front seat passenger with a headrest at the time of the motor accident. He took a history that, since the motor accident, Ms Moutrage had experienced neck pain with radiation into both shoulders and low back pain. There was no radiation into the lower limbs and no associated paraesthesia. She really had not undergone any treatment because she had tried to continue at work. During the consultation, she broke down in tears due to her pain. She had only recently commenced physiotherapy and was taking medication.

    [30] Claimant's documents at pages 87-88.

20. On examination of Ms Moutrage’s cervical spine on 14 March 2016, Dr Giblin observed that she was able to put her chin on her chest; she could extend it just passed neutral; left and right lateral rotation were reduced; there were no significant peripheral neurological signs; and she had a full range of movement of the shoulders, but pain at the extremes on the left.

21. On examination of Ms Moutrage’s lumbar spine on 14 March 2016, Dr Giblin observed that she could forward flex only to the upper thighs; straight leg raising was 90° bilaterally; and there were no significant peripheral neurological signs.

22. Dr Giblin noted that a whole of spine MRI scan had demonstrated a minor disc bulge at C6/7 and that the lumbar spine was normal. He requested a bone scan to ascertain whether there was a problem with the facet joints that might have been missed.

23. On 18 March 2016, Ms Moutrage underwent a whole body scan with SPECT CT of the cervical spine and the lumbar spine by Dr Ian Brittain, radiologist.[31] Dr Brittain concluded that there was no abnormal tracer uptake in the cervical spine or the lumbar spine; there were mild discovertebral changes at T9/10; and the increased tracer activity in the right sacroiliac joint could be due to arthritis or stress injury.

    [31] Claimant's documents at page 97.

24. On 21 March 2016, Dr Giblin reported to Dr Williams on the outcome of the bone scan dated 18 March 2016. He noted that Ms Moutrage complained of a lot of pelvic pain and so, he suggested that she try a right-sided sacroiliac joint injection.[32]

    [32] Insurer's documents at page 135.

25. The entry in Dr Williams’ clinical records dated 23 March 2016 noted that Ms Moutrage had undergone the SPECT CT scan and was attending physiotherapy. He referred her for a cortisone injection into the right hip area.[33]

    [33] Insurer's documents at page 184.

26. On 8 April 2016, Ms Moutrage underwent a gastroscopy by Dr Alexander Simring, gastroenterologist and hepatologist, on the referral of Dr Williams. Dr Simring opined that there was severe erosive linear gastritis likely related to non-steroidal anti-inflammatory drugs (NSAIDs). There was no evidence of peptic ulcer disease. He took biopsies.[34]

    [34] Claimant's documents at page 100.

27. The entry in Dr Williams’ clinical records dated 4 March 2017 noted that Ms Moutrage had been struggling since the motor accident. She had undergone a cortisone injection into the lower back. She still had lumbar and neck pain. She used Nurofen Plus and felt muscle cramps in her leg. He noted chronic pain disorder. She was still attending physiotherapy.[35]

    [35] Insurer's documents at page 184.

28. On 25 March 2017, Ms Moutrage consulted Dr Chakma requesting an MRI scan for her whole back, stating that she had been in a motor accident in 2013 and was seeing another doctor for that. She had taken Nurofen and she believed that caused her stomach pain. She complained of always having a headache. Dr Chakma advised her to return to the doctor who was treating her.[36]

    [36] Insurer's documents at pages 297-298.

29. The entry in Dr Williams’ clinical records dated 1 April 2017 noted that Ms Moutrage had been feeling stressed. She was suffering from lower lumbar right-sided pain, bilateral hip pain and persisting headaches. Dr Williams referred her for MRI scans of her cervical spine and lumbar spine.[37]

    [37] Insurer's documents at page 185.

30. On 8 April 2017, Ms Moutrage underwent MRI scans of her cervical spine and lumbar spine by Dr Niranjan Ganeshan, radiologist, on the referral of Dr Williams.[38] Dr Ganeshan concluded that the MRI scan of the cervical spine was normal. In respect of the lumbar spine, there was a minimal posterocentral focal disc protrusion without neural impingement at L5/S1. There were no other disc lesions and there was no facet joint arthropathy.

    [38] Claimant's documents at pages 98-99.

31. On 5 May 2017, Ms Moutrage consulted Dr Renata Bazina, neurosurgeon, on the referral of Dr Williams. Dr Bazina provided Dr Williams and Dr Giblin with a report dated 9 May 2017.[39] Dr Bazina noted that Ms Moutrage had been injured in the motor accident in 2013 and had persistent cervical and lumbar pain thereafter. She noted that Ms Moutrage had undergone gastric sleeve surgery and lost in excess of 50kg since the motor accident. However, despite this, she continued to have significant mechanical back pain, experienced occasional headaches and neck symptoms that have become less intense. At this consultation, Dr Bazina stated that she focused on Ms Moutrage’s lower back.

    [39] Insurer's documents at pages 360-361.

32. In her report, Dr Bazina stated:

    “Recent MRI scan shows a very tiny high intensity zone in the foraminal part of the L4/5 annulus on the right. Other than that, everything looked quite normal. Working diagnosis of discogenic back pain is reasonable with a secondary lumbar facet joint syndrome. This lady is becoming increasingly depressed as the years have gone one [sic: on], she is finding it difficult keeping full time employment. She is currently working in retail, managing a jewellery store but feels increasingly inadequate as she requires regular assistance from other staff. Ms Moutrage is not very active, she could afford to increase her general activity levels but I appreciate that this is an unforgiving cycle of pain that she is in at this point in time.”[40]

    [40] Insurer's documents at page 360.

33. Dr Bazina reviewed Ms Moutrage’s medications, noting that she was currently taking Lyrica 25mg once daily, Cymbalta 30mg once daily, Nurofen Plus sparingly and regular paracetamol. Dr Bazina suggested increasing Cymbalta to 60mg to address mood and add Endep to improve sleep. She suggested a further diagnostic block at the L4 perineural. Other non-surgical treatment and pain management were also discussed.

34. The entry in Dr Williams’ clinical records dated 27 May 2017 noted that Ms Moutrage had consulted Dr Bazina, who recommended a cortisone injection at L5/S1.[41]

    [41] Insurer's documents at page 185.

35. The entry in Dr Williams’ clinical records dated 24 June 2017 noted that Ms Moutrage had ongoing lumbar pain and headaches.[42]

    [42] Insurer's documents at page 186.

36. The entry in Dr Williams’ clinical records dated 29 July 2017 noted that Ms Moutrage’s pain was settling with Tramal 50mg tablets.[43]

    [43] Insurer's documents at page 186.

37. The entry in Dr Williams’ clinical records dated 1 September 2017 noted that Ms Moutrage had chronic headaches and lumbar pain. She was taking Nurofen Plus and Tramal 50mg tablets.[44]

    [44] Insurer's documents at page 186.

38. The entry in Dr Williams’ clinical records dated 7 October 2017 noted that Ms Moutrage had lumbar pain and was taking Nurofen Plus and Tramal 50mg tablets.[45]

    [45] Insurer's documents at page 186.

39. The entry in Dr Williams’ clinical records dated 4 November 2017 noted that Ms Moutrage had lumbar pain and was taking Nurofen Plus and Tramal 50mg tablets.[46]

    [46] Insurer's documents at page 186.

40. The entry in Dr Williams’ clinical records dated 9 December 2017 noted that Ms Moutrage had lumbar pain and had gained weight.[47]

    [47] Insurer's documents at page 186.

41. The entry in Dr Williams’ clinical records dated 23 March 2018 noted that Ms Moutrage was stable on Nurofen Plus and Tramal 50mg tablets.[48]

    [48] Insurer's documents at page 186.

42. The entries in Dr Williams’ clinical records dated 11 April 2018, 10 May 2018, 22 June 2018 and 13 August 2018 were all telephone consultations requesting the prescription of analgesia and Tramal 50mg tablets.[49]

    [49] Insurer's documents at pages 186-187.

43. The entry in Dr Williams’ clinical records dated 17 January 2019 noted that Ms Moutrage complained of ongoing lumbar pain. Dr Williams prescribed Nurofen Plus and Tramal 50mg tablets.[50]

    [50] Insurer's documents at page 187.

44. The entry in Dr Williams’ clinical records dated 1 February 2019 noted that Ms Moutrage complained of lumbar pain. Dr Williams referred her to Dr Giblin.[51]

    [51] Insurer's documents at page 187.

45. The entry in Dr Williams’ clinical records dated 8 April 2019 noted that Ms Moutrage was to cease taking Nurofen Plus due to gastrointestinal pain and was to continue taking Tramal 50mg tablets.[52]

    [52] Insurer's documents at page 187.

46. The entries in Dr Williams’ clinical records dated 13 May 2019, 2 June 2019, 31 August 2019 and 6 March 2020 were all consultations requesting the prescription of analgesia and Tramal 50mg tablets.[53]

    [53] Insurer's documents at page 187.

47. On 20 September 2019, Ms Moutrage consulted Dr Bazina on the referral of Dr Williams. Dr Bazina provided Dr Williams with a report dated 23 September 2019.[54] Dr Bazina reported that Ms Moutrage continued to suffer cervical and lumbar pain following the motor accident. She confirmed that her overall impression was one of minimal problems with the lumbar disc or the cervical disc and that most of the pain was musculoskeletal. Whilst Dr Bazina felt that radiofrequency treatment of the lumbar facet joints was an option, an exercise program and a holistic approach to pain management would be beneficial. She opined that the likelihood of a deterioration of the musculoskeletal pain was minimal. Dr Bazina suggested a trial of Norgesic and referral to an exercise physiologist. She recommended a bone scan to exclude any inflammatory changes in the joints that could benefit from steroid injections.

    [54] Insurer's documents at page 362.

1. The entry in Dr Williams’ clinical records dated 30 July 2020 noted that Ms Moutrage had gained weight and still had cervical spine and lumbar spine pain. She was referred to Activ Therapy at Liverpool.[55]

   [55] Insurer's documents at page 188.

2. On 24 August 2020, Ms Moutrage underwent a bone scan by Dr Rahul Patel, radiologist, on the referral of Dr Bazina. Dr Patel found increased vascularity in the region of the sacroiliac joints associated with a mild bony reaction in the same region. There were sclerotic abnormalities that could reflect an old pelvic fracture. Nevertheless, due to the increased vascularity and increased tracer uptake in the sacroiliac joints, sacroiliitis should also be considered in the differential diagnosis. There was no scan evidence of significantly active discovertebral arthritis or facet joint arthritis in the lumbar spine. There was no focal abnormal bony reaction in the hips.[56]

   [56] Insurer's documents at page 368.

3. The entry in Dr Williams’ clinical records dated 4 March 2021 noted that Ms Moutrage still had lower back pain. She also complained of abdominal pain and feeling tired. Dr Williams noted low iron.[57]

   [57] Insurer's documents at page 188.

4. The entry in Dr Williams’ clinical records dated 19 March 2021 noted that Ms Moutrage had an iron deficiency and he placed her on iron tablets.[58]

   [58] Insurer's documents at page 188.

5. The entry in Dr Williams’ clinical records dated 9 April 2021 referred to a bone scan dated 24 August 2020. Dr Williams referred Ms Moutrage back to Dr Bazina.[59]

   [59] Insurer's documents at page 189.

6. The entry in Dr Williams’ clinical records dated 26 April 2021 noted that Ms Moutrage had started physiotherapy and that she was feeling lumbar pains. There was reference to four Naprosyn 500mg tablets daily.[60]

   [60] Insurer's documents at page 189.

7. On 10 June 2021, Ms Moutrage consulted Dr Bazina on the referral of Dr Williams. Dr Bazina provided Dr Williams with a report dated 11 June 2021.[61] She noted that the bone scan she had recommended at Ms Moutrage’s last consultation in 2019 had finally been done. In respect of the bone scan, Dr Bazina observed as follows:

   “The bone scan results suggest she has sacroiliitis and there was a suggestion of a [sic] old pelvic fracture which could relate to the motor vehicle accident in 2013 as there is no other history to suggest trauma in this lady's background. My usual treatment for sacroiliitis is a diagnostic block, if positive then proceed to radiofrequency treatment, otherwise there is no cure for this.”[62]

   [61] Insurer's documents at page 363.

   [62] Insurer's documents at page 363.

8. Dr Bazina noted that Tramadol seemed to provide Ms Moutrage with the best relief but that she needed to use this medication sparingly.

9. The entry in Dr Williams’ clinical records dated 27 September 2021 noted that Ms Moutrage had consulted Dr Bazina, who noted sacroiliitis on a bone scan.[63]

   [63] Insurer's documents at page 190.

10. On 1 November 2021, Ms Moutrage underwent a right sacroiliac joint cortisone injection under CT guidance by Dr Shady Osman on the referral of Dr Bazina.[64]

    [64] Insurer's documents at page 366.

11. The entries in Dr Williams’ clinical records dated 13 January 2022, 1 February 2022, 14 February 2022, 16 February 2022 and 10 May 2022, in the main, dealt with complaints of iron deficiency, abdominal issues and psychological issues.[65]

    [65] Insurer's documents at page 190.

12. On 16 February 2022, Ms Moutrage consulted Dr Bazina. Dr Bazina provided Dr Williams with a report dated 18 February 2022 wherein she stated, amongst other things:

    “Patient was in a fair amount of discomfort today and emotional. She was deployed by her employer to the warehouse to support online sales during the lockdown. This resulted in multiple episodes of reaggravation of her back pain as she was constantly bending, lifting and carrying orders. She was unable to negotiate alternative duties and now requires more intensive pain management. I recommended she proceed with Right [sic] sacroiliac joint radiofrequency treatment. Referral made to the public hospital.”[66]

    [66] Insurer's documents at page 364.

13. On 22 April 2021, Mr Mihajlo Danilovic, chiropractor, of Activ Therapy issued what he referred to as a medical certificate in respect of Ms Moutrage.[67] Mr Danilovic stated that Ms Moutrage had attended his clinic regularly since January 2016 for issues with her neck, mid back and lower back following a motor accident. He further stated as follows:

    “Initial cervical injury treated was whiplash and discogenic neck pain. Initial thoracic injury treated was whiplash and initial lumbar injury treated was post traumatic mechanical low back pain and discogenic low back pain.

    Physical exams, history an [sic: and] scans at the time supported these diagnoses. Recently a bone study scan has confirmed that there appears to be evidence of an old pelvic fracture that was most likely sustained during the car accident. This would also explain the ongoing lower back issues and at times worsening symptoms.

    Over this time, Miss Moutrage has been seeing different therapists - physiotherapists, chiropractors and exercises physiologists.”[68]

    [67] Insurer's documents at page 262.

    [68] Insurer's documents at page 262.

14. The entry in Dr Williams’ clinical records dated 27 April 2022 noted that Ms Moutrage had consulted Dr Bazina; was taking Tramal; and was referred for physiotherapy/hydrotherapy.[69]

    [69] Insurer's documents at page 190.

15. The last entry in Dr Williams’ clinical records was dated 10 May 2022.

16. On 6 June 2022, Ms Moutrage underwent a CT scan of the lumbar spine and pelvis by Dr Ganeshan on the referral of Dr Williams. Dr Ganeshan found mild discovertebral changes as well as degenerative arthropathy in the right sacroiliac joint; an L5/S1 annulus tear and disc protrusion with mild thecal sac compression without nerve root impingement; and no other acute osseous injury.[70]

    [70] Insurer's documents at page 367.

17. On 21 September 2022, Dr Bazina wrote to the insurer and made the following request:

    “I would be grateful if you would be able to support treatment which I believe is reasonable and necessary for the above patient which includes Pain Management as per Dr Eugene Gehr's report of October 2018 your independent medical expert who recommended the patient be reviewed at a Pain Clinic and or be provided with pain management. The patient is increasingly depressed, anxious, has chronic L5/S1 disc herniation and is requiring multi-disciplinary pain management. She requires physiotherapy for a period of 3 months in addition to psychological support that does not add to additional burden to the public health system. I would [sic: be] grateful if you would be able to provide private access for this patient under her third party claim.”[71]

Medico-legal reports

[71] Insurer's documents at page 365.

Dr Thomas Kossmann: 12 July 2017

1. On 12 July 2017, Ms Moutrage consulted Dr Thomas Kossmann, orthopaedic surgeon, at the request of her lawyers. Dr Kossmann provided a report dated 12 July 2017.[72]

   [72] Claimant's documents at pages 58-75.

2. After having taken a history from Ms Moutrage and conducted a physical examination, Dr Kossmann provided the following analysis:

   “Ms Moutrage was involved in a transport accident on 19 March 2013 as a passenger. Ms Moutrage was concerned about the welfare of her mother, who was seriously injured in this accident and therefore did not attend a hospital or GP immediately after the accident. She treated her pain issues in her cervical and lumbar spine, left shoulder and chest by herself with Nurofen. She then went to a GP, Dr John Williams, on 22 April 2013.

   She continued to treat herself, however her pain issues became more severe and she underwent further investigations with an MRI of her cervical and lumbar spine, which showed that she was suffering from cervical and lumbar spondylosis. She received a cortisone injection into her back. She also underwent physiotherapy and chiropractic treatment. She has a referral for another injection into her back, however she has not yet decided if she wants to undergo this injection.

   Ms Moutrage was working in retail. At the time of the accident she was working at Woolworths, however the work relationship soured and she stopped working there. She then went to work for Pandora for three months. She changed jobs again and worked for a homewares store, however she only remained there for three months due to her ongoing pain issues. Ms Moutrage is now working full time as an Assistant Manager at Swarovski. Ms Moutrage underwent a gastric sleeve operation on 17 October 2014, as she was weighing up to 149kg. She now weighs 95kg. Ms Moutrage told me that after the accident she suffered from anxiety and depression.”[73]

   [73] Claimant's documents at pages 62-63.

3. Dr Kossmann diagnosed Ms Moutrage with cervical spondylosis on the background of a minimal posterior disc bulging at the C6/C7 level and lumbar spondylosis on the background of a posterior lateral focal disc protrusion at the L5/S1 level. He opined that there was a direct relationship between the motor accident and Ms Moutrage’s injuries to the cervical spine and lumbar spine and her present condition.

4. In respect of the cervical spine, Dr Kossmann assessed Ms Moutrage as diagnosis-related estimate (DRE) Cervicothoracic Category II, attracting a 5% WPI.

5. In respect of the lumbar spine, Dr Kossmann assessed Ms Moutrage as DRE Lumbosacral Category II, attracting a 5% WPI.

6. Accordingly, Dr Kossmann assessed the combined WPI at 10%.

Dr Anthony Greenberg: 26 July 2017

1. On 25 July 2017, Ms Moutrage consulted Dr Anthony Greenberg, general and gastrointestinal surgeon, at the request of her lawyers. Dr Greenberg provided a report dated 26 July 2017.[74]

   [74] Claimant's documents at pages 76-86.

2. Dr Greenberg noted Ms Moutrage’s current medications as Cymbalta 60mg per day; Lyrica 20mg tablets twice per day; Nurofen Plus two tablets per day (up to seven tablets on a bad day); and Nexium 20mg tablets twice per day. Ms Moutrage had recently ceased taking Endep.

3. Dr Greenberg noted that Ms Moutrage underwent bariatric surgery (gastric sleeve) on 17 October 2014 by Dr Durmush. Prior to the surgery she weighed 149kg and now weighed 95kg, having lost 54kg.

4. Dr Greenberg took the following clinical history in respect of Ms Moutrage’s upper gastrointestinal tract:

   “Ms Moutrage said she had pain in the upper abdomen. She pointed to the epigastric region. She described the pain as sharp and uncomfortable. She had an ‘acid-like feeling’ coming up behind her chest (retrosternal) into her anterior neck and into her mouth (oropharynx). It alters her taste and she described it as having a ‘chemical-like metallic taste’. She does not have any difficulty swallowing (dysphagia). ‘I am nauseous most days and throw up on average twice a week. I now seem to belch a lot. I noticed that I have developed a bad breath which makes me very anxious when I am close to other people. I always carry around a toothbrush, brush my teeth after eating and keep my oral hygiene’.

   Ms Moutrage continued; ‘the reflux wakes me during night. When I am asleep, the reflux is so intense that it wakes me up. It feels like food is coming up into my mouth and it has a metallic chemical-like taste.’

   Ms Moutrage said that over the week the reflux might occur four times a week. On average, she would be woken once during the night. ‘When I get the reflux I need to sit up, get out of bed. I am often awake for an hour or so and then I try to go back to sleep’.

   Ms Moutrage said that she finds this all very fatiguing. She tries to go back to sleep using two to three pillows and avoids lying flat as that tends to make the reflux worse.

   She said she is tired; feels quite anxious and finds it difficult to concentrate at work. ‘I work at Swarovski Jewellery and it makes my job very stressful.’

   Ms Moutrage’s diet has changed. She had to adjust to a new diet after her gastric sleeve and was doing quite well eating a variety of homogenised and healthy food; but she has had to change her diet again now as her current symptoms are very uncomfortable.

   I asked her to rate her symptoms out of 0-10 where 0 is normal and 10 is the most severe. Ms Moutrage said that on an average her symptoms were 7/10, but on a bad day they might go as bad as 9/10.”[75]

   [75] Claimant's documents at pages 77-78.

5. Dr Greenberg took the following clinical history in respect of Ms Moutrage’s lower gastrointestinal tract:

   “Generally her bowels are normal. She did not feel there had been any significant change as a result of her medication. She has adjusted her diet around her gastric sleeve and she did not believe there was any significant alteration in her bowel function.”[76]

   [76] Claimant's documents at page 78.

6. Dr Greenberg opined that Ms Moutrage’s symptoms were consistent with analgesic gastropathy and gastro-oesophageal reflux disease (GORD), which are known to be associated with the long-term use of NSAIDs. In Ms Moutrage’s case, these drugs included Nurofen, Nurofen Plus, Lyrica and Cymbalta and Dr Greenberg referred to the research in this regard. He noted that it had been his experience that proton pump inhibitors like Nexium, although helpful, did not resolve upper gastrointestinal symptoms and often gave only temporary respite.

7. Dr Greenberg opined that it was possible that the small doses of codeine were aggravating Ms Moutrage’s gastrointestinal motility and adding to her symptoms. He further opined that her previous gastric surgery (gastric sleeve reduction) was unlikely to be aggravating her current symptoms. The findings on gastrointestinal endoscopy were consistent. He opined that, whilst Ms Moutrage requires ongoing medication for her orthopaedic injuries, it is unlikely that her gastrointestinal symptoms will settle.

8. In respect of the upper gastrointestinal tract, Dr Greenberg assessed Ms Moutrage’s permanent impairment at 2% WPI based on AMA 4 Guides, page 239, Table 2, Class 1,
   Range 0-9%.

9. In respect of the lower gastrointestinal tract, Dr Greenberg assessed Ms Moutrage’s permanent impairment at 0% based on AMA 4 Guides, page 241, Table 3, Class 1,
   Range 0-9%.

10. Accordingly, Dr Greenberg assessed the combined WPI at 2%.

Dr Matthew Giblin: 2 August 2017

1. On 2 August 2017, Ms Moutrage consulted Dr Giblin at the request of her lawyers. Dr Giblin provided a report dated 2 August 2017.[77] The Panel noted that Dr Giblin had been Ms Moutrage’s treating orthopaedic surgeon for a period of time.

   [77] Insurer's documents at pages 148-153.

2. Dr Giblin took a history of the motor accident and treatment thereafter that was consistent with his report dated 14 March 2016. He noted that Ms Moutrage had consulted him again on 21 March 2016 when he suggested that she try a right-sided sacroiliac joint injection due to some marked uptake in the right sacroiliac joint demonstrated on a bone scan.

3. Dr Giblin noted that, since his last consultation, Ms Moutrage had to change jobs several times because she was unable to cope with the lifting and bending required. She had also consulted another specialist, Dr Bazina, who advised further injections. However, she had elected not to proceed with the injections.

4. In respect of current complaints, Ms Moutrage complained of ongoing neck pain with radiation into both trapezii and low back pain. She remained under the care of her general practitioner and took Lyrica, Nurofen and an antidepressant. She continued to undergo chiropractic treatment and physiotherapy once per week.

5. Dr Giblin conducted a physical examination of Ms Moutrage’s cervical spine and lumbar spine and noted the restrictions. He observed muscle spasm in the cervical spine; no significant peripheral neurological signs; and a full range of movement in both shoulders. In respect of the lumbar spine, straight leg raising was 80° bilaterally and there were no significant peripheral neurological signs.

6. Dr Giblin opined that Ms Moutrage’s injuries were consistent with the motor accident she had described. He opined that she had sustained soft tissue injuries to the cervical spine and the lumbar spine.

7. In respect of the cervical spine, Dr Giblin assessed Ms Moutrage as DRE Cervicothoracic Category II, attracting a 5% WPI.

8. In respect of the lumbar spine, Dr Giblin assessed Ms Moutrage as DRE Lumbosacral Category II, attracting a 5% WPI.

9. Accordingly, Dr Giblin assessed the combined WPI at 10%.

Dr Eugene Gehr: 15 October 2018

1. On 15 October 2018, Ms Moutrage consulted Dr Eugene Gehr, orthopaedic surgeon, at the request of the insurer. Dr Gehr prepared a report dated 15 October 2018.[78]

   [78] Insurer's documents at pages 52-61.

2. Ms Moutrage informed Dr Gehr that, prior to the motor accident, she had not made any previous compensation claims nor did she have any problems with her neck, back or shoulders. She underwent a gastric sleeve operation after the motor accident.

3. Ms Moutrage informed Dr Gehr that, after the motor accident, she developed pain in her neck and in her back. She saw her doctor straightaway and she was examined. She underwent X-rays and an MRI scan. Physiotherapy was organised and still continues. She was subsequently assessed by Dr Giblin. There had been a recommendation for cortisone injections. She had undergone one injection in her back. She also consulted another specialist, Dr Bazina. She did not recall seeing a pain specialist.

4. Dr Gehr conducted a clinical examination and reported his observations.

5. Dr Gehr referred to MRI scans of the cervical spine and lumbar spine dated 8 April 2017 that Ms Moutrage had brought with her to the consultation. Dr Gehr observed a disc bulge at the L5/S1 of the lumbar spine in the imaging.

6. Dr Gehr concluded that Ms Moutrage suffered injuries to her cervical spine and lumbar spine in the motor accident. He noted that she reported no significant improvement in symptoms over a period of 5.5 years. Dr Gehr’s diagnosis was one of cervical spine pain and lumbar spine pain. He opined that there was no aggravation of a pre-existing condition. He further opined that Ms Moutrage’s current restrictions and treatment needs were totally attributable to the motor accident.

7. In respect of work capacity, in light of the injuries sustained in the motor accident, Dr Gehr noted that Ms Moutrage had been able to get back to an alternative workplace but with weightlifting restrictions. She had an unlimited work capacity prior to the motor accident. He opined that her current restrictions would continue on an indefinite basis.

8. Dr Gehr opined that Ms Moutrage’s weight problem contributed to her ongoing neck and back problems.

9. Whilst it was clear to him that Ms Moutrage suffered neck and back pain, Dr Gehr could not find any clear organic signs for such pain. He opined that she should seek treatment at a chronic pain clinic.

10. In respect of the cervical spine, Dr Gehr assessed Ms Moutrage as DRE Cervicothoracic Category I, attracting a 0% WPI.

11. In respect of the lumbar spine, Dr Gehr assessed Ms Moutrage as DRE Lumbosacral Category I, attracting a 0% WPI.

12. Accordingly, Dr Gehr assessed the combined WPI at 0%.

Dr Eugene Gehr: 27 December 2018

1. On 27 December 2018, Dr Gehr provided a supplementary report at the request of the insurer.[79]

   [79] Insurer's documents at pages 62-63.

2. In his supplementary report, Dr Gehr clarified that the injuries caused by the motor accident were soft tissue injuries to the cervical spine and the lumbar spine. He opined that the diagnosis was based on the history provided, his examination and the review of the imaging available to him. At the time of the examination, there were no significant clinical findings in the cervical spine or the lumbar spine, although Ms Moutrage did report pain in those regions.

3. Further, Dr Gehr noted and opined as follows:

   “I would have expected the laparoscopic sleeve surgery that she had in 2014 to have reduced her symptoms but, in fact, she told me it had increased. It is difficult to find a physiological basis for this.

   It is now over five years since the subject accident and the relatively minor soft tissue physical injuries that she had from the subject accident would be expected to have resolved by this date. I would have expected physical soft tissue injuries of the cervical and lumbar spine to have long ago resolved. However, she does continue to report pain in the cervical and lumbar spine but I could find no physical or organic basis for it.”[80]

   [80] Insurer's documents at pages 62-63 at [2].

Dr Siddarth Sethi: 31 December 2021

1. On 21 December 2021, Ms Moutrage consulted Dr Siddarth Sethi, gastroenterologist and hepatologist, at the request of the insurer’s lawyers. Dr Sethi provided a report dated 31 December 2021.[81]

   [81] Insurer's documents at pages 66-75.

2. Dr Sethi took the following history of injury:

   “On 29/3/13, Ms. Moutrage was a passenger in a car driven by her mother. Her vehicle was struck by another vehicle. She was wearing a seatbelt at the time and airbags did not deploy. The car was written off. She did not immediately seek medical attention afterwards. A few days later, Ms. Moutrage developed neck, left shoulder, back and chest pain. She was prescribed Panadol rapid, Tramadol, Cymbalta, Nurofen plus, Panadeine forte, Cymbalta and Lyrica.

   A few months later, Ms. Moutrage developed gastrointestinal symptoms for the first time. She experienced an acid burning sensation radiating upwards. There was a burning sensation in the neck and mouth. This was associated with nausea and vomiting and would occur several times weekly. She noted a metallic taste in the mouth. Bowel habits became irregular alternating between diarrhoea and constipation. The predominant pattern was diarrhoea where she passed around 3 to 4 loose motions daily. There was excess wind and gas. Eating spicy and acidic foods would worsen her symptoms.

   Ms. Moutrage was initially prescribed Nexium. This was ineffective and was later ceased. She has since used Mylanta and Buscopan as required.

   On 8/4/16, Ms. Moutrage underwent gastroscopy. This showed severe erosive linear gastritis with no evidence of peptic ulcer disease.

   At present, Ms. Moutrage’s gastrointestinal symptoms are persisting.

   Ms. Moutrage is a non-smoker and non-drinker.”[82]

   [82] Insurer's documents at page 68.

3. Dr Sethi noted that Ms Moutrage’s past medical history included severe morbid obesity and depression/anxiety.

4. Dr Sethi noted that Ms Moutrage’s current medications included Cymbalta 60mg daily; Panadol seven tablets daily; Tramadol as needed; and Mylanta/Buscopan as needed. He also noted that, at present, her symptoms of reflux, bloating, nausea and irregular bowel habits with alternating diarrhoea and constipation were persisting.

5. On examination, Dr Sethi noted that Ms Moutrage was 165cm tall and weighed 110kg. The abdomen was soft. There was mild generalised tenderness. There were no masses or organomegaly. Dr Sethi opined that Ms Moutrage had moderately severe obesity with a BMI of 40.

6. Dr Sethi provided the following diagnosis:

   “Ms. Moutrage has developed GORD and IBS (irritable bowel syndrome) independently of her accident and the medications that she was prescribed afterwards. This did not play any causative role and it has developed regardless. Her obesity has likely significantly contributed to her GORD and IBS. Her previous laparoscopic sleeve gastrectomy has contributed to her GORD. From a gastrointestinal perspective, Ms. Moutrage is fully fit to work full time without any restrictions.”[83]

   [83] Insurer's documents at page 71.

7. Dr Sethi disagreed with Dr Greenberg’s diagnosis of analgesic gastropathy and opined that it was a histological diagnosis of no significance. Ms Moutrage’s gastro-oesophageal reflux disease developed of its own accord and was unrelated to the motor accident. Dr Sethi disagreed with the possible contributing factor of medication induced gastrointestinal motility disorder. Ms Moutrage had very likely developed IBS of her own accord to which her obesity had likely significantly contributed.

8. Dr Sethi opined that Ms Moutrage did not have a permanent impairment caused by the motor accident. In any event, he assessed a 0% WPI for the upper gastrointestinal tract and 0% WPI for the lower gastrointestinal tract and provided his reasons in this regard.

Dr Robin Mitchell: 16 January 2022

1. On 27 January 2022, Ms Moutrage consulted Dr Robin Mitchell, occupational physician, at the request of the insurer’s lawyers. Dr Mitchell provided a report incorrectly dated 16 January 2022.[84]

   [84] Insurer's documents at pages 76-88.

2. Dr Mitchell took a history of the motor accident and medical treatment thereafter that was consistent with the evidence.

3. In respect of Ms Moutrage’s past medical history, Dr Mitchell noted that she was medically well apart from asthma which was managed with medication, episodes of depression in 2012 and 2016 and anaemia. He also noted the gastric sleeve surgery on 17 October 2014.

4. On examination, Dr Mitchell observed that Ms Moutrage’s responses had been consistent and appropriate. He noted that she had a heavy physical stature, weighing 110kg and 165cm in height. In respect of the head, neck and spine, he observed that spinal alignment was normal and that the ranges of movement in the neck and thoracolumbar spine were normal. Straight leg raising was normal at 90° bilaterally and neurologically the lower limbs were normal for both tendon reflexes and skin sensation. Shoulders, elbows, wrists and hands were normal.

5. Dr Mitchell listed and reviewed the investigations made available to him.

6. Dr Mitchell provided the following diagnosis:

   “Ms Moutrage reports widespread ongoing pain in the neck, thoracic and lumbar back, each shoulder, and each leg, as well as each wrist and the right knee following the subject accident of 19 March 2013.

   However there is no current objective clinical evidence to indicate any underlying injury and all of the radiological studies undertaken have been normal without identifying any underlying injury.

   Therefore her symptoms appear to be of a soft tissue nature only.”[85]

   [85] Insurer's documents at page 82.

7. In respect of prognosis, Dr Mitchell opined that with no objective evidence of injury and no radiological abnormality, Ms Moutrage’s prognosis should be good.

8. Dr Mitchell opined that Ms Moutrage had a current capacity for suitable work with restrictions on a full-time basis.

9. In respect of presentation on clinical examination, Dr Mitchell opined that Ms Moutrage’s presentation was reasonable apart from a degree of symptoms and disability focus. Responses during the physical examination indicated a degree of voluntary self-restraint on her part, which restricted the movement allowed.

10. Dr Mitchell noted that the SPECT CT study report raised the possibility of an old pelvic fracture. However, no other investigations confirmed any such finding and, accordingly, in the absence of any history of significant trauma and no sequelae of significance reported by Ms Moutrage, such finding would be reasonably discounted as insignificant resulting in the investigations being considered normal.

11. Dr Mitchell assessed the cervical spine, the thoracic spine, the lumbar spine and bilateral shoulders each at 0% WPI.

Dr Robin Mitchell: 15 August 2022

1. On 15 August 2022, Dr Mitchell provided a supplementary report at the request of the insurer’s lawyers.[86]

   [86] Insurer's documents at pages 89-92.

2. Dr Mitchell was provided with additional documents, namely, the reports of Dr Gehr and the lumbar spine and pelvis CT scan dated 6 June 2022.

3. Dr Mitchell observed that the CT scan of the lumbar spine and pelvis dated 6 June 2022 demonstrated no significant abnormality or evidence of injury apart from a degree of degenerative arthropathy in the right sacroiliac joint and an annulus tear and disc protrusion at L5/S1 without nerve root impingement.

4. In respect of the issue as to whether Ms Moutrage suffered a pelvic fracture caused by the motor accident, Dr Mitchell opined that there was no previous clinical radiological evidence of the same arising from the motor accident. The CT scan report dated 6 June 2022 confirmed that there was no current evidence of any bony injury.

5. As to whether the CT scan report dated 6 June 2022 demonstrated evidence of injury to the lumbosacral spine, Dr Mitchell opined as follows:

   “The most recent CT scan does not show any evidence of injury to the lumbosacral spine. It did describe an ‘L5/S1 annulus tear and disc disruption with mild thecal sac compression without root impingement’. However, taken into account with earlier normal MRI scan of the lumbar spine, and the 2 previous scans identifying no inflammatory changes in those regions, the more recent finding is not related to the subject injury event of 9 years ago.”[87]

   [87] Insurer's documents at page 91 at [3].

6. In respect of the findings of mild discovertebral changes and degenerative arthropathy in the right sacroiliac joint in the CT scan report dated 6 June 2022, Dr Mitchell opined as follows:

   “The described findings do not have any relationship to the subject accident of 9 years ago, because the subsequent MRI scan and sensitive bone scans undertaken in 2016 and the [sic: in] 2020 indicated no subsequent abnormality or evidence of injury at those times.

   Therefore, any subsequent findings of the nature described would be considered to be constitutional and having developed a significant period of time after the subject motor vehicle accident.”[88]

   [88] Insurer's documents at page 91 at [4].

7. The findings in the CT scan report dated 6 June 2022 did not indicate that there should be any change in the opinions expressed in his earlier report.

Dr Yajuvendra Bisht: 21 December 2022

1. On 31 October 2022, Ms Moutrage consulted Dr Yajuvendra Bisht, psychiatrist, at the request of the insurer’s lawyers. Dr Bisht provided a report dated 21 December 2022 in respect of the alleged psychological injuries sustained by Ms Moutrage in the motor accident.[89]

   [89] Insurer's documents at pages 93-105.

2. Dr Bisht diagnosed Ms Moutrage with a major depressive disorder caused by the motor accident.

3. Dr Bisht assessed Ms Moutrage’s WPI in respect of her psychological/psychiatric injury at 5%.

Dr Jeff Bertucen: 28 February 2023

1. On 27 February 2023, Ms Moutrage consulted Dr Jeff Burtucen, consultant psychiatrist, at the request of her lawyers. Dr Burtucen provided a report dated 28 February 2023 in respect of the alleged psychological injuries sustained by Ms Moutrage in the motor accident.[90]

   [90] Claimant's documents at pages 40-34.

2. Dr Bertucen diagnosed Ms Moutrage with a long-standing and fluctuating major depressive disorder substantially caused by the motor accident.

3. Dr Bertucen assessed Ms Moutrage’s WPI in respect of her psychological/psychiatric injury at 15%.

Dr Andrew Porteous: 20 September 2023

1. On 7 September 2023, Ms Moutrage consulted Dr Andrew Porteous, occupational physician, at the request of her lawyers. Dr Porteous provided a report dated 20 September 2023.[91]

   [91] Claimant's documents at pages 49-57.

2. Dr Porteous took a history of the motor accident and subsequent medical treatment that was consistent with the evidence.

3. On examination of the cervical spine, Dr Porteous observed 75% of expected extension; 80% of expected flexion; 50°, 50°, 53° left lateral movement; 40°, 46°, 43° right lateral movement measured with a goniometer; there was dysmetria, guarding and considerable restriction.

4. On examination of the shoulders, Dr Porteous observed restricted range of shoulder movement in both shoulders due to neck pain, namely, 140° (3%) bilaterally and 140° abduction (2%) bilaterally with the rest of movements being 60° except for internal rotation which was 80°.

5. On examination of the upper limbs, Dr Porteous observed that there was normal power, sensation and reflexes except in the right fourth and fifth fingers and medial hand where Ms Moutrage had subtly reduced sensation. There was normal ulnar nerve motor strength in the right hand.

6. On examination of the lumbar spine, Dr Porteous observed marked restriction with 20% of expected extension; flexion only to the mid thighs; 25°, 23°, 25° left lateral movement; 15°, 18°, 20° right lateral movement measured with a goniometer; and there was loss of curvature, subtle dysmetria and guarding but no spasm.

7. On examination of the lower limbs, Dr Porteous observed normal reflexes and normal power at 5/5. There was normal sensation. There was evidence of distinct radiculopathy noting that there was very subtle restriction and it was hard to see the right ankle S1 reflexes. Dr Porteous noted that the CT scan dated 4 June 2022 demonstrated an L5/S1 disc protrusion with an annular tear and bilateral facet joint arthropathy. However, there was no suggestion of nerve root impingement recorded.

8. Dr Porteous opined that, more likely than not, Ms Moutrage had suffered acute soft tissue injuries to the cervical spine and the lumbar spine in the motor accident. In the available reports and medical records, Ms Moutrage consistently reported chronic cervical spine pain and lumbar spine pain since the motor accident, which had not resolved at any point. There was evidence on the medical imaging of some disc protrusion both in the cervical spine at C6/7 and the lumbar spine at L5/S1 in the early scans. Dr Porteous opined that it was very likely Ms Moutrage had aggravated or exacerbated those pre-existing changes.

9. In respect of the alleged pelvic fracture, Dr Porteous noted the following:

   “I note the bone scan, 24 August 2020, showed increased vascularity in the region of the sacroiliac joint with a bony reaction in the same region and a sclerotic line in the iliac bone adjacent to the sacroiliac joint. As said, they can sometimes reflect an old pelvic fracture, but the history is not consistent with forces extensive enough, in my opinion, to cause that. Otherwise, the bone scan did not show any significant findings.”[92]

   [92] Claimant's documents at page 54 at [2].

10. Dr Porteous observed that Ms Moutrage’s spinal pain had been deteriorating. She had been working full-time at Swarovski whilst sheltered by her manager at the time. She was able to cope with that work. Even in her current sheltered work with Prestige she had been unable to work full-time and “there has clearly been a deterioration.”[93]

    [93] Claimant's documents at page 54 at [3].

11. As to causation, Dr Porteous opined as follows:

    “It is clear that more likely than not on the balance of probabilities given the robust temporal association between the onset of cervical spine and lumbar spine pain with the original accident and with her ongoing injuries in the cervical spine and lumbar spine still present that they were more likely than not caused substantially and mainly as a result of the subject accident and continue to date.”[94]

    [94] Claimant's documents at page 54 at [3].

12. In respect of the cervical spine, Dr Porteous assessed Ms Moutrage as DRE Cervicothoracic Category II, attracting a 5% WPI.

13. In respect of the upper extremities, Dr Porteous made the following assessment:

    “The clinical findings today in the shoulders result in a total 5% Upper Extremity Impairment or a 3% WPI in the right shoulder and a 5% Upper Extremity Impairment or a 3% WPI in the left shoulder according to Figures 38, 41, 44, noting that the shoulder restriction is because of the neck pain and inclusion based on the Nguyen principle as it is directly as a result of that injury and flows on from it.”[95]

    [95] Claimant's documents at page 56 at [7].

14. In respect of the lumbar spine, Dr Porteous assessed Ms Moutrage as DRE Lumbosacral Category II, attracting a 5% WPI.

15. Dr Porteous opined that there was no evidence of prior impairment and therefore, there was no deductible proportion. He assessed the combined WPI at 16%.

Dr Robin Mitchell: 11 December 2023

1. On 7 December 2023, Ms Moutrage again consulted Dr Mitchell at the request of the insurer’s lawyers. Dr Mitchell provided a report dated 11 December 2023.

2. Dr Mitchell repeated the history of injury, subsequent medical treatment and past medical history recorded in his report dated 16 January 2022. He noted that current medications included Endone, Tramadol, Voltaren, Nurofen Plus, Panadol, Mirtazapine and Nexium.

3. In respect of her current status, Ms Moutrage reported to Dr Mitchell that she continued to have pain in her neck that radiated out towards each shoulder at a level of between 5/10 and 8/10 on a visual analogue scale (VAS). She complained of pain in the pelvis which she attributed to a previous fracture injury. She complained of low back pain that radiated out towards each hip and down each leg posteriorly to the lower calf at a level of between 7/10 and10/10 on a VAS. She also complained of separate pain in each wrist and the right knee. Symptoms were aggravated with any physical activity as well as standing or sitting for prolonged periods of time.

4. Dr Mitchell noted that Ms Moutrage complained of widespread pain throughout her neck, shoulders, thoracic spine, lumbar spine and both legs, together with an incapacity to manage any significant physical activity or lifting more than 1kg or 2kg.

5. Dr Mitchell noted that Ms Moutrage provided her history in an obvious symptom and disability focused manner.

6. Dr Mitchell observed that Ms Moutrage’s responses during examination were inconsistent at times due to guarding or voluntary self-restraint. He observed that she had a heavy physical stature, weighing 120kg and measuring 165cm in height.

7. On examination of the head, neck and spine, Dr Mitchell observed that spinal alignment was normal and that the range of movement was inconsistently reduced in the neck and the thoracolumbar back.

8. On examination of the cervical spine, Dr Mitchell observed that flexion was three quarters of normal; extension was three quarters of normal; lateral flexion to the right was three quarters of normal; lateral flexion to the left was three quarters of normal; rotation to the right was normal; and rotation to the left was normal.

9. On examination of the thoracic spine, Dr Mitchell observed that flexion was normal; extension was normal; rotation to the right was three quarters of normal; and rotation to the left was three quarters of normal.

10. On examination of the lumbar spine, Dr Mitchell observed that flexion was three quarters of normal; extension was three quarters of normal; lateral flexion to the right was half of normal; and lateral flexion to the left was half of normal.

11. Dr Mitchell observed that muscle tone was normal to palpation and that both legs were clinically normal. Straight leg raising was normal at 90° bilaterally and neurologically the lower limbs were normal for both tendon reflexes and skin sensation.

12. On examination of the shoulders and arms, Dr Mitchell observed that the shoulders demonstrated inconsistent responses on repeated testing which Ms Moutrage indicated was due to pain. The elbows, wrists and hands examined normally.

13. Dr Mitchell opined that Ms Moutrage’s symptoms appeared to be of a soft tissue nature and that there were no conditions caused or materially contributed to by the motor accident because any soft tissue injury that may have occurred in the manner described would have fully resolved within a period of less than two or three months.

14. In respect of Dr Porteous’ assessment of Ms Moutrage’s bilateral shoulders, Dr Mitchell opined as follows:

    “I note the description of shoulder movement in the report of Dr Porteous, however Ms Moutrage’s responses during my assessment was so inconsistent that range of movement cannot be used to assess impairment. His use of the Nguyen principle to assess impairment in each shoulder is inappropriate, because there was no clinical or radiological evidence of injury to the neck or cervical spine.”[96]

    [96] Dr Mitchell's report at page 9 at [3].

15. Dr Mitchell opined that Ms Moutrage’s cervical spine had the clinical characteristics of a DRE I impairment rating based on an original report of injury with some ongoing symptoms; no observed muscle guarding or spasm; no documented neurological impairment or clinical radiculopathy; and no evidence of asymmetric loss of range of motion. The DRE I impairment rating attracted a 0% WPI.

16. Dr Mitchell opined that Ms Moutrage’s thoracic spine had the clinical characteristics of a DRE I impairment due to an original report of injury with some ongoing symptoms but no observed muscle guarding or spasm; no documented neurological impairment or clinical radiculopathy; and no evidence of asymmetric loss of range of motion. The DRE I impairment rating attracted a 0% WPI.

1. Dr Mitchell opined that Ms Moutrage’s lumbar spine had the clinical characteristics of a DRE I impairment due to an original report of injury with some ongoing symptoms but no observed muscle guarding or spasm; no documented neurological impairment or clinical radiculopathy; and no evidence of asymmetric loss of range of motion. The DRE I impairment rating attracted a 0% WPI.

2. Dr Mitchell opined that Ms Moutrage’s bilateral shoulder joint movement was inconsistent on repeated requests to demonstrate the most movement she could manage without pain. Therefore, the range of movement method could not be used to assess permanent impairment. There was no clinical or radiological evidence of injury and therefore, both the left and right shoulders attracted a 0% WPI.

Medical assessment certificates

Medical Assessor Neil Berry: 30 November 2022

1. On 21 November 2022, Ms Moutrage was assessed by Medical Assessor Berry in respect of a permanent impairment dispute for the physical injuries alleged to have been caused by the motor accident.

2. On 30 November 2022, Medical Assessor Berry issued a certificate in respect of the permanent impairment dispute.[97]

   [97] Insurer's documents at pages 109-117.

3. Medical Assessor Berry was asked to assess the dispute between the parties about the degree of permanent impairment under s 58(1)(d) of the MAC Act in respect of the following claimed injuries:

   (a)    cervical spine – strain, exacerbation, causation;

   (b)    lumbar spine – L5-S1 annular tear and disc protrusion with mild thecal sac compression without root impingement;

   (c)    pelvic fracture, and

   (d)    stomach – upper gastrointestinal tract, strain, exacerbation.

4. The Panel noted that Ms Moutrage’s bilateral shoulders were not included for assessment.

5. Medical Assessor Berry noted that, in terms of her health, Ms Moutrage was obese with a pre-accident weight of 90kg. Ms Moutrage informed him that she was not aware of any serious health issues and did not have any prior accidents, injuries or claims for compensation.

6. Medical Assessor Berry took the following history of the motor accident:

   “Ms Moutrage told that the accident occurred on 19 March 2013. She was able to recall that she was a front seat passenger in a vehicle driven by her mother. Her mother was able to tell me that she was driving a Camry sedan and both occupants were wearing seatbelts. Ms Moutrage had been picked up from work and was on her way home. They were in her street when she became aware of a massive bang and while she was not knocked unconscious she was shaken and dazed. Apparently, her mother was more injured than herself and was taken to Liverpool Hospital where she was kept for some time.

   Ms Moutrage’s memory of the surrounding events was vague but she recalls that she was sore in the neck after getting out of the vehicle and on her way home she began to develop back pain.”[98]

   [98] Insurer's documents at page 111 at [9].

7. Medical Assessor Berry noted that Ms Moutrage consulted her general practitioner, Dr Williams, two days later. She was off work for about three weeks and was referred for some scans. The insurer disallowed multiple proposed treatments but she took a number of medications. Ms Moutrage continued to suffer pain in her neck and back.

8. In respect of Ms Moutrage’s current symptoms, Medical Assessor Berry noted that she continued to suffer from neck discomfort which was not as severe as her back. She suffered severe pain in her back that, at times, radiated down both legs, worse in the left leg, especially on the outside of the leg and in the foot. She complained of reflux, nausea and constipation, the latter of which had been controlled with medications.

9. Medical Assessor Berry noted that Ms Moutrage’s medications included Nexium, Endone, Celebrex, Duloxetine and Nurofen. She stated that she was not receiving any other form of treatment and that she may be considered for nerve stimulation treatment in her back in 2023.

10. In respect of Ms Moutrage’s general presentation, Medical Assessor Berry observed that she presented as a young woman who was obese. She was 165cm in height and 125kg in weight. She moved with normal posture and gait.

11. On examination of the cervicothoracic spine, Medical Assessor Berry observed that Ms Moutrage was diffusely tender to palpation; there was no muscle guarding; no muscle spasm; no alteration of spinal contour; and all movements of the neck were reduced to one third of the normal range.

12. On examination of the thoracolumbar spine, Medical Assessor Berry observed that the thoracic spine was not tender to palpation; there was no muscle spasm; no alteration of a normal kyphosis; and no evidence of dysmetria.

13. On examination of the lumbosacral spine, Medical Assessor Berry observed that Ms Moutrage was tender in the lower midline and on the left iliac crest. She demonstrated half the normal range of flexion; virtually no extension; and one third of the normal range of rotation. There was flattening of the lumbar lordosis but no paraspinal muscle spasm.

14. On examination of the upper extremities, Ms Moutrage demonstrated a full range of movement of both shoulders, elbows and wrists; reflexes were equal and active; there was no unilateral muscle wasting; no nerve root tension sign; and no sensory disturbance.

15. On examination of the lower extremities, Ms Moutrage demonstrated normal reflexes; 20° of straight leg raising on the right side and 10° on the left side; there was no evidence of a nerve root tension sign; no dermatomal sensory changes; no evidence of unilateral muscle wasting.

16. On examination of the abdomen, Medical Assessor Berry observed that Ms Moutrage was tender in the epigastrium. He noted scars consistent with a laparoscopic sleeve gastrectomy. He observed a protuberant abdomen and diffuse tenderness in other areas of the abdomen. There was no guarding, rigidity or rebound and no palpable masses. Auscultation was normal.

17. Medical Assessor Berry observed that Ms Moutrage was entirely cooperative throughout the examination and interview with no evidence of illness behaviour or exaggeration that would complicate the examination.

18. Medical Assessor Berry opined that the history of the motor accident was vague but consistent with Ms Moutrage having sustained soft tissue injuries to her neck and back. Further, her medication intake was consistent with inflammatory changes in the gastric remnant after a sleeve gastrectomy in 2014.

19. Medical Assessor Berry opined that the review of Ms Moutrage’s radiological studies demonstrated no evidence of a pelvic fracture.

20. In respect of the cervical spine, Medical Assessor Berry noted that Ms Moutrage had symptoms but that there were no clinical signs and no evidence of upper limb radiculopathy and accordingly, assessed her as DRE Cervicothoracic Category I, attracting a 0% WPI.

21. In respect of the lumbar spine, Medical Assessor Berry noted that Ms Moutrage had an asymmetrical range of movement and non-verifiable radicular complaints in the left leg which was consistent with having an L5/S1 annular tear and disc protrusion with mild thecal sac compression without nerve root impingement and accordingly, assessed her as DRE Lumbosacral Category II, attracting a 5% WPI.

22. In respect of the upper gastrointestinal tract, Medical Assessor Berry noted that Ms Moutrage had symptoms or signs of upper digestive tract disease. There was no anatomic loss or change and her weight had increased. Accordingly, he placed her in Class 1 and assigned a 2% WPI.

23. Based on the above findings, Medical Assessor Berry assessed a total degree of permanent impairment of 7% WPI.

Medical Assessor Doron Samuell: 14 June 2023

1. On 30 May 2023, Ms Moutrage was assessed by Medical Assessor Doron Samuell in respect of a permanent impairment dispute for the psychological injuries alleged to have been caused by the motor accident.

2. On 14 June 2023, Medical Assessor Samuell issued a certificate in respect of the permanent impairment dispute.[99]

   [99] Insurer's documents at pages 118-125.

3. Medical Assessor Samuell determined that Ms Moutrage’s current symptoms were indicative of a panic disorder with some features of distress and that there was no clear plausible connection between the motor accident and the diagnosed panic disorder. He opined that there was clear contemporaneous evidence that the panic disorder arose within the context of workplace issues. Accordingly, an assessment of the degree of permanent impairment was not required.

SUBMISSIONS

Insurer’s submissions

1. The insurer provided written submissions dated 10 November 2023 in reply to Ms Moutrage’s application for further assessment of a permanent impairment dispute.[100] It also provided written submissions dated 12 April 2024 in respect of its application for review of the medical assessment by Medical Assessor Berry.[101]

   [100] Insurer’s documents at pages 28-30.

   [101] Insurer’s documents at pages 2-13.

2. Ms Moutrage was further assessed by Medical Assessor Berry on 26 February 2024 for an alleged deterioration of the injuries caused in the motor accident.

3. Medical Assessor Berry failed to engage with the following clearly articulated arguments advanced by the insurer:

   (a)    Ms Moutrage’s injuries have not deteriorated;

   (b)    the effects of the subject accident had ceased and the present complaints were unrelated to the effects of the motor accident;

   (c)    the motor accident could not and did not cause more than a negligible effect to the alleged worsening nine years after the accident in the absence of structural injuries caused by the motor accident, and

   (d)    Ms Moutrage’s present complaints were not consistent with the extensive medical records and Medical Assessor Berry failed to bring that to her attention.

4. Medical Assessor Berry conducted an incomplete and incorrect examination of Ms Moutrage’s spine

5. Medical Assessor Berry failed to provide an explanation of the significant finding of permanent restriction in range of motion in the absence of any muscle wasting.

6. In his certificate dated 30 November 2022, Medical Assessor Berry reported that Ms Moutrage demonstrated a full range of movement in both shoulders, elbows, and wrists. Ms Moutrage’s reflexes were equal and active and no muscle wasting, sensory disturbance or root tension was noted. He diagnosed Ms Moutrage with a soft tissue injury to the cervical spine and made a finding of 0% WPI relating thereto.

7. A considerable time has lapsed since the date of the motor accident and the onset of the alleged reduced range of movement in Ms Moutrage’s shoulders. For nine years following the motor accident, Ms Moutrage had no restriction to the range of movement in her shoulders. A restricted range of movement is now reported, more than ten years after the motor accident.

8. Medical Assessor Berry’s explanation that medication allowed Ms Moutrage to previously be assessed without any restrictions was evidence that her injuries are amenable to treatment and that the impairment is not static and well stabilised with or without treatment.

9. Medical Assessor Berry failed to provide reasons for the stabilisation of Ms Moutrage’s impairment consistent with cl 1.19 of the Guidelines.

10. Medical Assessor Berry failed to provide sufficient reasons for his assessment of the upper gastric tract impairment.

Ms Moutrage’s submissions

1. Ms Moutrage’s lawyers provided written submissions dated 24 October 2023 supporting her application for further assessment of a permanent impairment dispute.[102] They also provided written submissions dated 1 May 2024 in reply to the insurer’s application for review of the medical assessment by Medical Assessor Berry.[103]

   [102] Claimant’s documents at pages 15-18.

   [103] Claimant’s documents at pages 1-7.

2. Ms Moutrage was assessed by Medical Assessor Berry on 21 November 2022 and he issued a certificate dated 30 November 2022 certifying that she had a 7% WPI as a result of the injuries she sustained in the motor accident.

3. Ms Moutrage relied on the report of Dr Porteous dated 20 September 2023, who assessed her as having a 5% WPI of the cervical spine and also determined that there was a restricted range of movement in her bilateral shoulders as a result of neck pain in accordance with the principle espoused in Nguyen. Dr Porteous found that there had clearly been a deterioration in Ms Moutrage’s spinal pain.

4. Ms Moutrage disputed the insurer’s submissions about Medical Assessor Berry’s alleged inadequacies and failure to consider its submissions in the certificate dated 13 March 2024. Ms Moutrage’s lawyers provided reasons for disagreeing that the insurer’s grounds for review had not been made out.

THE RE-EXAMINATION

Preamble

1. On 4 October 2024, the Panel re-examination and assessment of Ms Moutrage was undertaken by Medical Assessors Gibson and Oates on behalf of the Panel.

2. Ms Moutrage attended the appointment with her mother, Ms Ayda Moutrage. The mother was present for the history taking section of the examination and then elected to wait in the waiting room during the physical examination.

Pre-accident medical history and relevant personal details

1. Ms Moutrage said she is right hand dominant and was working as a delicatessen assistant at a Woolworths supermarket at the time of the motor accident.

2. Ms Moutrage said that she does not drink alcohol or smoke cigarettes.

3. Ms Moutrage said that she had no previous accidents or injuries, serious illnesses or surgery prior to the motor accident.

History of the motor accident and subsequent treatment

1. Ms Moutrage said her mother had picked her up from work and was driving a small Camry sedan. They were turning right into the driveway of their home, when they were hit on the driver’s side of their car by a following car, also a sedan, at speed. Their car was written off.

2. Ms Moutrage’s mother was knocked unconscious by the impact. Ms Moutrage looked over and saw this had happened and became very anxious and upset. The focus of her attention was on her mother.

3. An ambulance was called and her mother was taken to hospital and Ms Moutrage was also taken to Liverpool Hospital.

4. Over the next couple of days, Ms Moutrage felt a lot of pain in the neck, shooting down to the back, and saw a family doctor. Her focus was on getting back to work. She saw her general practitioner, Dr Williams, a couple of days after the motor accident. She was sent for imaging. This included the spine. She was treated with Tramadol, Panadol and Nurofen Plus.

5. Ms Moutrage was off work for three or four weeks. She had central neck pain radiating to both trapezii and towards the shoulder girdles, with pins and needles in the ulnar two fingers of the left hand. There was also low back pain and pain in the back of the left thigh. Occasionally, there were pins and needles in the left hallux and other toes of the left foot.

6. She had physiotherapy.

7. Later on, she had cortisone injections to her low back on two occasions but this was not successful.

8. When she returned to work, she was working her usual hours but was taking medications for pain which made her drowsy. Her manager at work knew about her problem but not the higher up store managers.

9. Ms Moutrage subsequently had difficulty with the physical aspects of her work, such as lifting boxes and slicing meat, and her supervisor helped her out with these tasks. There was then a change of her delicatessen manager and the new manager was less supportive. She had increasing difficulty managing the physical aspects of her work, so left the job about a year later.

10. Ms Moutrage was sent to Dr Giblin and Dr Bazina. They sent her for a cortisone injection. When she last saw Dr Bazina, she was recommended radiofrequency neurotomy for the lumbar spine. Ms Moutrage wants to proceed with this, but she feels she is in a rut psychologically and although she has had some flare-ups when her leg has been worse and she could barely move it, she is concerned about going ahead with the procedure. She added that the insurer had not approved any of the treatment she has had since the motor accident and she cannot afford to be paying for treatment continually.

11. Before the motor accident, Ms Moutrage weighed 90kg and after the motor accident, she became depressed and began more comfort eating and her weight increased to 149kg. She underwent a sleeve gastrectomy in 2014 by Dr Durmush. She reduced her weight after surgery down to 79kg. During this time, she was supported by her then employer, Swarovski. However, her situation deteriorated when treatment, such as pain management, was declined by the insurer and her weight increased again to about 125kg to 130kg.

12. With respect to her employment after she left the Woolworths supermarket, Ms Moutrage worked at Pandora for three to four months but could not handle lifting the stock, as it caused increased pain in the neck and back, and she had to take more medication. She was taking a lot of Nurofen Plus and developed stomach issues, so she ceased this. She also took Voltaren.

13. Ms Moutrage left Pandora and worked for Habitat, which is a furniture shop. Again, she could not do the physical duties of the job and left after three to four months.

14. Ms Moutrage then went to Swarovski where she was appointed assistant manager and at that place of employment, she had plenty of staff to help her. She was promoted to store manager and had her own team. They did the heavy lifting. Her manager was supportive. However, a new manager arrived and they were unsupportive of her and then COVID hit, so she left.

15. Ms Moutrage then went to Mecca as a store manager and with the onset of COVID, she was told she would be transferred to Balmain, but she could not cope with the travelling from her home in the Liverpool area. Her duties became more physical. The management was unsupportive. She left.

16. A former manager, who knew Ms Moutrage from Swarovski, hired her with a different employer. She went to Prestige Brands. A co-worker who was there when she started left and she could not manage alone thereafter. She reduced to 15 hours a week with Prestige Brands, working three days a week, five hours a day, as she finds five hours is her limit.

17. Ms Moutrage had a recent review (about three months ago) by Dr Durmush and he told her that her need to increase her analgesic and anti-inflammatory medications would undermine the integrity of the sleeve gastrectomy. She is going to have a review gastroscopy to see if she is suitable to have a revision of the sleeve.

18. Ms Moutrage was also noted to have recent elevation of liver function tests. Her general practitioner advised that her medications may be implicated in this and advised she reduce them.

Injuries or conditions since the motor accident

1. Ms Moutrage informed the Panel that she has had no further accidents or injuries but has had surgery in the form of sleeve gastrectomy in 2014.

Current symptoms

1. Ms Moutrage’s back pain is the worst of her problems and radiates to the buttocks, and she cannot move her left leg at times, having to use her hands to lift her leg in and out of a vehicle.

2. The next most significant problem is neck pain radiating to both shoulders, along with cervicogenic headaches and pins and needles in the ulnar two fingers of the left hand (ring and little), with radiating pins and needles to the left foot. The neck pain radiates to both trapezii and towards the shoulder girdles, more on the left side than the right.

3. Ms Moutrage recently had a CT scan for flank pain but no kidney stones were found. She was admitted to hospital with right upper lateral back pain, which was different to her usual low back pain, and Liverpool Hospital did other investigations and gallstones were found. This precipitated a review with Dr Durmush, who has proposed a revision gastroscopy to see whether revision sleeve gastrectomy is a viable proposition. Dr Durmush was surprised that the hospital did not take any action about her gallstones.

4. Ms Moutrage also has reflux symptoms. She is awaiting a gastroscopy.

Current and proposed treatment

1. Ms Moutrage takes Endone 5mg once or twice per day, or Tramadol for breakthrough pain if the Endone has not worked, but she tries to avoid taking both medications on the same day.

1. She has Panamax every day. She takes Nexium 20mg per day. The Panamax can range up to six or eight tablets per day. She has Mirtazapine 15mg at night.

2. She has Voltaren Gel applied to the neck, left shoulder girdle and lower back, and uses heat packs and Deep Heat.

3. She is awaiting a gastroscopy and possible revision sleeve gastrectomy, depending on the result of gastroscopy, radiofrequency neurotomy for her lumbar spine pain, and possible action on the gallstones.

Clinical examination

General presentation

1. Ms Moutrage is right hand dominant. She is 165cm in height and weighs 133kg.

2. Ms Moutrage sat comfortably but was visibly emotionally distressed at various times during the assessment. She became very distressed and burst into tears after the assessment.

3. Ms Moutrage said she had no complaints with the Medical Assessors but just finds the process to be overwhelming.

Cervical spine (cervicothoracic)

1. There was some tenderness in the mid-line in the mid-cervical spine and right trapezius and left trapezius, both with referred symptoms from the neck. There was no wasting. There was no spasm or guarding.

2. Flexion was two-thirds of normal, extension one-half normal. Rotation two-thirds of normal bilaterally. Lateral flexion one-half normal bilaterally. There was thus asymmetric loss of active range of motion (dysmetria).

3. The complaints of pins and needles did not follow a specific spinal nerve root distribution, and the Medical Assessors did not consider them to be non-verifiable radicular complaints.

4. Reflexes and power in the upper limbs were normal. Sensation testing was normal in the right upper extremity and showed slight global reduction on the left side in the upper arm, forearm and in both right and left hands, in a non-dermatomal pattern.

5. Upper arm girth: right 42cm, left 40cm at 10cm above the elbow.

6. Forearm girth: right 29cm, left 28cm at 5cm below the elbow.

7. These measurements are consistent with stated right hand dominance.

8. The examination findings of dysmetria present indicate a DRE Cervicothoracic Category II, attracting a 5% WPI.

9. There were not two or more signs present on clinical examination, that is, loss or asymmetry of reflexes, muscle atrophy, muscle weakness or reproducible sensory loss anatomically localised to an appropriate spinal nerve root distribution.

Thoracic spine (thoracolumbar)

1. There was no spasm or guarding. There was symmetric range of movement. There was no sensory loss over the trunk.

2. The examination findings indicate DRE Thoracolumbar Category I, attracting a 0% WPI.

Lumbar spine (lumbosacral)

1. Heel walking was normal. Toe walking caused increased left posterior thigh discomfort. The gait was slow. She could squat one-quarter limited by low back discomfort.

2. There was tenderness to light palpation over the sacrum and L5/S1 centrally. There was no guarding and no muscle spasm.

3. Flexion and extension were both one-half of normal range, lateral flexion was one-half normal range bilaterally and rotation was two-thirds of normal range bilaterally.

4. Reflexes were normal with plantar responses both flexors. Power in the lower limbs was normal. Sensation was said to be slightly decreased in the left leg and left foot globally in a non-dermatomal distribution.

5. The reported sensory deficits do not represent non-verifiable radicular complaints because they do not follow a specific spinal nerve root distribution.

6. Thigh girth: 58cm bilaterally at 10cm above superior patellar pole.

7. Leg girth: 44cm bilaterally at point of maximal circumference.

8. Supine straight leg raising; right equals left equals 20° with voluntary resistance at this point owing to complaint of right buttock pain on right straight leg raising, and left buttock pain and low back pain on left straight leg raising, but no radiating symptoms to the lower extremities, indicative of a negative sciatic nerve root tension test.

9. There were not two or more examination findings as detailed in [316] above, nor a positive sciatic nerve root tension sign found to indicate the presence of lumbar radiculopathy.

10. The examination findings of no dysmetria, no guarding, no non-verifiable radicular complaints and no radiculopathy indicate DRE Lumbosacral Category I, attracting a 0% WPI.

Abdomen (digestive system)

1. The epigastrium was tender to palpation. This was mild tenderness.

2. There was no rigidity and no guarding.

3. The bowel sounds were normal.

4. There was no enlargement of liver, spleen or kidneys palpable.

5. Murphy’s sign was negative for gall bladder irritation.

6. There were multiple well-healed laparoscopic portals in the upper abdomen consistent with the sleeve gastrectomy in 2014.

Upper extremities

1. Examination of the shoulders measured by goniometer, resulted in the following range of movement (ROM) findings:

Shoulder Movements
Active ROM measured RIGHT	Active ROM measured LEFT
Flexion	110°, 100°, 100° Limited by trapezial pain	110°, 90°, 80° Limited by trapezial pain
Extension	50°	50°
Adduction	30°	40°
Abduction	110°, 100°, 90° Limited by trapezial pain	110°, 100°, 90° Limited by trapezial pain
Internal rotation	90°	80°
External rotation	80°	40°, 50°, 60° Limited by trapezial pain

Comments on consistency

1. Ms Moutrage was tearful and upset during the assessment, but was co-operative, within the limits she set according to her pain complaints.

2. The Medical Assessors asked her about inconsistency in shoulder range of movement, which varied on repeated testing during the assessment by the Panel, and also varied markedly with the normal range of movement in both shoulders initially recorded by Medical Assessor Berry at his first assessment, reduced active range of motion at Medical Assessor Berry’s reassessment and by contrast with the marked reduction in elevation in both shoulders and external rotation in the left shoulder at this Panel
   re-examination.

3. Ms Moutrage explained that the variability in shoulder range of movement is due to the amount of analgesics that she consumes before the examination. She said that at the Panel examination, she had had half an Endone and two Panadol. However, prior to Medical Assessor Berry’s examination she had a full Endone and four Panadol, hence was able to move the shoulders more freely and comfortably.

4. The Medical Assessors determined that because active range of movement was affected by pain, it could not be used as a valid indicator of permanent impairment. This is accordance with cls 1.40, 1.41 and 1.50 of the Guidelines.

DIAGNOSIS, CAUSATION AND REASONS

1. The Panel noted that the unchallenged evidence was that, on 19 March 2013, Ms Moutrage was a seat-belted front seat passenger of a motor vehicle driven by her mother in the process of turning right into a driveway when T-boned by another motor vehicle that had been travelling in the same direction behind them. There was a single impact. Airbags were not deployed. The vehicle in which Ms Moutrage was a passenger was written off.

2. The Panel considered that the mechanism of the motor accident could have caused the symptoms complained of by Ms Moutrage in her cervical spine, bilateral shoulders, thoracic spine and lumbar spine.

3. The Panel did not find any evidence of direct/frank injury to the right and left shoulder joints in the motor accident. The bilateral shoulder symptoms radiated from the cervical spine.

4. The Panel did not find any definitive evidence of a pelvic fracture in the motor accident. MRI scans of the lumbar spine on 29 January 2016 and 8 April 2017 did not show any pelvic fracture. The whole body bone scan on 18 March 2016 showed no abnormal tracer uptake in the lumbar spine with increased tracer activity in the right sacroiliac joint possibly due to arthritis or stress injury. The bone scan on 24 August 2020 showed a sclerotic line in the left ilium adjacent to the sacroiliac joint of uncertain clinical significance with differential diagnosis of sacroiliitis or possibly an old pelvic fracture. A CT scan of the lumbar spine on 6 June 2022 showed no evidence of sacroiliitis or sacroiliac joint fracture and no other acute osseous injury. The sequential imaging demonstrated that, if any minor pelvic fracture were originally present, it had subsequently healed completely and therefore, would have attracted a WPI rating of 0% if attributable to the motor accident.

5. Following the motor accident, there was early evidence of symptoms in the cervical spine radiating into the right and left shoulder girdles. The entry in Dr Williams’ clinical records dated 5 April 2013, being Ms Moutrage’s first consultation following the motor accident, referred to symptoms in the cervical spine radiating into the bilateral shoulders and symptoms in the thoracic spine.

6. Ms Moutrage completed a motor accident personal injury claim form dated 26 August 2013 wherein she recorded that she had injured her neck, left shoulder, mid back, low back, chest and suffered shock.

7. The entry in Dr Williams’ clinical records dated 7 February 2014 referred to Ms Moutrage complaining of cervical and bilateral trapezius pain and pain in the thoracic/lumbar area.

8. Sometime later, symptoms developed in Ms Moutrage’s digestive tract. The entry in Dr Williams’ clinical records dated 20 February 2016 noted that Ms Moutrage was still experiencing cervical spine and thoracolumbar spine pain. Dr Williams also noted complaints of epigastric pain and upper abdominal pain.

9. There were no entries in the general practitioner clinical records pre-dating the motor accident of complaints by Ms Moutrage of symptoms in her cervical spine, bilateral shoulders, thoracic spine or lumbar spine.

10. Ms Moutrage had experienced pre-accident gastrointestinal symptoms (vomiting and tenderness in the epigastrium) which were recorded by Dr Sidrak in the Moore Street Family Medical Centre clinical records on 5 September 2012 and 26 October 2012. Dr Ghaly recorded abdominal pain in Ms Moutrage’s clinical records in entries on 21 June 2012 and 18 February 2013. The Panel accepts that Ms Moutrage’s weight significantly increased after the motor accident.

11. On 8 April 2016, Ms Moutrage underwent a gastroscopy by Dr Simring who opined that there was severe erosive linear gastritis likely related to NSAIDs. Such finding was consistent with the evidence relating to the various medications Ms Moutrage was taking for symptom relief over a prolonged period of time since the motor accident and was supported by the opinion of Dr Greenberg. The Panel finds that the upper digestive tract irritation could have been caused and was caused to an extent that is more than negligible by the effects of prolonged ingestion of analgesics and anti-inflammatory medication.

12. The Panel accepts the history Ms Moutrage provided to the Panel and other medical examiners that, over the next couple of days following the motor accident, she felt a lot of pain in the neck, shooting down to the back. The Panel also accepted that Ms Moutrage’s focus was on getting back to work and that she returned to work after about three to four weeks. She continued to work for the various employers referred to in the evidence despite the pain she described and the physical restrictions caused by the pain. Some sympathetic supervisors and managers aided her ability to cope with the physical aspects of her duties in the workplace.

13. The medical evidence between 7 February 2014 and 22 January 2016 related mainly to Ms Moutrage’s gastrointestinal symptoms, the laparoscopic sleeve gastrectomy on 17 October 2014 and recovery thereafter. The Panel acknowledged the gap in the recording of cervical spine, bilateral shoulders, thoracic spine and lumbar spine symptoms in the various general practitioner clinical records during this period and accepted that the gap is explained in [333] above and by the focus of her medical treatment being on her gastrointestinal symptoms and the need to lose a significant amount of weight. Further, the Panel accepted that Ms Moutrage had continued to experience symptoms of pain, discomfort and restriction at varying levels in her cervical spine, bilateral shoulders, thoracic spine and lumbar spine since or shortly after the date of the motor accident.

14. The preponderance of the medical and allied health evidence supported that Ms Moutrage had sustained injuries to her cervical spine with referred symptoms into the bilateral shoulder girdles, thoracic spine, lumbar spine and upper digestive tract in the motor accident.

15. The absence of symptoms in the affected areas prior to the motor accident and reasonably prompt development of and persistence of symptoms, persisting disabilities, the need for ongoing treatment and an unbroken chain of causation since the motor accident would indicate, on the balance of probabilities, that the motor accident did cause or contribute to Ms Moutrage’s current symptoms to an extent that is more than negligible.

16. Based on the findings on physical examination and the documents in evidence, the Panel finds that the following injuries were caused by the motor accident:

    (a)    a soft tissue injury to the cervical spine with referred symptoms into the bilateral shoulder girdles, which persist to date;

    (b)    soft tissue injury to the lumbar spine, which persists to date and

    (c)    upper digestive tract disease, which persists to date.

PERMANENCY OF IMPAIRMENT

1. Permanent impairment is defined by the AMA 4 Guides as impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment. A permanent impairment is considered to be unlikely to change substantially, that is, by more than 3% WPI in the next year with or without medical treatment.[104]

   [104] AMA 4 Guides at page 315 and cl 1.19 of the Guidelines.

2. The Panel considered the question of permanency of impairment and is satisfied that Ms Moutrage’s injuries caused by the motor accident have stabilised and are permanent within the meaning of the above definition.

DEGREE OF PERMANENT IMPAIRMENT

1. The Panel assesses Ms Moutrage’s degree of permanent impairment as set out below.

Cervical spine (cervicothoracic)

1. DRE Cervicothoracic Category II impairment for the reasons stated in [308]-[316] above, attracting a 5% WPI.

Thoracic spine (thoracolumbar)

1. DRE Thoracolumbar Category I impairment for the reasons stated in [317] above, attracting a 0% WPI.

Lumbar spine (lumbosacral)

1. DRE Lumbosacral Category I impairment for the reasons stated in [319]-[328] above, attracting a 0% WPI.

Upper extremities

1. For the reasons stated at [337]-[339] above, active range of movement of the right and left shoulders could not be used as a valid indicator of permanent impairment, and the Panel decided to use an analogous condition.

2. The condition chosen was crepitation at the acromioclavicular joint, as this condition causes symptoms and limitations of restriction of elevation of the shoulders and is considered to be the most applicable condition by which to assess permanent impairment in this situation.

3. The shoulders are assessed not on the basis of direct injury, but on the basis of referred symptoms from the cervical spine, as noted on examination of Ms Moutrage and in accordance with the Nguyen.

4. Referring to Table 19 of AMA 4 Guides, page 59, mild joint crepitation gives 10% impairment of the joint. Referring to Table 18 of AMA 4 Guides, page 58, the acromioclavicular joint is 25% upper extremity impairment.

5. Accordingly, 10% of 25% is 2.5% rounded to 3% upper extremity impairment or 2% WPI for the right shoulder and 2% WPI for the left shoulder.

Abdomen (digestive system)

1. There is a 1% WPI assessable for gastroesophageal reflux. This is the result of the ingestion of significant amounts of medication for pain over an extended period of time.

2. This is assessed in accordance with cl 1.247 of the Guidelines. Upper digestive tract disease caused by the commencement and ongoing use of anti-inflammatory medications must be assessed as 0-2% WPI, Class 1 impairment, according to Table 2 of AMA 4 Guides, page 239.

3. The Panel is not aware of any specific signs which are present as a result of upper digestive tract disease. 1% WPI was chosen because the reflux symptoms are controlled by medication and have not resulted in any significant disturbance of nutrition so as to lead to loss of weight. In fact, the reverse has occurred.

The combined impairment

1. The combined impairment is 5% by 2% by 2% by 1% which equals 10% WPI.

Pre-existing or subsequent impairment

1. The Panel finds that there was no history of preceding symptoms prior to the motor accident to suggest any prior impairment.

2. There was no evidence of any subsequent impairment.

3. Accordingly, the Panel finds apportionment of impairment irrelevant.

Summary of assessment of permanent impairment

1. The Panel assesses Ms Moutrage’s permanent impairment as follows:

   (a)    current WPI: 10%;

   (b)    pre-existing WPI: 0%, and

   (c)    subsequent WPI: 0%.

FINDINGS

1. The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[105] and Insurance Australia Ltd v Marsh.[106]

   [105] Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45].

   [106] Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21], [64].

2. The Panel adopts the re-examination findings and conclusions of Medical Assessors Gibson and Oates based on their examination and specific findings pertaining to diagnosis, causation and assessment of permanent impairment.

3. The Panel determines that there was no evidence of direct injury to the bilateral shoulder joints, or any definitive evidence of a pelvic fracture caused by the motor accident on 19 March 2013.

4. The Panel determines that Ms Moutrage sustained a soft tissue injury to the cervical spine with referred symptoms into the bilateral shoulder girdles, a soft tissue injury to the lumbar spine and upper digestive tract disease caused by the motor accident on 19 March 2013.

5. The Panel determines that the injuries caused by the motor accident give rise to a WPI which is not greater than 10%, that is, 10%.

6. The Panel revokes the certificate issued by Medical Assessor Berry dated 13 March 2024.

CONCLUSION

1. The Panel’s determination is set out in the Certificate of Determination attached to this Statement of Reasons.