Insurance Australia Limited t/as NRMA Insurance v Ragni

[2025] NSWPICMP 436

DETERMINATION OF REVIEW PANEL

CITATION:

Insurance Australia Limited t/as NRMA Insurance v Ragni [2025] NSWPICMP 436

CLAIMANT:

Ragni

INSURER:

Insurance Australia Limited

REVIEW PANEL

MEMBER:

Jeremy Lum

MEDICAL ASSESSOR:

Margaret Gibson

MEDICAL ASSESSOR:

Adeline Hodgkinson

DATE OF DECISION:

19 June 2025

CATCHWORDS:

MOTOR ACCIDENTS –  Motor Accidents Injuries Act 2017; review of Medical Assessment Certificate (MAC); original Medical Assessor (MA) assessed 11% whole person impairment (WPI) comprising of 5% neck and 6% right shoulder; Review Panel re-examination found inconsistent shoulder movements; claimant’s explanation not considered plausible; WPI evaluated by analogy using clinical judgement and analogy under clauses 6.24 and 6.84 of the Motor Accident Guidelines; symptoms from subsequent motor accidents (two) likely caused a temporary exacerbation of symptoms but no additional impairment; Held – Review Panel found cervical spine 0% WPI, right shoulder 2% WPI and left shoulder 1% WPI; claimant sustained injuries that gave rise to 3% WPI; MAC revoked; new certificate issued.

DETERMINATIONS MADE:  

1.     The Review Panel revokes the certificate of Medical Assessor Tai-Tak Wan dated 22 September 2024 and issues a new certificate as follows:

The Review Panel certifies that:

2.     The following injuries caused by the motor accident give rise to a permanent impairment of 3% and is not greater than 10%:

·        cervical spine – soft tissue injury;

·        right shoulder – soft tissue injury;

·        left shoulder – soft tissue injury resolved, but ongoing pain referral from the neck;

·        left hip – soft tissue injury, and

·        bilateral knees – soft tissue injury.

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

·        head – injury to head, concussion.

4.     The following injuries referred for assessment have been assessed and determined to be not caused by the motor accident:

·        injury to both arms, radiculopathy, and

·        bilateral legs.

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

PERSONAL INJURY COMMISSION

MOTOR ACCIDENTS DIVISION

REVIEW OF MEDICAL ASSESSMENT

Matter number:

R-M22044/23

Claimant:

Matteo Ragni

Insurer:

NRMA

Review Panel:

Member Jeremy Lum

Medical Assessor Margaret Gibson

Medical Assessor Adeline Hodgkinson

Date of determination:

19 June 2025

CERTIFICATE OF DETERMINATION

Certificate issued under Division 7.5 of the Motor Accident Injuries Act 2017

1. The Review Panel revokes the certificate of Medical Assessor Tai-Tak Wan dated 22 September 2024 and issues a new certificate as follows:

The Review Panel certifies that:

1. The following injuries caused by the motor accident give rise to a permanent impairment of 3% and is not greater than 10%:

   ·        cervical spine – soft tissue injury;

   ·        right shoulder – soft tissue injury;

   ·        left shoulder – soft tissue injury resolved, but ongoing pain referral from the neck;

   ·        left hip – soft tissue injury, and

   ·        bilateral knees – soft tissue injury.

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

   ·        head – injury to head, concussion.

3. The following injuries referred for assessment have been assessed and determined to be not caused by the motor accident:

   ·        injury to both arms, radiculopathy, and

   ·        bilateral legs.

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

STATEMENT OF REASONS

BACKGROUND

1. Matteo Ragni (the claimant) was involved in a motor accident on 3 February 2021. He was the driver of a vehicle stopped at a traffic light when he was hit from behind by another vehicle. As a result of the motor accident, the claimant says he had pain in his shoulders, neck, left hip and legs. He also had headaches. He was taken to Bankstown Hospital and was discharged later on the same day.

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

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

   [1] See Division 4.3 of the Motor Accident Injuries Act 2017 (MAI Act).

4. On 22 September 2024, Medical Assessor Tai-Tak Wan assessed the claimant’s injuries as having a WPI of 11% which results in a WPI of greater than 10%.

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

6. On 8 January 2025, a delegate of the President (Mr Kenneth Ho) accepted the application for review and referred the matter to this Review Panel (the Panel) to conduct the Review proceedings.

MEDICAL ASSESSMENT UNDER REVIEW

1. The Medical Assessor listed the following injuries that were referred for medical assessment:

   ·        head – injury to head – concussion;

   ·        shoulder – injury to left shoulder – soft tissue damage;

   ·        cervical spine – injury to cervical spine – C6 and C7 and radiculopathy;

   ·        shoulder – injury to right shoulder – four intrasubstance tears, right subscapularis, bursitis and two labral tears with cysts;

   ·        lumbar spine – injury to lumbar spine – L4, L5 and radiculopathy;

   ·        thoracic spine – Injury to thoracic spine – soft tissue damage;

   ·        knee – injury to both knees – soft tissue damage;

   ·        bilateral legs – injury to both legs – radiculopathy;

   ·        hip – injury to left hip – partial thickness tear in the superior labrum, and

   ·        bilateral arms – injury to both arms – radiculopathy.

2. Medical Assessor Wan documented a history that the claimant was involved in three motor accidents. The first being the subject motor accident of 3 February 2021; the second a few months later on 4 May 2021 and a third on 17 May 2023. Medical Assessor Wan accepted the claimant’s history that the second accident was “a very minor one” and was settled with a $2,000 property damage claim only and did not contribute to the current WPI.

3. Of the above injuries referred for assessment, the Medical Assessor only found assessable impairment to the cervical spine (5%) and right shoulder (6%). This resulted in a total WPI of 11%.

SUBMISSIONS

Insurer’s submissions

1. The insurer relies on two sets of submissions – the review application submissions dated 3 February 2025 and the original reply submissions dated 19 December 2023.

2. First, the insurer submitted that the Medical Assessor failed to consider the following late documents lodged by the insurer and accepted by the President’s Delegate:

   ·        expert reports of Dr Robin Mitchell, occupational physician, dated 11 June 2024 and 9 August 2024, and

   ·        expert report of Dr Tej Dugal, radiologist, dated 22 August 2024.

3. The Panel notes that the above reports are contained in the insurer’s documentation bundle in the review proceedings.

4. Second, the insurer says there were inconsistent movements in the cervical spine and right shoulder that were not properly put the claimant or explained by the Medical Assessor. The insurer also referred to the Medical Assessor’s history of the claimant not mentioning the second motor accident to most specialists and the general practitioner (GP) records that seemed to indicate a worsening of pre-existing right shoulder symptoms following this accident.

5. Third, and due to the inconsistencies found by Medical Assessor Wan, the insurer submits that the Medical Assessor incorrectly found diagnostic related estimate (DRE) Category II for the cervical spine, made on the basis of what Medical Assessor Cameron purportedly found, which was non-verifiable radicular complaints. It is submitted that Medical Assessor Cameron in fact found no non-verifiable radicular complaints.

Insurer’s original reply submissions dated 19 December 2023

1. The insurer pointed to subsequent motor accidents on 4 May 2021 and 17 May 2023 [sic] with a compulsory third party (CTP) claim lodged with QBE insurance for the May 2023 accident.

2. The insurer says it is evident in the clinical notes of Norton Street Medical Centre that the claimant’s right shoulder became much worse following the subsequent accident on 10 May 2021. It is submitted that due to the severity of the reported symptoms, the GP referred the claimant for an MRI of the right shoulder.

3. The insurer refers to the M&A Investigations report dated 5 April 2021 which contains photographs of the damage to both vehicles involved in the subject accident. The insurer also refers to the Collision and Biomechanics report of Dr Andrew McIntosh dated 4 February 2022 who opined that the accident was a low-speed collision (change in velocity of approximately 8-13kmph) and was very unlikely to cause a right shoulder injury.

4. The insurer therefore submits that the right shoulder injury was not causally related to the subject motor accident of 3 February 2021.

5. In terms of permanent impairment, the insurer refers to the previous Review Panel clinical findings stating that this is “the most recent clinical examination findings”. The insurer says the claimant only has assessable impairment to his cervical spine, which was assessed by the Panel as 5% WPI.

Claimant’s submissions

1. The claimant relies on three sets of submissions – the review reply submissions dated 5 December 2024, further submissions dated 28 February 2025 and the original application submissions dated 1 December 2023.

2. The claimant relies on the clinical notes of his various treating doctors and radiology reports in support of his claim that his 3 February 2021 accident-related injuries result in a WPI of greater than 10%.

3. The claimant says it is not correct for the insurer to rely on the opinion of radiologist Dr Dugal who says the right shoulder problems were all long standing when there is no evidence of prior shoulder symptoms or impairment. It is submitted that but for the motor accident, the claimant would not have developed symptoms in his right shoulder and he would not have required medical attention to his right shoulder immediately after the subject accident.

4. The medical attention included the claimant attendance on his GP, Dr Tringali, on 13 February 2021 (about one week after the subject accident) complaining of headaches, neck pain and bilateral shoulder pain. The claimant then attended eight sessions with chiropractor, Mr James Gullotata, with treatment to the neck, right shoulder and upper back. The initial consultation note dated 16 April 2021 recorded “cervical spine pain, left radicular symptoms C6, right shoulder pain, thoracic spine pain”. The claimant also finds support in the Review Panel Certificate dated 16 November 2023 whereby the Panel accepted the claimant’s evidence that the second accident did not cause an increase in his right shoulder symptoms and instead the symptoms began after the subject accident.

5. In relation to the insurer’s review application, the claimant says the Medical Assessor was not required to comment on every document that was before him. In any event, it is submitted the reports of Dr Mitchell and Dr Dugal would not materially change the outcome of the assessment.

6. It is asserted that Dr Mitchell found a WPI of greater than 10% and the attribution of the cervical spine and right shoulder impairment as they relate to the first, second or third motor accidents has been addressed by the Medical Assessor.

7. In relation to the report of the radiologist, Dr Dugal, it is submitted that the Medical Assessor did review and comment on all the MRIs pertaining to the cervical spine (12 April 2021 and 19 July 2022) and right shoulder (17 June 2021 and 21 July 2022) which were specifically commented by Dr Dugal.

8. Second, the claimant says it is evident from the certificate reasons that the Medical Assessor did question the claimant about inconsistencies found during the examination. The Medical Assessor also questioned the claimant about the timing of the right shoulder symptoms, namely that the right shoulder symptoms were only recorded after the second accident.

9. And lastly, the claimant says the Medical Assessor correctly referred to the reasons of Medical Assessor Cameron when stating that his conclusion of non-verifiable radicular complaints in the cervical spine was consistent with what Medical Assessor Cameron found.

10. Hence, it is argued that there are no material errors in the medical assessment and the claimant’s impairment exceeds the 10% permanent impairment threshold.

ISSUES IN DISPUTE

1. On 21 January 2025, the Panel issued a direction to the parties seeking submissions on the matters that are in dispute, including causation of injury and permanent impairment.[2]

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

2. Both parties responded and helpfully narrowed the issues to be determined by the Panel as follows:

   ·        cervical spine – causation and degree of permanent impairment;

   ·        right shoulder – causation and degree of permanent impairment, and

   ·        left shoulder – degree of permanent impairment.

REVIEW OF THE EVIDENCE

General observations

1. The Panel also issued directions for the parties to provide indexed and paginated bundles of the information they relied upon. The Panel advised that unless documents are uploaded to the Review file, the Panel would not be able to read and consider those documents. The parties duly responded with the insurer and claimant lodging their bundles comprising of pages 1-1,059 and 1-352 respectively.

2. There was a substantial amount of documentation. Only the material relevant to the determination of the permanent impairment dispute and the issues in dispute are summarised below.

Clinical notes

Nuvo Health Medical Centre Leichardt (GP Dr Rino Tringali)

1. Certificate of capacity/fitness dated 2 March 2021 – completed by Dr Rino Tringali. Diagnosis of “shock, cervical, left shoulder, right shoulder intrascapular, lower back pain, left knee pain”.

2. Dr Rino Tringali (13 February 2021 – 3 May 2021) – seat belted driver hit from behind by another vehicle on 3 February 2021. Taken to the Emergency Department at Bankstown Hospital by ambulance. Shock, headache – frontotemporal area, cervical spine, L>R interscapular left arm pain, back pain, left hip pain, left leg pain, left knee pain. Multiple entries of acute left shoulder pain > right shoulder pain or Left shoulder pain+++, right shoulder pain.

   Pre-accident entries from September 2020 do not indicate any cervical spine or shoulder issues.

3. Dr Rino Tringali (10 May 2021 – June 2023) – seat belted driver involved in motor accident on 4 May 2021. Not knocked out. Cervical pain, right shoulder pain > left shoulder pain, interscapular pain, back pain, right leg pain, right knee pain. On 13 May 2021 entry detailed right shoulder pain+++ impingement syndrome, left shoulder pain. Subsequent entries of right shoulder pain, left shoulder pain only or left shoulder +++, right shoulder.

MyHealth Potts Point (GP Dr Rex Kwan)

1. Entry dated 27 July 2023 – notes 17 May 2023 motor accident. Claimant’s head hit window and had potential concussion. Royal North Shore Hospital (RNSH) A & E. Headache, cervical pain, left upper limb pain, left shoulder pain, right shoulder intrascapular pain, back pain radiating to right leg, right hip, right ankle and right foot pain.

Treating reports

1. A/Prof Simon Tan report dated 5 October 2021 – addressed to Dr Tringali. Claimant recalls reporting pain around both shoulders, neck and especially the interscapular area at the time. All these areas were normal prior to the accident of 3 February 2021. On examination pain in both shoulders with right more irritable than left.

2. Dr Jonathan Herald report dated 5 April 2022 – addressed to Dr Tringali. Recorded history of claimant having both hands on steering wheel when hit from behind in a rear end collision. Neck pain with pain radiating to both shoulders.

3. Dr Richard Parkinson report dated 28 September 2022 – addressed to Dr Tringali. Neck pain with pain radiating into right cervical paraspinal region and into the lateral shoulder and upper arm, triceps, extensor forearm, with paraesthesia over the entire palm. Labral tear in right shoulder. No symptoms before rear end motor accident.

Ambulance / hospital notes

1. Bankstown-Lidcombe Hospital – attendance 3 February 2021. motor vehicle accident low speed driver, nil airbags deployed, nil abrasions, nil obvious injuries. Neck stiffness/pain, collared. No head injury.

   Attendance 10 February 2021. Motor vehicle accident two weeks ago. Claimant presented with gradual worsening of back pain.

2. Ambulance report dated 17 May 2023 – claimant reports driving down road when struck by another vehicle at back left tyre of vehicle. Minor damage noted to back L of vehicle with nil intrusions. Claimant denied c-spine pain upon numerous palpations of neck, reporting L lateral neck pain only. C-spine collar place for precaution. Claimant amnesic to events, unknown if loss of consciousness post collision. Claimant poor historian. Post triage claimant c/o spasm like pain throughout back.

3. RNSH ED dated 17 May 2023 – low speed motor vehicle accident – rear ended left lateral car strike with minimal damage. Claimant states head flexed side to side and headstrike on right window. Self-extricated on scene. ? brief LOC – claimant states brief amnesic period but then later able to fully recount accident. Nil headache / visual changes/ “N&V” / seizure. Bilateral neck stiffness rightt > left and some midline pain. Midline lower back pain and pain on moving legs. Nil other injuries.

   Impression: low speed motor vehicle accident; nil acute injuries; pain and stiffness in C-spine and L-spine in context of previous injuries in both; left leg weakness reported not found clinically and suspected to be due to pain and stiffness in back.

Previous Commission determinations

1. Commission assessment of minor injury, certificate of Medical Assessor Ian Cameron dated 5 January 2023 – found all injuries from first accident to be soft tissue (minor) injuries. Examination showed inconsistent movement at both shoulders due to variable pain. Cervical spine diagnosed as non-verifiable radicular complaints. Shoulder labral tears not related to first accident and was asymptomatic. No traumatic brain injury.

2. Review Panel dated 16 November 2023 – threshold injury dispute. Subject accident 3 February 2021 [sic]. Claimant’s vehicle rear ended by the insured’s vehicle. Review Panel diagnosed accident-related injuries as:

   ·        soft tissue injury to cervical spine with radicular complaints affecting the left shoulder, left upper extremity to the left hand;

   ·        soft tissue injury to right shoulder with scan evidence of partial rotator cuff tear, and

   ·        soft tissue injury to lumbar spine with radiating radicular symptoms to the left lower extremity.

   Review Panel found second accident of 4 May 2021 did not cause significant aggravation to the above injuries. Review Panel accepted claimant’s evidence that the second accident did not cause an increase in his right shoulder symptoms and instead the symptoms began after the subject accident. Review Panel noted this was consistent with the history provided to Dr Parkinson, who records ongoing right shoulder complaints after the subject accident, but prior to the second motor accident.

   Review Panel Medical Assessor was given a history that the 17 May 2023 accident [sic] caused a temporary exacerbation of neck and low back symptoms but no additional aggravation, or permanent worsening caused by the subject accident.

   Review Panel also accepted claimant was gripping the steering wheel with both hands at the time of the subject accident and this could result in mechanical force being transmitted through the upper extremities, and the shoulders became symptomatic immediately after the accident.

   Review Panel determined that the right shoulder was a non-threshold injury because there was no history of a right shoulder injury or symptomatic problem before the subject accident, and the right shoulder was mentioned in the early contemporaneous evidence. The subject motor accident was considered the most likely cause of the partial rotator cuff tear of the right shoulder, demonstrated on MRI scan, thus satisfying the definitional of non-threshold injury.

Medico-legal reports

1. Dr Robin Mitchell, occupational physician, report dated 11 June 2024 – found radiculopathy and asymmetrical loss of range of motion in the cervical spine – 15% WPI. Deduction of 5% WPI made due to asymptomatic degenerative changes and a further 5% for the aggravation sustained in third motor accident in March 2023. Therefore 5% WPI related to subject accident. Right and left shoulders assessed by range of motion at 7% WPI and 1% WPI respectively. Total WPI = 13% WPI.

2. Dr Robin Mitchell, occupational physician, report dated 9 August 2024 – upon review of the clinical notes of Dr Tringali, who indicated that initial shoulder symptoms following the 3 February 2021 accident were more on the left than the right. However, after the second accident, the right shoulder symptoms were more severe than on the left side. Dr Mitchell opined that the second accident was more likely to have been more significant because of the right shoulder condition. Noted that MRI undertaken after the second motor vehicle accident and would not assist with determining causation. Dr Mitchell concluded that right shoulder impairment all due to the second accident.

3. Dr Tej Dugal, radiologist, report dated 22 August 2024 – was asked on whether the first accident was a direct cause of the pathology reported in the right shoulder. Dr Dugal was provided with the MRIs right shoulder dated 17 June 2021 and 21 July 2022. Dr Dugal opined that the cuff tendinopathy, subacromial/subdeltoid bursal impingement, and severe acromioclavicular (AC) joint arthropathy were all longstanding. Therefore, the findings on both MRIs do not suggest any changes related to trauma.

   Similar opinion given following consideration of the MRIs cervical spine dated 12 April 2021 and 19 July 2022. Namely, intervertebral disc degeneration which are progressive and degenerate with no basis of trauma – no relation to either the first or second accidents.

4. Dr Yajuvendra Bisht, psychiatrist, report dated 29 July 2024 – history noted, particularly with relevance to the minor nature of the second accident and the alleged psychological injuries from the third accident.

5. Dr Raymond Wallace, orthopaedic surgeon, report dated 16 May 2024 – opined that cervical spine condition was due to the first accident with a significant proportion being due to the second accident and the pre-existing degenerative condition. Noted claimant saw Dr Tringali on 3 May 2021, the day before the second accident where he was complaining of pain at cervical spine and left shoulder only. Lumbar spine injury due to first accident had resolved. Current lumbar spine symptoms are due to injuries from the third accident. Left knee symptoms have resolved. Whole person impairment impairment assessed as cervical spine 5% with 3% due to third accident.

Relevant radiology

1. CT cervical spine dated 3 February 2021 – no cervical spine fracture identified.

2. CT brain dated 3 February 2021 – no acute intracranial haemorrhage or skull fracture identified.

3. MRI spine dated 12 April 2021 – at C6/7 there is mild left foraminal narrowing with mild impingement upon the exiting C7 nerve.

4. MRI left shoulder dated 20 May 2021 – rotator cuff tendons and muscles appear normal. Minor subacromial bursitis. A small nonspecific glenohumeral effusion.

5. MRI right shoulder dated 18 June 2021 – 4 x 3mm intrasubstance tear right subscapularis. Mild right subacromial bursitis. Two labral tears with paralabral cysts.

6. MRI cervical spine dated 19 July 2022 – foraminal narrowing at C3/4, C5/6, C4/5, and C6/7. Endplate degenerative changes at C5/6 and C6/7 likely contributing to neck pain.

7. MRI right shoulder dated 21 July 2022 – subscapularis, supraspinatus and infraspinatus tendinosis. Intrasubstance tears are demonstrated. Tear of the anterior-inferior labrum.

8. MRI brain dated 4 October 2022 – no intracranial haemorrhage or space-occupying lesion.

9. Cervical spine dated 17 May 2023 (with comparison 3 February 2021) – T4 superior end plate mild irregularity due to a Schmorl’s node. Discogenic degenerative changes at C6/C7 where there is moderate loss of intervertebral disc heights associated with small end plate osteophytes. No cervical spine fracture.

10. CT brain dated 17 May 2023 (with comparison 3 February 2021) – no acute intracranial pathology demonstrated.

11. CT bilateral shoulders dated 18 August 2023 – clinical history: was driving and t-bone now has bilateral shoulder stretching pain right greater than left. Findings: normal alignment both right and left with no fracture.

12. MRI cervical spine dated 24 August 2023 – degenerative changes at multiple levels. Foraminal narrowing, mostly on left at C3/C4, on the right at C5/C6 and on the left at C6/C7. Arthropathy including moderate intervertebral joint degenerative change at C5/C6 and C6/C7.

13. Ultrasound shoulders dated 27 February 2024 – bursal thickening and bursal bunching in both shoulders. No ultrasound evidence of a rotator cuff tear.

14. Bone scan whole body dated 13 March 2024 – C6/7 discovertebral degenerative change.

15. MRI cervical spine dated 15 May 2024 – degenerative desiccation and narrowing of the C5/6 and C6/7 intervertebral discs. Mixed modic type I and II marrow signal changes at the end plates about these degenerate discs.

Other

1. M & A Investigations report dated 5 April 2021 – notes motor accident on 3 February 2021. Claimant had initial fogginess of mind due to his head contacting the steering wheel and shock which soon escalated to pain in his left shoulder and neck. Insured driver stated no fresh damage to the front of vehicle and impact was low and unalarming in nature.

2. Dr McIntosh, collisions and biomechanics report dated 4 February 2022 – notes motor accident on 3 February 2021. Concluded that the biomechanical forces of the accident were low and unlikely to have caused injury other than a whiplash associated disorder which only aggravated the claimant pre-existing cervical spine condition with symptoms of a closed period of short duration.

   Colour photographs – claimant’s vehicle blue Toyota Starlet. Post first accident damage to rear bumper with partial detachment on both sides. Deformity to boot lid.

PANEL’S RE-EXAMINATION REPORT

1. At the teleconference on 21 March 2025, the Panel determined that the claimant be re-examined. This occurred on 2 May 2025 and the report of Medical Assessor Gibson is as follows:

   “INTRODUCTION

   Mr Ragni attended as arranged. Mr Ragni said he had travelled to the assessment by train from Chatswood.

   He was accompanied to the assessment by an Italian interpreter (NAATI number 650). The insurer had instigated the review, alleging the assessor had failed to consider further documents, being a medicolegal assessment of Dr Robin Mitchell, occupational physician and a report from Dr Tej Dugal, radiologist. Furthermore, they alleged that the MAA Guidelines had not been applied with respect to inconsistency and the assessor had failed to give sufficient reasons.

   PAST MEDICAL HISTORY

   There had also been a motor vehicle accident in May 2021 when another car turned into the path of his car, but he said there were no physical injuries arising from this accident and no aggravation of existing injuries.

   He sustained a laceration to his left hand whilst working at a Manly cafe and this was sutured at Manly Hospital.

   There had been a history of endocarditis in 2006, depression in 2018, and a history of alcohol abuse.

   RELEVANT PERSONAL DETAILS

   Mr Ragni completed high school and then a university degree in Exercise Science at the Bologna University in Italy, and then a Master’s degree in Spain.

   He arrived in Australia in 2013. He said at that time he was not qualified to work in his occupation of Pilates instructor, so instead he had commenced work as a cook and pizza maker. He did the job on a full-time basis for 12 months. Then for the next two years he was only able to work 20 hours per week as part of his visa conditions.

   He had subsequently completed a Diploma of Fitness which qualified him to work as a Pilates instructor.

   He met an Australian woman and obtained a partner's visa in 2016.

   In 2017, he was working at a Pilates studio in the North Shore for up to 15 hours per week.

   He said he was also continuing the cooking and pizza making up job until 2018 when he married. He said his wife didn’t wish him to work at night, so he quit that job and was then only working as a Pilates instructor.

   By the time of the subject accident of 3 February 2021, he had been unable to work as a Pilates instructor due to the COVID epidemic. Instead, he had taken on a job cleaning buses with Interline in Ingleburn. He said he was working 20 to 30 hours per week.

   Following this accident, he dropped back to 5 to 10 hours per week. Then by July or August 2021, he quit that job because of right arm symptoms.

   He was in receipt of COVID payments between July and October 2021.

   He said he had tried various jobs but couldn’t manage these because of his accident-related injuries.

   In February 2022, he started work as a pizza shop manager. He was in the role for 4 months. Between February and April of 2022, he was working 20 hours per week and then by May and June of that year he was working full time, which he did for 8 weeks.

   However, by December 2022, he dropped back to 10 hours per week.

   From July 2022, he took on another job working in a cafe on Manly Beach where he was making salads 5 to 15 hours per week. He said that by December 2022, he stopped working in the pizza shop and continued his work at Manly Beach as they paid substantially more.

   He had also commenced work as a self-employed wine consultant and managerial consultant, and added that his father had a winery in Italy. He was providing advice on cooking and he was involved in wine events.

   By the time of the accident of 17 May 2023, he said he was working between 15 to 20 hours per week in the consulting role. He was also working in the Manly job up to 25 hours per week and he had been taken on as an employee in late 2022.

   He said about a month after that accident, he lost his job at Manly because he couldn’t cope with the physical demands and he was also having issues concentrating.

   He was then working 5 to 10 hours per week with consulting at one restaurant.

   PERSONAL AND SOCIAL HISTORY

   Mr Ragni lives in a rented room in Chatswood. He said his marriage ended in 2019 and they were divorced in January 2021. He said he maintains his own room in the house. He said there are seven people living there and they all share the chores. However, he has help because of his symptoms.

   He said that he orders food online or eats out. He doesn’t own a car as it was written off in the accident. He has not driven at all for six months. He added that now has to pay someone to deliver the wine, for his business.

   He visits friends. He said that he has not travelled overseas since 2018.

   HISTORY OF PRESENTING INJURY

   Mr Ragni had been a seat belted driver who had stopped at a traffic light on Milperra Rd when he was hit from behind by another vehicle. No airbags were installed in his car. He had been knocked out briefly.

   He said that at the time of the collision, he was holding the steering wheel tightly with both hands. He had noticed pain in both shoulders, the neck, left hip, and legs. However there were no signs of external injury.

   Ambulance and police were contacted and he was transferred to Bankstown Hospital where he was assessed before being discharged home later in the evening around 10pm.

   His car was left at the scene, but he later drove it back home, but the insurer had written if off for insurance purposes.

   HISTORY OF SYMPTOMS AND TREATMENT FOLLOWING THE MOTOR ACCIDENT

   Mr Ragni had re-presented to the Bankstown Hospital about 2 weeks later and was prescribed painkillers and discharged home.

   He had come under the care of his usual general practitioner, Dr Tringali. He referred for an MRI scan of the neck, shoulder, back, and the left hip.

   He was later referred to neurosurgeon, Dr Richard Parkinson. He had injections to his neck and back.

   He was referred to see a shoulder specialist at St Vincent’s Hospital, who referred him to Dr Burne, a sport physician.

   He said after the subject accident, he had chiropractic treatment for eight weeks. He had physiotherapy treatment following the accident but this had been stopped by the insurer between May 2023 and July 2024, although he was approved for a further eight sessions commencing July 2024.

   He started visiting an exercise physiologist in February-March 2024, this was funded by NRMA.

   CURRENT TREATMENT

   Mr Ragni takes Palexia up to three tablets a day and in fact taken that dose of medication today. He has been taking this for about 12 months. He uses pantoprazole one to two tablets a week. He has been using this for 12 months. He takes meloxicam on a daily basis. He has been using sertraline 150mg a day since November 2023. He said over the last six months he has been prescribed Lyrica. He said this is to reduce the risk of addiction to the narcotic agent. He said that his general practitioner had prescribed Ativan and this was ceased when he was commenced on sertraline. He said following the first subject accident, he had taken meloxicam and amitriptyline.

   CURRENT COMPLAINTS

   Mr Ragni said his whole left leg starts to feel numb and his left foot becomes cold if he sits for a long period. His left leg feels weak.

   There is constant neck pain rated 6 to 7 on 10 prior to the steroid injection. Following the injection this reduced to 5/10 for about two months, but it is now 6/10 severity. He said the pain spreads into his left arm. The pain is felt deep in the arm and spreads to his elbow. There are sometimes a ‘feeling of ants’ over the lateral aspect of left arm and dorsum of left forearm. And sometimes dysaesthesia involving the index and middle finger or sometimes the little and ring finger of the left hand.

   There is pain over the front of the right shoulder, and also with movement the pain is felt over the posterior aspect of the shoulder. He added that movement of shoulders and arms increase the severity of the neck pain. He finds his symptoms are more intense in cold weather. He said that although both shoulders hurt, the right shoulder is an isolated shoulder pain, but the left shoulder is a referred pain from his neck.

   He said his low back has improved with the physiotherapy treatment and he only tends to notice this now if he crouches or bends forward. However, there is still a ‘electric’ feeling in his right leg over right anterior thigh as far as knee and the whole leg feels numb at times.

   He said his left hip was injured in the accident, although there is no pain now. He said it got better twelve months ago with the physio treatment.

   He said there is still occasional thoracic discomfort. This followed the first accident.

   He said the knee injuries were a result of the second accident, but at no stage had there been a direct blow to either knee.

   When asked about any head injury, he said that he hit the steering wheel in the first motor accident and was after confused. He hit the left side of his head at the second motor vehicle accident. He remembered being in a panic state after that accident. When asked whether there had been any visible external injuries to his head, he said there hadn’t been.

   When he was asked why he had not mentioned the second accident to several assessors, he said he could not recall whether he had or had not mentioned it. He indicated similar regions were affected in both accidents, but he was improving prior to the 2023 accident.

   IMAGING

   Mr Ragni had brought no imaging studies with him to the assessment.

   CLINICAL EXAMINATION

   Mr Ragni was 182cm tall and weighed 85kg.He was right-handed.

   On examination of the neck, movements were variable, initially less when turning to the left. At outset, it had been observed as he was sitting to the right of the interpreter and frequently turning his head to address him, there was no real neck restriction, as was demonstrated on formal assessment. When this was raised with him, through the interpreter, he said that he could move his neck better when seated (so talking to the interpreter) and also his movements varied according to the level of pain at the time.

   He said he otherwise ‘doesn't know’ why there was difference. On reassessment, there was grimacing when movements were performed. Flexion and extension were half. Lateral flexion half normal bilaterally. Rotation two thirds normal bilaterally. There was no asymmetry, muscle spasm or guarding.

   On examination of the upper limbs, circumferential measurements were consistent with right hand dominance. The arms measuring 30cm (10 cm proximal to the olecranon process), forearm 29cm on the right and 28cm on the left (10 cm distal to the olecranon process). There was reduced sensory appreciation of the entire left upper limb in a global fashion. There was normal power and reflexes bilaterally.

   On examination of both shoulders, when moving the right shoulder, he said there was pain felt in the shoulder joint. When left shoulder movements were performed, he complained that the pain was spreading from his neck.

   Later in the assessment, when seated he was able to manage a greater range of motion bilaterally than had previously been demonstrated when standing. When asked about the inconsistency in shoulder movements, he said that he can move his shoulders better when seated and that shoulder movements improved if he exercised. Active movements on formal assessment were maximal as follows:

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	70°	115°
Extension	30°	50 °
Internal Rotation	70 °	50°
External Rotation	80 °	50°
Abduction	80 °	120°
Adduction	20 °	50 °

On examination of the lower back, there was mild tenderness over lower lumbar segments, flexion and extension half normal, lateral flexion two thirds normal bilaterally, rotation two thirds normal bilaterally. There was no muscle spasm, guarding or asymmetry. Straight leg raise 20 degrees bilaterally with complaints of pain in his neck while these movements were performed.

On examination of the lower limbs, circumferential measurements 41cm at the thighs, (10cm above the superior pole of patella). Both calves measured 40cm at maximal girth.

Lower limb reflexes were present and equal. Lower limb power was normal and symmetrical. There was reduced sensory appreciation over the entire right thigh and the left lower leg.

On examination of both knees, there was no crepitus and no instability was demonstrated. Active range of movements were as follows;

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

On examination of both hips, there was full normal range of movements bilaterally with pain reported with left hip abduction. Active movements were as follows:

Hip movements	Right	Left
Flexion	100 °	100 °
Internal Rotation	30 °	30 °
External Rotation	35 °	35 °
Abduction	40 °	40 °
Adduction	20 °	20 °”

RELEVANT LEGISLATION

Causation

1. Causation is dealt with at cls 6.5-6.7 of the Motor Accident Guidelines (the Guidelines).[3] An abridged form of the requirements is contained in cl 6.7 which states:

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

   [3] See s 7.21 of the MAI Act.

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

Assessment of permanent impairment

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

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

DETERMINATIONS

1. The review of the medical assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned.[4]

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

2. The Panel may confirm the certificate of assessment or revoke that certificate and issue a new certificate as to the matters concerned.[5]

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

3. The Panel refers to above re-examination report of Medical Assessor Gibson. The Panel reconvened on 16 May 2025 and discussed the re-examination report findings before collectively making the below determinations.

Diagnosis, causation and reasons

1. Mr Ragni is a 42-year-old man who was involved in the subject accident on 3 February 2021. The Panel concluded that he had sustained a soft tissue injury to his cervical spine with pain referral to the left shoulder, left arm and hand, soft tissue injury to right shoulder with radiological evidence of partial rotator cuff tear, and soft tissue injury to lumbar spine with symptom referral to the left leg.

2. The Panel accepted the subject accident was a cause of these injuries. This was because there was contemporaneous medical evidence, including hospital and treating doctor records.

3. In relation to the head injury, Mr Ragni's history and initial medical assessment following his presentation to Bankstown Hospital on 3 February 2021 were reviewed. Mr Ragni provided a detailed account of events before and after the impact. While emotionally affected by the accident, he demonstrated a clear recollection of the incident. He presented to Bankstown Emergency Department following the accident.

4. Bankstown Emergency department examination revealed:

   -       no bruising or haematoma of the head or face;

   -       no visible evidence of head injury;

   -       full orientation with GCS 15/15 at all times;

   -       normal gait;

   -       no balance concerns, and

   -       no concussive symptoms (specifically, no dizziness, headache, nausea, or confusion).

5. CT brain was performed and showed no abnormalities and follow-up presentations to his GP and other specialists regarding shoulder, neck, and back pain did not document any symptoms consistent with a head injury such as cognitive changes, or post-concussive symptoms.

6. The Panel concluded that whilst Mr Ragni reports impact between his head and the steering wheel, clinical evidence does not support the occurrence of a significant head injury or brain injury.

Permanent impairment

Cervical [Cervicothoracic] spine

1. There were complaints of pain or symptoms. Mr Ragni had said that sometimes the index and middle finger of the left hand or sometimes the little and ring finger of the left hand were affected. There were also sensory complaints over the left arm globally, left elbow and lateral aspect of left arm and dorsum of left forearm. The Panel considered the constellation of these upper limb symptoms, in that they vary over time and involve multiple dermatomes. Therefore, in the Panel’s opinion these symptoms did not meet the definition for non-verifiable radiculopathy, as per Table 6.7, of the Guidelines as they did not follow a specific nerve root. There was no radiculopathy or vertebral body compression or vertebral fracture. Therefore, the cervical spine injury would be assessed at DRE Impairment Category I, thus 0% permanent WPI.

Thoracic [Thoracolumbar] spine

1. There were complaints of pain or symptoms, but without vertebral body compression or vertebral fracture. There were no clinical findings as detailed in Table 6.7, of the Guidelines. Thus, in reference to the Guidelines the thoracic spine injury would be assessed at DRE Impairment Category I, thus 0% permanent WPI.

Lumbar [Lumbosacral] spine

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

Shoulders

1. When examined by the Panel, Mr Ragni’s shoulder movements were inconsistent. He was asked about the difference and could not provide a plausible explanation. The range of movement demonstrated on formal assessment was also not explicable considering the radiological findings, and noting the opinion of Dr Dugal. This inconsistency had also been observed by Medical Assessor Wan (22 September 2024) who had noted “The claimant showed significant inconsistency in the examination of the spine, upper and lower limbs, as mentioned above. That made using ROM method with my findings to determine the permanent impairment for limbs and spines unreliable.” And Medical Assessor Cameron (5 January 2023) noting “At both shoulders there was inconsistent movement that Mr Ragni said was due to variable pain.” Whilst the previous review panel had found no inconsistency, it was unclear how many repetitions had been done to confirm range of motion, as they were not required to assess WPI. When examining the various assessments over time, there has been significant variability in measured range of motion. Medical Assessor Cameron (5 January 2023) had right shoulder abduction 120 degrees, flexion 120 degrees, Review Panel (16 November 2023) had right shoulder abduction 90 degrees, flexion 90 degrees, Dr Wallace (16 May 2024) had right shoulder abduction 30 degrees, flexion 70 degrees, Dr Mitchell (11 June 2024) had right shoulder abduction 90 degrees, flexion 120 degrees, Medical Assessor Wan had right shoulder abduction 90 degrees, flexion 70 degrees, current panel had right shoulder abduction on formal assessment maximal at 80 degrees.

2. It is quite conceivable, that on certain days, Mr Ragni’s shoulder movements are better than other days, due to pain, however because of these inconsistencies goniometer measurements cannot be applied to assess WPI.

3. This is because clause 6.84 of the Guidelines states that:

   “Although range of motion (pages 77-78, AMA4 Guides) appears to be a suitable method for evaluating impairment, it can be subject to variation because of pain during motion at different times of examination and/or a possible lack of cooperation by the injured person being assessed. Range of motion is assessed as follows:

   (a) a goniometer should be used where clinically indicated

   (b) passive range of motion may form part of the clinical examination to ascertain clinical status of the joint, but impairment should only be calculated using active range of motion measurements

   (c) if the medical assessor is not satisfied that the results of a measurement are reliable, active range of motion should be measured with at least three consistent repetitions

   (d) if there is inconsistency in range of motion, then it should not be used as a valid parameter of impairment evaluation (see clause 6.40 of these Guidelines)

   (e) if range of motion measurements at examination cannot be used as a valid parameter of impairment evaluation, the medical assessor should then use discretion in considering what weight to give other evidence available to determine if an impairment is present.”

4. The Guidelines provide no specification as to how the shoulder impairment should be assessed in these circumstances, apart from advising the Medical Assessor use clinical judgement in determining an appropriate impairment rating. The Panel noted that Medical Assessor Wan had substituted Medical Assessor Cameron’s shoulder measurements, but m Assessor Cameron had also indicated his measurements were inconsistent.

5. Clause 6.24 of the Guidelines does permit assessment to be completed by analogy. In the Panel’s opinion, the subject accident-related right shoulder impairment may be considered analogous to mild intermittent acromioclavicular joint crepitation. This is because there was pain related variability. Referring to American Medical Association's Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4) Table 19 there was 10% joint impairment, thus 1.5% WPI, rounding this to the next closest integer, gives 2% WPI.

6. Nevertheless, analogy aside, the Panel also considered how this level of impairment sits with the circumstances of the subject accident and Mr Ragni’s history and presentation and having considered all available evidence, and in particular available shoulder imaging, examination findings with pain related restriction and variability in movements and other medical opinions on file.

7. On a clinical basis the panel concluded 2% WPI for the right shoulder is appropriate under the circumstances.

8. In relation to the left shoulder, he had reported there was restriction based upon pain referral from the neck. The Panel concluded on a clinical basis this would be more consistent with an assessment of 1% WPI. This is because the left shoulder impairment does not relate to a structural injury to the shoulder, but instead is related to a pain condition arising from the neck. This degree of impairment is also consistent with the evidence before the Panel with Medical Assessor Wan finding 0% WPI and Dr Mitchell finding 1% WPI, with both assessments occurring within a year of the Panel re-examination.

Right knee

1. There was no muscle atrophy [Chapter 3 AMA 4, Table 37, p 77]. No unilateral muscle weakness [Chapter 3 AMA 4, Tables 38 & 39, p 77]. Knee movements were assessed with reference to Table 41 [Chapter 3, AMA 4, p 78] resulting in 0% WPI. There was no patellofemoral crepitus [Table 62, Chapter 3, AMA 4, p 83]. There were no diagnosis-based estimates applicable [Chapter 3, AMA 4, Table 64, p 85]. Thus, 0% WPI.

Left hip and knee

1. There was no gait derangement [Chapter 3 AMA 4, Table 36, p 76]. No muscle atrophy [Chapter 3 AMA 4, Table 37, p 77]. No unilateral muscle weakness [Chapter 3 AMA 4, Tables 38 & 39, p 77]. Knee movements were assessed with reference to Table 41 [Chapter 3, AMA 4, p 78] resulting in 0% WPI. Hip movements were assessed with reference to Table 40 [Chapter 3, AMA 4, p 78] gave rise to 0% WPI

2. There were no diagnosis-based estimates applicable [Chapter 3, AMA 4, Table 64, p 85]. Thus, 0% WPI.

Subsequent impairment

1. The Panel noted the provisions for apportionment of current WPI due to subsequent injuries or conditions are contained in cl 6.34 of the Guidelines:

   “6.34 The evaluation of the 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.”

2. In addition to the subject motor accident, the claimant was involved in subsequent motor accidents on 4 May 2021 and 17 March 2023. The Panel considered whether there was objective evidence of any subsequent impairment and determined that there was none.

3. Relevant to this decision was the absence of any complaints to the claimant’s cervical spine and bilateral shoulders before the subject motor accident. Thus, the subject motor accident was the triggering event causing injury. A few months later, the claimant was involved in the second motor accident which caused symptoms in the neck and bilateral shoulders. Following this accident, the Panel noted entries from the records from Dr Tringali that indicated the right shoulder complaints were greater than the left, denoted by R>L or R***.

4. While the Panel noted that the increased right shoulder complaints recorded by Dr Tringali was contemporaneous with the timing of the second motor accident, the evidence did not suggest that there was any separate impairment resulting from injury or aggravation of the subject accident injuries.

5. The Panel accepted the claimant’s report of gripping tightly onto the steering wheel at the time of the subject accident which could have caused neck and referred symptoms into the shoulders from the transference of mechanical forces. Ambulance attended and the claimant was transported to hospital on the day of the subject motor accident. Whereas with the second accident, the claimant told the Panel he sustained no injury which was consistent with the histories given to Dr Bisht, Medical Assessor Wan and the previous Review Panel. Dr Mitchell, in her original opinion, also accepted that the claimant’s right shoulder impairment was all related to the subject accident. No ambulance or hospital attendance was required and, according to the previous Review Panel, no personal injury claim was made.

6. The Panel therefore concluded that while Dr Tringali’s notes recorded an apparent increase in right shoulder symptoms following the second accident, this was likely to be either a temporary exacerbation of the initial injury or consistent with its natural progression. Furthermore, there was no evidence for which the Panel could make any calculation of impairment.

7. In relation to the third accident, the evidence suggests this resulted in primarily lumbar spine, hip and lower limb complaints with a temporary exacerbation to the cervical spine symptoms with some neck stiffness recorded in the hospital notes.

8. The Panel therefore concluded that no apportionment of impairment was required for the subsequent motor accidents.

CONCLUSION

1. The claimant’s WPI as a result of the motor accident is 3% which is not greater than 10%. As the Panel’s finding on WPI is different, the Panel revokes the certificate of Medical Assessor Tai-Tak Wan dated 22 September 2024.

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