Insurance Australia Limited t/as NRMA Insurance v Taggart

Case •

[2024] NSWPICMP 646

•

12 September 2024

DETERMINATION OF REVIEW PANEL

CITATION:

Insurance Australia Limited t/as NRMA Insurance v Taggart [2024] NSWPICMP 646

CLAIMANT:

Charlene Taggart

INSURER:

NRMA

REVIEW PANEL

MEMBER:

Stephen Boyd-Boland

MEDICAL ASSESSOR:

Shane Moloney

MEDICAL ASSESSOR:

Drew Dixon

DATE OF DECISION:

12 September 2024

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical dispute about degree of permanent impairment; physical injuries to cervical spine, lumbar spine, left shoulder, right shoulder, left hand and right hand, left wrist and right wrist, left hip, left knee, left foot and right foot; Medical Assessor (MA) Herald found that the injuries to cervical spine, lumbar spine, left shoulder, right shoulder, left hand and right hand, left wrist and right wrist, left hip, left knee, left foot and right foot were caused by the motor accident; MA Herald found that the injuries to left arm secondary to cervical spine impairment, left knee, and stomach were not caused by the motor accident; MA Herald assessed whole person impairment (WPI) as follows: cervical spine 0%, lumbar spine 5%, both shoulders 16%, both hands and wrists 0%, both feet, 0%, left knee 0%, left hip 0% finding a 21% WPI; issue re-assessment of “both shoulders”; re-examination by Medical Review Panel (Panel); the Panel found that the injuries to cervical spine, lumbar spine, left shoulder, right shoulder, left foot and right foot were caused by the motor accident; the Panel found that the injuries to left hip and left knee were caused by the motor accident but had resolved; the Panel found that the injuries to left hand and right hand, left wrist and right wrist were not caused by the motor accident; the Panel assessed WPI as follows: cervical spine 0%, lumbar spine 0%, left shoulder 7%, right shoulder 8%, finding a total 14% WPI; Held – the injuries caused by the motor accident give rise to a permanent impairment of 14%; the Panel revoked the earlier certificate and issued a new certificate.

DETERMINATIONS MADE:  

CERTIFICATE OF DETERMINATION

1.     The following injuries caused by the motor accident give rise to a permanent impairment of 14% and is greater than 10%:

(a)   cervical spine, soft tissue injury to the cervical spine;

(b)   lumbar spine, soft tissue injury to lumbar spine with no signs of radiculopathy or non-verifiable radicular complaint in a dermatomal pattern;

(c)   left shoulder SLAP lesion and impingement syndrome;

(d)   right shoulder impingement syndrome;

(e)   left knee soft tissue injury to the left knee;

(f)    left hip trochanteric bursitis, and

(g)   left foot and right foot, intermittent paraesthesia to both feet.

STATEMENT OF REASONS

INTRODUCTION

  1. On 10 February 2021, Charlene Taggart (the claimant) sustained injury in a motor vehicle accident (the accident).

  2. Insurance Australia Ltd t/as NRMA Insurance (the insurer) is the relevant insurer.

  3. The claimant lodged an Application for Personal Injury Benefits and also an application for Damages under Common Law arising out of the motor accident with the insurer.

  4. In this context claims and entitlements to benefits and compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).

  5. The legislation provides a scheme of statutory benefits (under part 3) and lump sum damages (under Part 4).

  6. Statutory benefits include weekly benefits for lost earnings and treatment and care needs for accident-related injuries.

  7. Claims for damages include damages for economic losses and possibly non-economic loss resulting from accident-related injuries.

  8. While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the MAI Act, there are some disentitling provisions and limits to the amount and extent of benefits available.

  9. Damages for non-economic loss are limited and restricted by the provisions in Part 4, Division 4.3 of the MAI Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 4.13[2] and entitlement to those damages is restricted by s 4.11 to persons who have a greater than 10% whole person impairment (WPI) as a result of the injuries sustained in the accident.

  10. If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for medical assessment.

  11. Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be medical assessment matters, including (a) the degree of permanent impairment of the injured person that has resulted from the injury caused by the motor accident (including whether the degree of permanent impairment is greater than a particular percentage).

  12. A medical assessment was conducted by Medical Assessor Jonathan Herald who subsequently provided a certificate dated 21 June 2023.

The Medical Assessor’s certificate

  1. The following injuries were referred by the Personal Injury Commission (Commission) to Medical Assessor Jonathan Herald for assessment:

    (a)    cervical spine;

    (b)    lumbar spine;

    (c)    left shoulder;

    (d)    right shoulder;

    (e)    left hand and right hand;

    (f)    left wrist and right wrist;

    (g)    left hip;

    (h)    left knee, and

    (i)    left foot and right foot;

  2. Medical Assessor Jonathan Herald found that the following injuries were caused by the motor accident:

    (a)    cervical spine being soft tissue injury;

    (b)    lumbar spine being soft tissue injury with radiculopathic symptoms;

    (c)    left shoulder being SLAP lesion and impingement syndrome;

    (d)    right shoulder being impingement syndrome;

    (e)    left hand and right hand being bilateral hand and wrist carpal tunnel syndrome;

    (f)    left wrist and right wrist being bilateral hand and wrist carpal tunnel syndrome;

    (g)    left hip being trochanteric bursitis;

    (h)    left knee being soft tissue injury, and

    (i)    left foot and right foot being radiculopathic symptoms (pins and needles sensation) to both feet.

  3. Medical Assessor Jonathan Herald determined the degree of permanent impairment as follows:

Body part or System

Permanent

Yes/No

Current %WPI

%WPI from pre-existing or subsequent causes

%WPI due to motor accident

1

Cervical spine

Yes

0%

0%

0%

2

Lumbar spine

Yes

5%

0%

5%

3

Both Shoulders

Yes

16%

0%

16%

4

Both hands and wrists carpal tunnel syndrome

Yes

0%

0%

0%

5

Left hip trochanteric bursitis

Yes

0%

0%

0%

6

Both feet

Yes

0%

0%

0%

7

Left Knee

Yes

0%

0%

0%

The review

  1. The insurer lodged an application for review of the assessment of Medical Assessor Jonathan Herald.

  2. On 17 August 2023 the delegate of the President determined there was reasonable cause to suspect a material error in that assessment.

  3. The President of the Commission then convened a panel to conduct the review. 

  4. The review is by way of a new assessment of all matters with which the medical assessment is concerned.

  5. 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 decision maker. A ‘new decisionmaker’ 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 provisions apply. The new review provisions provide at s 7.26(5) of the MAI Act that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.

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

22.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 the proceedings and may determine the proceeding solely based on the written application.

  1. The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned – see s 7.26(6) of the MAI Act.

  2. Whilst the review is a new assessment it occurs in the context of the initial decision and the determination there was reasonable cause to suspect a material error in that assessment.

  3. Both the claimant and the insurer are legal represented and had the opportunity to provide submissions and to identify and narrow the issues in dispute so as to meet the objectives of the MIA Act.

  4. The following injuries were referred by the Commission for assessment:

    (a)    cervical spine;

    (b)    lumbar spine;

    (c)    left shoulder;

    (d)    right shoulder;

    (e)    left hand and right hand;

    (f)    left wrist and right wrist;

    (g)    left hip;

    (h)    left knee, and

    (i)    left foot and right foot.

Material before the Review Panel

  1. Pursuant to s 7.26(6A) of the MAI Act the Review Panel agreed that Medical Assessor Shane Moloney would conduct the medical re-examination of the claimant for the purposes of the review.

  2. The parties were asked to provide submissions for the purpose of the review addressing various specific issues.

  3. The parties provided documentation to the Review Panel.

  4. The insurer provided a bundle of documents “TAGGART - Insurer's Review Bundle” being 722 pages.

  5. The claimant provided a bundle of documents “COMPLETE BUNDLE OF DOCUMENTS FOR REVIEW PANEL; 19.2.24 (Dr Herald review) (1)” being 277 pages.

  6. The insurer relied upon submissions described as “Insurer’s Submissions in Support of Application for Review of Whole Person Impairment Certificate of Medical Assessor Johnathan Herald dated 21 June 2023” and “Insurer’s Submissions in Reply to Application for Assessment of a Whole Person Impairment Dispute”.

  7. The claimant relied upon submissions dated 19 February 2024.

  8. The Review Panel met on a number of occasions, the claimant was examined by Medical Assessor Shane Moloney on 29 November 2023, the parties were then asked to provide various further documents which were considered by the Review Panel.

  9. In Rahman v Insurance Australia Ltd t/as NRMA Insurance [2022] NSWSC 1079 Justice Basten referred to Court of Appeal comments on the volume of material which is routinely provided to Medical Assessors. Justice Basten confirmed that in reasons accompanying a certificate there was not a need to refer to all the documentation to which he or she has had access, but rather to be discriminating as to that material.

  10. The Review Panel does not intend to refer to each and every document in the substantial volume of material before it, but only those documents considered significant to the issues in dispute. 

The insurer’s submissions

  1. The insurer lodged an application for review of the assessment of Medical Assessor Jonathan Herald.

  2. The insurer maintained that there was reasonable cause to suspect the assessment is incorrect in a material respect. The insurer’s contentions included an absence of a clear path of reasoning and that the reasons were inadequate.

  3. The insurer is critical of the absence of a review of the medical material.

  4. The insurer is critical of the consideration of causation issues and the diagnosis provided.

  5. The particular focus of the insurer’s submissions was on the causation of a number of injuries and on the calculation WPI in respect of the lumbar spine and shoulders.

The claimant’s submissions

  1. The claimant maintained that all of the injuries considered by to Medical Assessor Jonathan Herald were caused by the motor accident. Reference was also included to an injury to the chest. This was not before Medical Assessor Jonathan Herald and not before the Review Panel.

  2. The claimant maintained that the degree of permanent impairment determined by Medical Assessor Jonathan Herald was correct.

Re-examination of the claimant

  1. Charlene Taggart attended the medical suites at the Commission’s rooms on 29 November 2023 was examined by Medical Shane Moloney.

Pre-accident history

  1. Charlene Taggart states that she was in good health prior to the accident and had no past injuries to those assessed today. She had been working in sales for Telstra full-time for the past 10 years prior to the accident. She had been married but was now separated from her husband and has four sons who are now adults.

History of motor accident

  1. Charlene Taggart was the driver of her car on 10 February 2021. Another vehicle failed to give way to her causing an impact on the front of her car. She was wearing a seatbelt at the time and airbags were deployed. At the time of the accident, she had a 12-year-old nephew in the front seat and 10-year-old niece in the back seat. She feels there was a brief loss of consciousness, and the airbag impacted her face. There was bruising to the left breast region, and she had pain in the shoulders and neck. The ambulance attended the scene and transported her to Blacktown Hospital. Her car was written off due to the accident.

Subsequent history and treatment

  1. Charlene Taggart consulted her general practitioner (GP) who referred her for physiotherapy and X-rays. Due to pain in the left hip, a cortisone injection was organised to the left trochanteric bursa which gave some benefit. There was also initial pain in the left knee. Due to persistent pain in the left shoulder an MRI was organised, and she was referred to Dr Kuo, an orthopaedic surgeon who subsequently did an arthroscopic operation on the left shoulder with labral repair and subacromial decompression on 27 October 2021. There was minimal benefit from this procedure, and this was treated with follow-up cortisone injections and a diagnosis of a frozen left shoulder was made by the surgeon. He suggested manipulation under the anaesthetic, but Charlene Taggart is too anxious to have this procedure. The right shoulder has also been painful, and this has been treated with cortisone injections with a brief benefit.

  2. There has been persistent neck pain with the development of pain in both wrists with a possible diagnosis of a carpal tunnel syndrome. Nerve conduction studies also reported possible carpal tunnel syndrome and cortisone injections have been undertaken in both wrists with no benefit. She states that her hands claw up. The orthopaedic surgeon suggested surgery. Charlene Taggart was also referred to a pain specialist, Dr Deshpande who has modified her medications and consulted her every three months.

  3. There have been no further injuries or conditions sustained since the motor accident.

Current symptoms

  1. There is persistent central low back pain which radiates into the left buttock and posterior and anterior left thigh to the level of the left knee but not below this level. She gets a swelling of the right foot which makes it difficult to put a shoe on. She gets intermittent pins and needles in the feet with tingling in the toes.

  2. There is a constant feeling of numbness in all the fingers including the thumbs. The shoulders are sore and in particular there is scapula pain bilaterally. There is neck pain which radiates up into the occipital region which is intermittent and is associated with frequent migraines on a daily basis.

  3. Charlene Taggart drives short distances and can walk but is unsteady walking upstairs. She undertakes a minimum of house work and gets very stressed in a car.

Current treatment

  1. Present medication is tramadol 150mg One-A-Day, cannabis THC oil at night, Endep one at night, Norflex One-A-Day and Arcoxia. For diabetes, she takes metformin one twice a day and Ozempic an injection weekly. Charlene Taggart consults her psychologist every two weeks and her GP when needed. She has been booked into see her orthopaedic surgeon Dr  Kuo in December to assess the shoulders.

Clinical examination

  1. Charlene Taggart walked into the rooms with a normal gait and sat comfortably during the interview. The height was measured at 166cm and weight 89.8kg.

Cervical spine

  1. On testing range of movement, flexion/extension was 50% of expected range, side bending was 60% of expected range and rotation 70% of expected range bilaterally with no asymmetry. On palpation there was no guarding or spasm noted in the cervical musculature.

  2. On neurological examination of the upper limbs, reflexes were weak but equal bilaterally with normal power and a global decrease in sensation in the left arm which was not in a dermatomal pattern. No muscle wasting was apparent with the circumference of the upper arms 31cm bilaterally (10cm above the olecranon process) and in the upper forearm 26cm bilaterally.

Wrists

  1. On testing range of movement there was a full range of both wrists with tenderness over the carpal tunnel regions and positive Tinel’s test bilaterally.

Lumbar spine

  1. Charlene Taggart had a normal gait and was able to stand on her toes but not on her heels. On testing range of movement, flexion/extension was 70% of expected range and side bending was 50% of expected range bilaterally with no asymmetry. On palpation there was tenderness over the lower lumbar spine, but no guarding or spasm was noted in the lumbar musculature. Straight leg raise on lying was 40° bilaterally but when seated was 90° with negative sciatic nerve root tension signs.

  2. On neurological examination of the lower limbs, reflexes were weak but equal bilaterally with normal power and there was a global decrease in sensation in the left leg which was not dermatomal in distribution. No muscle wasting was apparent with the circumference of the lower thighs 46cm bilaterally (10cm above the superior patella pole) and at the maximum circumference of the calves 37cm bilaterally.

Shoulders

  1. On inspection of the shoulders no muscle wasting was apparent and on passive movement no crepitus was detected. On passive movement, abduction was possible to 100° with restriction due to pain in the shoulder joint region. There was no referral from the cervical spine. Active movement was measured using a goniometer and repeated.

Shoulder Movements

Active ROM Measured

RIGHT

Active ROM Measured

LEFT

Flexion

90°= 6% UEI

90°= 6% UEI

Extension

20°= 2% UEI

30°= 1% UEI

Adduction

20°= 1% UEI

20°= 1% UEI

Abduction

80°= 5% UEI

90°= 4% UEI

Internal Rotation

80°= 0% UEI

80°= 0% UEI

External Rotation

70°= 0% UEI

80°= 0% UEI

Hips

  1. On palpation there was tenderness over the gluteal muscles on the left and sacroiliac joints more tender on the left than right. There was no obvious trochanteric bursitis at the time of my examination.

  2. On testing range of movement as a full range of movement of both hips equally.

Knees

  1. On inspection of the knees, no effusions were noted and on passive movement no crepitus was detected. No ligament laxity was noted in either knee. Flexion of the right knee was 120° and 110° on the left with 0° extension.

Comments

Cervical spine – soft tissue injury

  1. The treating GP reported neck pain within three weeks of the accident which was investigated with an X-ray initially. There has been a soft tissue injury to the cervical spine which is classified as Diagnosis Related Estimates 1 which is 0% WPI.

Lumbar spine

  1. The treating GP also recorded low back pain within three weeks of the accident, and this is classified as a soft tissue injury with no signs of radiculopathy or non-verifiable radicular complaint in a dermatomal pattern. This is also a classification DRE 1 which is 0% WPI.

Left hip – trochanteric bursitis

  1. A diagnosis of trochanteric bursitis was made in an ultrasound two months after the accident which has now resolved with continual slight tenderness in the gluteal muscles. There was no evidence of trochanteric bursitis at the time of my examination.

Left knee – soft tissue injury

  1. There may have been some initial pain in the left knee region which has now resolved.

Wrists – carpal tunnel syndrome

  1. The Review Panel does not consider that the motor vehicle accident caused the development of carpal tunnel syndrome. This diagnosis was made well after the accident and although present is not related to the accident.

Left shoulder – slap lesion and impingement

  1. There was a report from the claimant of immediate pain in the left shoulder region with an
    X-ray taken five days after the accident and cortisone injections one month after the accident. The Review Panel has determined that this injury was caused by the motor accident which resulted in a surgical repair in October 2021.

  2. Impairment of the shoulders is determined by range of movement. At the time of the examination by the Review Panel, there was consistent movement on repeat testing which was nearly identical to the range of movement recorded by Medical Assessor Herald in May 2023 and by Dr Woo in June 2022.

  3. The left shoulder has impairment of 12% upper extremity impairment (UEI) using the same figures which converts to 7% WPI.

Right shoulder – impingement syndrome

  1. The treating GP recorded pain in the right shoulder region immediately after the accident and organised an ultrasound guided cortisone injection five weeks after the accident. The Review Panel has determined that this injury was also caused by the motor accident and has been treated with cortisone injections.

  2. Impairment of the shoulders is determined by range of movement. At the time of the examination by the Review Panel, there was consistent movement on repeat testing which was nearly identical to the range of movement recorded by Medical Assessor Herald in May 2023 and by Dr Woo in June 2022.

  3. The right shoulder has an impairment of 14% UEI using figures 38, 4144 of American Medical Association 4th edition which converts to 8% WPI using Table 3.

Conclusion

  1. The left shoulder has impairment of 12% UEI using the same figures which converts to 7% WPI.

  2. The right shoulder has an impairment of 14% UEI using figures 38, 4144 of AMA 4th edition which converts to 8% WPI using Table 3.

  3. Whilst the mathematical addition of these totals 15%, using the AMA 4th edition this gives a total of 14% WPI for the shoulder impairments.

Issues for the Review Panel

  1. Schedule 2, cl 2(a) of the MAI Act, involves a determination of two issues:

    (a)    whether the injury (was) caused by the motor accident, and

    (b)    the degree of permanent impairment of the injured person that has resulted from the injury.

  2. We note that it is arguable that as the injury to both feet is attributable to the back injury that potentially raising an issue in relation to the causation of the back injury also raises an issue of causation in relation to the injury to both feet.

  3. It was necessary for the Review Panel to determine;

    (a)    causation – whether the following injuries were caused by the motor accident:

    (i)cervical spine;

    (ii)lumbar spine;

    (iii)left shoulder;

    (iv)right shoulder;

    (v)left hand and right hand;

    (vi)left wrist and right wrist;

    (vii)left hip;

    (viii)left knee, and

    (ix)left foot and right foot.

    (b)    Permanent Impairment – the degree of permanent impairment that has resulted from the following injuries:

    (i)cervical spine;

    (ii)lumbar spine;

    (iii)left shoulder;

    (iv)right shoulder;

    (v)left hand and right hand;

    (vi)left wrist and right wrist;

    (vii)left hip;

    (viii)left knee, and

    (ix)left foot and right foot.

Review of the evidence

  1. The certificate of Medical Assessor Jonathan Herald included material under the headings of “Pre-accident medical history and relevant personal details” and “History of the motor accident” neither party raised any issues in relation to the material described.

  2. Medical Assessor Shane Moloney has also set out material under the headings of “Pre-accident history” and “History of the motor accident”.

  3. Neither party raised any significant factual issue in relation to “Pre-accident history” and “History of the motor accident”, except to the extent that the insurer did take issue with exactly what injuries were reported at the time of the accident.

  4. Medical Assessor Jonathan Herald reported “She threw her left hand out to protect her niece. She then pulled over to the left-hand side, having pain in her shoulders and left hand, her neck, her back, and her left hip”.

  5. The insurer did take issue with exactly what injuries were reported at the time of the accident detail of the post-accident reports of symptoms and medical treatment in the context of causation.

  6. This was not so much a factual dispute, but more a clarification of the precise timing of reports of pain and the relevance of these in terms of causation.

  7. We have addressed each of those issues in relation to the causation for each specific injury.

  8. In relation to permanent impairment, it was not apparent that there was any factual dispute.

  9. There was clearly a dispute about the determination of permanent impairment, this was focused on the assessment and/or interpretation of that factual position.

Causation

  1. The Motor Accident Guidelines set out the relevant considerations in relation to causation in Part 6 specifically clauses 6.5, 6.6 and 6.7.

  2. In Briggs v IAG Limited trading as NRMA Insurance [2022] NSWSC 372 (Briggs) his Honour Justice Wright stated at [35]:

    “The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries… “

  3. In Briggs Wright J confirmed that the relevant legal test in relation to causation does not require scientific certainty. His Honour stated at [70]-[72]:

    “70.   This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce [2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):

    ‘138 Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:

    “An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference”.’

    The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWLR 238 as follows, at 242:

    ‘.. it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability, and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.

    Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].”

  4. In Briggs Wright J confirmed that the relevant legal test in relation to causation does not require scientific certainty. It is not to be determined on the basis of scientific certainty, but on the balance of probabilities. A finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible.

  5. The question to be considered is whether the injury was caused or materially contributed to by the accident. It is also noted the accident does not have to be the sole cause as long as it is a contributing cause which is more than negligible.

Whether the cervical spine injury (was) caused by the motor accident?

  1. In the certificate dated 21 June 2023 Medical Assessor Jonathan Herald concluded that the cervical spine injury was caused by the motor accident.

  2. Medical Assessor Jonathan Herald diagnosed the injury as soft tissue injury.

  3. The claimant did not dispute the conclusion that the claimant sustained an injury to the cervical spine, specifically soft tissue injury, as a result of the motor accident.

  4. The Review Panel considered the dynamics of the accident, the diagnosis of the injury, the reported symptoms of cervical spine pain following the accident, the ongoing complaints in relation to the cervical spine, the treatment received and the consideration of these issues by the other medical professionals.

  5. The insurer did not dispute the conclusion that the claimant sustained an injury to the cervical spine, specifically soft tissue injury, as a result of the motor accident.

  6. The insurer accepted that the clinical records of Dr Lim include a report of the onset of posterior neck pain in the hours following the motor vehicle accident. The records confirm that subsequent X-rays performed on 12 February 2021 at Blacktown Hospital following the accident did not reveal any fracture or dislocation.

  7. We accepted that the claimant experienced posterior neck pain in the hours following the motor vehicle accident.

  8. The treating GP reported neck pain within three weeks of the accident which was investigated with an X-ray initially.

  9. We accepted that the neck symptoms developed such that within three weeks of the accident the claimant consulted the GP, and an X-ray was arranged.

  10. Medical Assessor Shane Moloney diagnosed a cervical spine soft tissue injury.

  11. Medical Assessor Shane Moloney made a medical determination that the motor accident could have caused or contributed to the cervical spine injury.

  12. Both the Medical Assessors on the Review Panel made a medical determination that the motor accident could have caused or contributed to the cervical spine injury.

  13. We accepted the medical determinations of the Medical Assessors that the motor accident could have caused or contributed to the cervical spine injury.

  14. In the context of the medical determination that the motor accident could have caused or contributed to the cervical spine injury we considered whether the motor accident did cause or contribute to the cervical spine injury.

  15. Both the Medical Assessors on the Panel did not consider that the short delay in reporting pain to the GP was clinically significant in these circumstances.

  16. Both the Medical Assessors on the Panel considered that the nature of the injury, cervical spine soft tissue injury, the reported symptoms, the documented symptoms and treatment received were consistent with the injury having been caused by the accident.

  17. The Review Panel was of the view that the evidence in relation to the circumstances of the accident and the reported symptoms of cervical spine pain, the documented symptoms and treatment received were consistent with the cervical spine injury having been caused or materially contributed to by the accident.

  18. We accepted, on the balance of probabilities, that the test for legal causation, in relation to the motor accident and the cervical spine injury was satisfied.

  19. We accepted, on the balance of probabilities, that the motor accident did cause the cervical spine injury.

Whether the lumbar spine injury (was) caused by the motor accident?

  1. In the certificate dated 21 June 2023 Medical Assessor Jonathan Herald concluded that the lumbar spine injury was caused by the motor accident.

  2. Medical Assessor Jonathan Herald diagnosed the injury as soft tissue injury with radiculopathic symptoms.

  3. The claimant did not seek to dispute the conclusion that the claimant sustained an injury to the lumbar spine, specifically soft tissue injury with radiculopathic symptoms, as a result of the motor accident.

  4. The insurer disputed the conclusion that the claimant sustained an injury to the lumbar spine, specifically soft tissue injury with radiculopathic symptoms, as a result of the motor accident.

  5. The insurer noted that the clinical records of Dr Lim of Astley Medical Centre include an entry of 11 February 2021 that does not include a specific report of back pain.

  6. This was not disputed by the claimant, in their account of the records.

  7. The insurer noted that it was not until 2 March 2021 that the claimant reported back pain. There was said to be an ache in the lower back as well as the upper back. There was no reported numbness/weakness/paraesthesia in the upper or lower limbs. The range of movement of the back was said to be slightly reduced at that time.

  8. The insurer referred to the report of Dr Machart dated 28 April 2023. Dr Machart at page 2 notes that following the accident she saw her GP who recorded injuries including injury to the “lower back”. The current symptoms recorded by Dr Machart included pain in the lumbar spine.

  9. Dr Machart did not find that the injury to the lower back was caused by the accident. Dr Machart did not make any specific reference to the back pain or set out the basis for the conclusion that the injury to the lower back was not caused by the accident. Dr Machart commented that there was no contemporaneous evidence of injury to other parts of the body, presumably including the back.

  10. The insurer submits that given the temporal delay in the onset of reports of upper and lower back pain that any complaints experienced by the claimant in those areas were not causally related.

  11. We accepted that the clinical records of Dr Lim of 11 February 2021 do not include a specific report of back pain.

  12. In his report dated 28 April 2023 Dr Machart noted “19/02/2021, Self-Assessment of Injuries Stemming from MVA, Ms Taggart. Injury to elbows, shoulders, neck, back, breasts, stomach, headaches and stress.”

  13. The insurer accepts that by 2 March 2021 there was recorded low back pain.

  14. Following the accident on 10 February 2021 the claimant sought medical treatment and reported various symptoms. Aside from the absence of reported symptoms for a short period following the accident, all of the surrounding circumstances were consistent with the back injury having been caused by the accident.

  15. Both the Medical Assessors on the Review Panel did not consider that the absence of a report of back pain in the period between the accident and 19 February 2021 (or 2 March 2021) was of particular clinical significance in the circumstances because this history was consistent with the injury having been caused by the accident.

  16. We reviewed the contemporaneous documents in relation to the description and circumstances of the motor accident and its immediate aftermath, including the claimant’s account of the accident and the claimant’s account of the injuries.

  17. We reviewed the various medical opinions provided.

  18. Medical Assessor Shane Moloney made a medical determination that the motor accident could have caused or contributed to the lumbar spine injury.

  19. We accepted the medical determination of Medical Assessor Shane Moloney that the motor accident could have caused or contributed to the lumbar spine injury.

  20. Medical Assessor Shane Moloney diagnosed a lumbar spine soft tissue injury.

  21. Both the Medical Assessors on the Review Panel made a medical determination that the motor accident could have caused or contributed to the lumbar spine injury.

  22. We accepted, on the balance of probabilities, that the motor accident could have caused or contributed to the lumbar spine injury.

  23. Both the Medical Assessors on the Panel considered that the nature of the injury, lumbar spine soft tissue injury, the reported symptoms, the documented symptoms and treatment received were consistent with the injury having been caused by the accident.

  24. Having considered the dynamics of the accident, the reported symptoms of lumbar spine pain following the accident, the ongoing complaints in relation to the lumbar spine and the consideration of these issues by the other medical professional we accepted that the lumbar spine injury was caused or materially contributed to by the accident.

  25. We accepted, on the balance of probabilities, that the test for legal causation, in relation to the motor accident and the lumbar spine injury was satisfied.

  26. We accepted, on the balance of probabilities, that the motor accident did cause the lumbar spine injury.

Whether the left shoulder (was) caused by the motor accident?

  1. In the certificate dated 21 June 2023 Medical Assessor Jonathan Herald concluded that the left shoulder injury was caused by the motor accident.

  2. Medical Assessor Jonathan Herald diagnosed the injury as SLAP lesion and impingement syndrome.

  3. The claimant did not dispute the conclusion that the claimant sustained an injury to the left shoulder, specifically a SLAP lesion and impingement syndrome as a result of the motor accident.

  4. The insurer did not assert that the claimant had any left shoulder injury prior to the accident. The insurer did not refer to any evidence to the effect that the claimant had sustained a left shoulder injury or had complaints in relation to the left shoulder prior to the accident.

  5. The Insurer notes that the clinical records of Dr Lim of Astley Medical Centre include an entry of 11 February 2021 and that these records do not include a specific report of left shoulder pain.

  6. The Insurer notes that an entry of 15 February 2021 includes a specific report of left shoulder pain.

  7. This is not disputed by the claimant, in their description of the records.

  8. The insurer notes the X-ray report of the left shoulder performed 15 February 2021 revealed the glenohumeral and AC joints to be normal. The subacromial space was preserved. There was no rotator cuff calcification and no fracture or dislocation.

  9. The insurer submitted that ultrasounds of both shoulders performed 5 March 2021 revealed no sonographic evidence of a rotator cuff tear or tendinosis on either side although there were sonographic features of significant bursitis.

  10. The insurer notes MRI of the shoulders performed 16 April 2021 revealed tendinosis anterior rotator cuff interval with tendinosis at the subscapularis tendon in the left shoulder and minimal increased fluid within the joints and subacromial bursa on the left. In the right shoulder there was tendinosis predominately at the anterior rotator cuff interval with subtle bursal distension.

  11. Whilst the claimant did not report left shoulder symptoms immediately, by the time X-rays were arranged, it was the left shoulder that was X-rayed not the right.

  12. This suggests that by 15 February 2021 the left shoulder issues appeared greater than the right.

  13. Dr Machart in the report dated 28 April 2023 noted that she was treated for a SLAP, Grade 1 lesion. He concluded “Whether this was caused by injury is debateable. These lesions are over-diagnosed. It is highly unlikely that she suffered a same injury in both shoulders”.

  14. Dr Machart concluded “More likely than not, there is minor pathology complicated by pain issues, severity of the symptoms, and clinical signs are outside of the parameters of objectively defined injury”.

  15. Dr Machart notes “…it is highly unlikely that she suffered a same injury in both shoulders”, it is not clear that Dr Machart has addressed the relevant causation question being whether the motor accident could have caused or contributed to the left shoulder injury.

  1. Dr Machart in the report dated 28 April 2023 appears to have accepted the injury to the left shoulder could be related to the accident. The use of the word “debateable” clearly shows that Dr Machart contemplated the cause and was not prepared to exclude the potential for the injury to have been caused by the accident.

  2. In these circumstances, it would seem that Dr Machart accepted that the motor accident could have caused or contributed to the left shoulder injury. He was not prepared to express a conclusive view that the left shoulder injury was not caused or contributed to by the motor accident.

  3. There was a substantial volume of material setting out reports of injury to the left shoulder following the accident and the treatment received.

  4. There was reported pain in the left shoulder region with an X-ray taken five days after the accident and cortisone injections one month after the accident.

  5. This conclusion appears to be consistent with the views of Dr Machart.

  6. We reviewed the contemporaneous documents in relation to the description and circumstances of the motor accident and its immediate aftermath, including the claimants account of the accident and the claimants account of the injuries.

  7. We reviewed the various medical opinions provided.

  8. Medical Assessor Shane Moloney made a medical determination that the motor accident could have caused or contributed to the left shoulder injury.

  9. This conclusion appears to be consistent with the views of Dr Machart.

  10. We accepted the medical determination of Medical Assessor Shane Moloney that the motor accident could have caused or contributed to the left shoulder injury.

  11. Both the Medical Assessors on the Review Panel made a medical determination that the motor accident could have caused or contributed to the left shoulder injury.

  12. Medical Assessor Shane Moloney diagnosed SLAP lesion and impingement syndrome.

  13. We accepted, on the balance of probabilities, that the motor accident could have caused or contributed to the left shoulder injury.

  14. Both the Medical Assessors on the Review Panel did not consider that the absence of a report of left shoulder in the period between the accident and 15 February 2021 was of particular clinical significance in the circumstances, because this history was consistent with the injury having been caused by the accident.

  15. Both the Medical Assessors on the Panel considered that the nature of the injury, left shoulder SLAP lesion and impingement syndrome, the reported symptoms, the documented symptoms and treatment received were consistent with the injury having been caused by the accident.

  16. Having considered the dynamics of the accident, the reported symptoms of left shoulder pain contemporaneously with the accident, the ongoing complaints in relation to the left shoulder and the consideration of these issues by the other medical professional we accepted that the left shoulder injury was caused or materially contributed to by the accident.

  17. We accepted, on the balance of probabilities, that the test for legal causation, in relation to the motor accident and the left shoulder injury was satisfied.

  18. The Review Panel has determined that this injury was caused by the motor accident which resulted in a surgical repair in October 2021.

  19. We accepted, on the balance of probabilities, that the motor accident did cause the left shoulder injury.

Whether the right shoulder (was) caused by the motor accident?

  1. In the certificate dated 21 June 2023 Medical Assessor Jonathan Herald concluded that the right shoulder injury was caused by the motor accident.

  2. Medical Assessor Jonathan Herald diagnosed the injury as impingement syndrome.

  3. The claimant did not dispute the conclusion that the claimant sustained an injury to the right shoulder, specifically impingement syndrome as a result of the motor accident.

  4. The insurer notes that the clinical records of Dr Lim include an entry of 11 February 2021 and that these records do include a specific report of right shoulder pain.

  5. The insurer submitted that ultrasounds of both shoulders performed 5 March 2021 revealed no sonographic evidence of a rotator cuff tear or tendinosis on either side although there were sonographic features of significant bursitis.

  6. The insurer notes MRI of the shoulders performed 16 April 2021 noted in the right shoulder there was tendinosis predominately at the anterior rotator cuff interval with subtle bursal distension.

  7. We note the comments above in relation to the assessment of causation in relation to the left shoulder and the review of the opinion of Dr Machart in relation to the shoulder injuries.

  8. Dr Machart in the report dated 28 April 2023 accepted the injury to the right shoulder was related to the accident.

  9. There was a substantial volume of material setting out reports of injury to the right shoulder following the accident and the treatment received.

  10. The treating GP recorded pain in the right shoulder region immediately after the accident and organised an ultrasound guided cortisone injection, five weeks after the accident.

  11. We reviewed the contemporaneous documents in relation to the description and circumstances of the motor accident and its immediate aftermath, including the claimant’s account of the accident and the claimant’s account of the injuries.

  12. We reviewed the various medical opinions provided.

  13. Medical Assessor Shane Moloney made a medical determination that the motor accident could have caused or contributed to the right shoulder injury.

  14. We accepted the medical determination of Medical Assessor Shane Moloney that the motor accident could have caused or contributed to the right shoulder injury.

  15. Both the Medical Assessors on the Review Panel made a medical determination that the motor accident could have caused or contributed to the right shoulder injury.

  16. Medical Assessor Shane Moloney diagnosed impingement syndrome.

  17. We accepted, on the balance of probabilities, that the motor accident could have caused or contributed to the left shoulder right shoulder injury.

  18. Both the Medical Assessors on the Panel considered that the nature of the injury, right shoulder impingement syndrome, the reported symptoms, the documented symptoms and treatment received were consistent with the injury having been caused by the accident.

  19. Having considered the dynamics of the accident, the reported symptoms of right shoulder pain contemporaneously with the accident, the ongoing complaints in relation to the right shoulder and the consideration of these issues by the other medical professional we accepted that the right shoulder injury was caused or materially contributed to by the accident.

  20. We accepted, on the balance of probabilities, that the test for legal causation, in relation to the motor accident and the right shoulder injury was satisfied.

  21. We accepted, on the balance of probabilities, that the alleged factor, the motor accident, did cause the right shoulder injury.

Whether the left hand, right hand, left wrist and right wrist (was) caused by the motor accident?

  1. In the certificate dated 21 June 2023 Medical Assessor Jonathan Herald concluded that the left hand, right hand, left wrist and right wrist injury was caused by the motor accident.

  2. Medical Assessor Jonathan Herald diagnosed the injury as bilateral hand and wrist carpal tunnel syndrome.

  3. The claimant’s submission maintain that the claimant sustained an injury to the left hand, right hand, left wrist and right wrist, specifically a bilateral hand and wrist carpal tunnel syndrome as a result of the motor accident.

  4. The insurer disputed the conclusion that the claimant sustained an injury to the left hand, right hand, left wrist and right wrist, specifically bilateral hand and wrist carpal tunnel syndrome as a result of the motor accident.

  5. The insurer notes that the clinical records of Dr Lim include an entry of 11 February 2021. Whilst the claimant reported some right and left hand ache generally at that consultation, examination revealed full range of movement of the fingers with no point tenderness about the left and right hands and no swelling or bruising.

  6. The referral from Dr Pich to Dr Yee of 1 July 2022 noted a history of increasing numbness and weakness in both hands since the motor vehicle accident in which she reportedly jolted her hands on the steering wheel. The claimant had been investigated with nerve conduction studies and had been diagnosed with carpal tunnel syndrome.

  7. The insurer maintained that because of the significant temporal delay between the onset of the more significant hand symptoms in 2022, the Medical Assessor would not accept that the reported complaints in 2022 are referrable to the sequelae of the subject accident.

  8. The claimant made reference to the records of Ashley Medical Centre including reports of aching in both hand on the day of the accident.

  9. The claimant made reference to the certificate of Medical Assessor Jonathan Herald.

  10. Medical Assessor Jonathan Herald noted “More recently, she has had nerve conduction studies which showed possible carpal tunnel syndrome, and she has been seeing Dr Ye, who has not recommended surgery but has suggested cortisone injections.”

  11. Medical Assessor Jonathan Herald noted:

    “Examination of hands and wrists, however, have full range of motion. Neurological examination reveals no objective sensory deficit in the median nerve or carpal tunnel region and no objective muscle weakness in the thenar muscles or integrated muscles of carpal tunnel. There is a negative carpal tunnel compression test and negative Phalen's test.”

  12. Both the Medical Assessors on the Review Panel considered that whilst there was a report of pain in both hands on 11 February 2012 the absence of significant reported issues in relation to the left hand, right hand, left wrist and right wrist injury up to about 1 July 2022 was of particular significance in the circumstances.

  13. This was because of the significant delay between the accident and reports of pain that were of such significance to warrant investigation and treatment.

  14. Aside from the initial complaints of pain, all of the surrounding circumstances including the reports of pain, and the onset of symptoms were consistent with an onset of symptoms occurring a significant time after the accident being unrelated to that accident.

  15. Medical Assessor Shane Moloney made a medical determination that the alleged factor, the motor accident, could have caused or contributed to the left hand, right hand, left wrist and right wrist injury, in different circumstances.

  16. We accepted the medical determination of Medical Assessor Shane Moloney that the alleged factor could have caused or contributed to the left hand, right hand, left wrist and right wrist injury.

  17. Both the Medical Assessors on the Review Panel made a medical determination that the alleged factor, the motor accident, could have caused or contributed to the left hand, right hand, left wrist and right wrist injury, in different circumstances.

  18. We accepted, on the balance of probabilities, that the alleged factor, the motor accident, could have caused or contributed to the left hand, right hand, left wrist and right wrist injury, in different circumstances.

  19. Medical Assessor Shane Moloney diagnosed bilateral hand and wrist carpal tunnel syndrome.

  20. Medical Assessor Shane Moloney was of the view that whilst the motor accident could have caused or contributed to the left hand, right hand, left wrist and right wrist injury the history of the onset of symptoms in these circumstances was not consistent with the injury having been caused by the motor accident.

  21. Both the Medical Assessors on the Panel considered that the nature of the injury, bilateral hand and wrist carpal tunnel syndrome, the reported symptoms, the documented symptoms and treatment received were not consistent with the injury having been caused by the accident.

  22. Having considered the dynamics of the accident, the reported symptoms of left hand, right hand, left wrist and right wrist pain contemporaneously with the accident, the ongoing complaints in relation to the left hand, right hand, left wrist and right wrist and the consideration of these issues by the other medical professional we accepted that the left hand, right hand, left wrist and right wrist injury was not caused or materially contributed to by the accident.

  23. We accepted, on the balance of probabilities, that the test for legal causation, in relation to the motor accident and the left hand, right hand, left wrist and right wrist injury was not satisfied.

  24. We accepted, on the balance of probabilities, that the motor accident did not cause the left hand, right hand, left wrist and right wrist injury.

  25. The Review Panel does not consider that the motor vehicle accident caused the development of carpal tunnel syndrome.

Whether the left hip injury (was) caused by the motor accident?

  1. In the certificate dated 21 June 2023 Medical Assessor Jonathan Herald concluded that the left hip injury was caused by the motor accident.

  2. Medical Assessor Jonathan Herald diagnosed the injury as trochanteric bursitis.

  3. The claimant did not dispute the conclusion that the claimant sustained an injury to the left hip, specifically a trochanteric bursitis as a result of the motor accident.

  4. The insurer disputed the conclusion that the claimant sustained an injury to the left hip, specifically a trochanteric bursitis as a result of the motor accident.

  5. The insurer asserted that the first recorded complaint of hip symptoms was on 23 March 2021 when the claimant alleged that that she had experienced some left posterior hip/gluteal pain which commenced ‘a few days’ after the motor vehicle accident. She reported tenderness over the left trochanteric bursa.

  6. The insurer’s contention was that given the temporal delay in the reporting of symptoms about the left hip the Medical Assessor would not find any injury to the left hip in the subject accident.

  7. Medical Assessor Shane Moloney noted that a diagnosis of trochanteric bursitis was made in an ultrasound 2 months after the accident which has now resolved with continual slight tenderness in the gluteal muscles. There was no evidence of trochanteric bursitis at the time of examination.

  8. Both the Medical Assessors on the Review Panel did not consider that the absence of a report of left hip pain in the period between the accident and 23 March 2021, (when that report included the assertion of pain which commenced ‘a few days’ after the motor vehicle accident) was of particular significance in the circumstances because this history was consistent with the injury having been caused by the accident.

  9. The Panel accepted that the left hip pain commenced ‘a few days’ after the motor vehicle accident.

  10. Aside from the absence of recorded symptoms for a brief period, the nature of the injury and the onset of symptoms was otherwise consistent with an injury resulting from the accident.

  11. We reviewed the contemporaneous documents in relation to the description and circumstances of the motor accident and its immediate aftermath, including the claimants account of the accident and the claimants account of the injuries.

  12. We reviewed the various medical opinions provided.

  13. Medical Assessor Shane Moloney made a medical determination that the motor accident could have caused or contributed to the left hip injury.

  14. We accepted the medical determination of Medical Assessor Shane Moloney that the motor accident could have caused or contributed to the left hip injury.

  15. Both the Medical Assessors on the Review Panel made a medical determination that the motor accident could have caused or contributed to the left hip injury.

  16. Medical Assessor Shane Moloney diagnosed trochanteric bursitis.

  17. We accepted, on the balance of probabilities, that the motor accident could have caused or contributed to the left hip injury.

  18. Both the Medical Assessors on the Panel considered that the nature of the injury, left hip trochanteric bursitis, the reported symptoms, the documented symptoms and treatment received were consistent with the injury having been caused by the accident.

  19. Having considered the dynamics of the accident, the reported symptoms of left hip pain contemporaneously with the accident, the ongoing complaints in relation to the left hip and the consideration of these issues by the other medical professional we accepted that the left hip injury was caused or materially contributed to by the accident.

  20. We accepted, on the balance of probabilities, that the test for legal causation, in relation to the motor accident and the left hip injury was satisfied.

  21. We accepted, on the balance of probabilities, that the motor accident did cause the left hip injury.

  22. Whilst we found that the left hip injury was caused or materially contributed to by the accident, we found that the injury had resolved.

Whether the left knee (was) caused by the motor accident?

  1. In the certificate dated 21 June 2023 Medical Assessor Jonathan Herald concluded that the left knee injury was caused by the motor accident.

  2. Medical Assessor Jonathan Herald diagnosed the injury as soft tissue injury.

  3. The claimant did not dispute the conclusion that the claimant sustained an injury to the left knee, specifically a soft tissue injury as a result of the motor accident.

  4. The insurer disputed the conclusion that the claimant sustained an injury to the left knee, specifically a soft tissue injury as a result of the motor accident.

  5. The insurer notes that the clinical records of Dr Lim include an entry of 11 February 2021, there is no report of any left knee pain. It is asserted that the records of the practice do not include any reports of left knee pain.

  6. At the time of his examination Dr Woo did not record any history of left knee pain or symptoms, nor did he record any current symptoms of left knee pain.

  7. Dr Woo did not diagnose any left knee injury.

  8. Medical Assessor Jonathan Herald reported “She had radiation with tingling initially down both her legs but now she has probably radiculopathic symptoms down her right lower limb.”

  9. Medical Assessor Jonathan Herald concluded:

    “She has previously had radiculopathic symptoms down the left leg that has become intermittent and essentially disappeared. With regards to her left hip, trochanteric bursitis has resolved predominantly, and now she does not have an abnormal gait, although she does still have some symptoms. Her left knee injury seems to have improved with the left hip as the ITB tightness seemed to be affected by it.”

  10. The analysis of Medical Assessor Jonathan Herald suggests that the abnormal gait, that was the asserted cause of the left knee issues, was related to the left hip injury.

  11. We accepted that for a period, the claimant had an abnormal gait as a result of the left hip injury, that caused the left knee issues.

  12. Having accepted that the left knee injury was caused by the left hip injury, having accepted that the left hip injury was caused by the accident we accepted that the left knee injury was caused or materially contributed to by the accident.

  13. We reviewed the contemporaneous documents in relation to the description and circumstances of the motor accident and its immediate aftermath, including the claimants account of the accident and the claimants account of the injuries.

  14. We reviewed the various medical opinions provided.

  15. Medical Assessor Shane Moloney made a medical determination that the motor accident could have caused or contributed to the left knee injury.

  16. We accepted the medical determination of Medical Assessor Shane Moloney that the motor accident could have caused or contributed to the left knee injury.

  17. Medical Assessor Shane Moloney diagnosed a left knee soft tissue injury.

  18. We accepted, on the balance of probabilities, that the motor accident could have caused or contributed to the left knee injury.

  19. Both the Medical Assessors on the Panel considered that the nature of the injury, left knee soft tissue injury, the reported symptoms, the documented symptoms and treatment received were consistent with the injury having been caused by the accident.

  20. We accepted, on the balance of probabilities, that the test for legal causation, in relation to the motor accident and the left knee injury was satisfied.

  1. We accepted, on the balance of probabilities, that the motor accident did cause the left knee injury.

  2. Whilst we found that the left knee injury was caused or materially contributed to by the accident, we found that the injury had resolved.

Whether the left foot and right foot (was) caused by the motor accident?

  1. In the certificate dated 21 June 2023 Medical Assessor Jonathan Herald concluded that the left foot and right foot injury was caused by the motor accident.

  2. Medical Assessor Jonathan Herald diagnosed the injury as radiculopathic symptoms (pins and needles sensation) to both feet.

  3. The insurer did not dispute the conclusion that the claimant sustained an injury to the left foot and right foot, specifically a radiculopathic symptoms (pins and needles sensation) to both feet as a result of the motor accident.

  4. The claimant did not dispute the conclusion that the claimant sustained an injury to the left foot and right foot, specifically a radiculopathic symptoms (pins and needles sensation) to both feet as a result of the motor accident.

  5. Medical Assessor Shane Moloney diagnosed intermittent paraesthesia to both feet. 

  6. We reviewed the contemporaneous documents in relation to the description and circumstances of the motor accident and its immediate aftermath, including the claimants account of the accident and the claimants account of the injuries.

  7. We reviewed the various medical opinions provided.

  8. Medical Assessor Shane Moloney made a medical determination that the motor accident could have caused or contributed to the left foot and right foot injury.

  9. We accepted the medical determination of Medical Assessor Shane Moloney that the motor accident could have caused or contributed to the left foot and right foot injury.

  10. We accepted, on the balance of probabilities, that the motor accident could have caused or contributed to the left foot and right foot injury.

  11. Both the Medical Assessors on the Panel considered that the nature of the injury, intermittent paraesthesia to both feet, the reported symptoms, the documented symptoms and treatment received were consistent with the injury having been caused by the accident.

  12. Having considered the dynamics of the accident, the reported symptoms of left foot and right foot pain contemporaneously with the accident, the ongoing complaints in relation to the left foot and right foot and the consideration of these issues by the other medical professional we accepted that the left foot and right foot injury was caused or materially contributed to by the accident.

  13. We accepted, on the balance of probabilities, that the test for legal causation, in relation to the motor accident and the left foot and right foot injury was satisfied.

  14. We accepted, on the balance of probabilities, that the alleged factor, the motor accident, did cause the left foot and right foot injury.

Causation conclusions

  1. The Review Panel found that the following injuries were caused by the motor accident:

    (a)    cervical spine, soft tissue injury to the cervical spine;

    (b)    lumbar spine, soft tissue injury to lumbar spine with no signs of radiculopathy or non-verifiable radicular complaint in a dermatomal pattern;

    (c)    left Shoulder SLAP lesion and impingement syndrome;

    (d)    right Shoulder impingement syndrome;

    (e)    left knee soft tissue injury to the left knee;

    (f)    left hip trochanteric bursitis, and

    (g)    left foot and right foot, intermittent paraesthesia to both feet.

  2. The Review Panel found that the following injuries were not caused by the motor accident:

    (a)    left hand right hand left wrist right wrist, bilateral hand and wrist carpal tunnel syndrome.

  3. The Review Panel found that the following injuries were caused by the motor accident but had resolved:

    (a)    left knee soft tissue injury to the left knee, and

    (b)    left hip trochanteric bursitis.

Permanent impairment

  1. As noted earlier, permanent impairment is to be assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines) which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).

Assessment of the spine generally

  1. Assessment of the spine required consideration of Chapter 3 of AMA 4 Guides. Only the diagnostic related estimate method of assessment is allowed (cl 6.111).

  2. The spine is divided (cl 6.131) into three regions:

    (a)     cervicothoracic;

    (b)     thoracolumbar, and

    (c)     lumbosacral.

  3. If injury to the spine is alleged, then each of the regions is assessed and the percentage impairments combined to obtain a total spinal impairment (6.119).

  4. There are five diagnostic related categories, and a number of indicia provided (see Table 7). The first is diagnosis-related estimate (DRE) category I which is selected if there are symptoms which may include pain.

  5. The first is DRE category I which is selected if there are symptoms which may include pain. 

  6. DRE II requires:

    (a)     pain with guarding, or

    (b)     non-uniform range of motion – dysmetria, or

    (c)     non-verifiable radicular complaints defined in Table 6.8 as:

    (i) symptoms (shooting pain, burning sensation, tingling), and

    (ii) which follow the distribution of a specific nerve root but no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes.

  7. DRE III requires radiculopathy which is defined in cl 6.138 as

    “dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination ... 

    (a) loss or asymmetry of reflexes;

    (b) positive sciatic nerve root tension signs;

    (c) muscle atrophy and/or decreased limb circumference; 

    (d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and

    (e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”

The degree of permanent impairment of the injured person that has resulted from the cervical spine injury?

  1. In the certificate dated 21 June 2023 Medical Assessor Jonathan Herald diagnosed the injury as soft tissue injury.

  2. Medical Assessor Jonathan Herald concluded that the permanent impairment resulting from the cervical spine injury was 0%.

  3. The insurer did not seek to dispute the conclusion that the permanent impairment resulting from the cervical spine injury was 0%.

  4. The insurer’s contention was that any residual symptoms experienced by the claimant that may be found to be referrable to the accident give rise to a DRE I impairment, with no assessable impairment arising.

  5. The claimant maintained that impairment for the cervical spine is in relation to clinical findings which include a non-uniform loss of range of motion.

  6. Dr Woo identified a DRE II impairment rating he noted “She has injury with asymmetric movement and non-verifiable radicular complaints”.

  7. We note the examinations findings of Medical Assessor Shane Moloney set out above and his assessment of the permanent impairment. The Panel accepted the findings made by Medical Assessor Shane Moloney.

  8. The Review Panel accepted that there was evidence to satisfy DRE I.

  9. There was no evidence of any of the criteria required for a DRE II assessment.

The degree of permanent impairment of the injured person that has resulted from the lumbar spine injury

  1. In the certificate dated 21 June 2023 Medical Assessor Jonathan Herald diagnosed the injury as soft tissue injury with radiculopathic symptoms.

  2. Medical Assessor Jonathan Herald concluded that the permanent impairment resulting from the lumbar spine injury was 5%.

  3. The insurer disputed the conclusion that the permanent impairment resulting from the lumbar spine injury was 5%.

  4. The insurer notes that Dr Woo identified a DRE I impairment rating of the back, under heading method of assessment and ascribed a 0% WPI in the WPI tabulation. In the event the Medical Assessor was to find that there was a soft tissue injury to the lumbar spine then equally it would be found to be a DRE I impairment giving rise to no assessable whole person impairment.

  5. The claimant did not seek to dispute the conclusion that the permanent impairment resulting from the lumbar spine injury was 5%.

  6. The claimant maintained that impairment for the lumbar spine is in relation to clinical findings which include a non-uniform loss of range of motion.

  7. The treating GP also recorded low back pain within three weeks of the accident, and this is classified as a soft tissue injury with no signs of radiculopathy or non-verifiable radicular complaint in a dermatomal pattern. This is also a classification DRE 1 which is 0% WPI.

  8. We note the examinations findings of Medical Assessor Shane Moloney set out above and his assessment of the permanent impairment. The Panel accepted the findings made by Medical Assessor Shane Moloney.

  9. The Review Panel accepted that there was evidence to satisfy DRE I. There was no evidence of any of the criteria required for a DRE II assessment.

  10. The injury is a soft tissue injury with no signs of radiculopathy or non-verifiable radicular complaint in a dermatomal pattern. This is also a classification DRE 1 which is 0% WPI.

The degree of permanent impairment of the injured person that has resulted from the left shoulder and right shoulder injury

  1. In the certificate dated 21 June 2023 Medical Assessor Jonathan Herald diagnosed the injury to the left shoulder as SLAP lesion and impingement syndrome and the injury to the right shoulder as impingement syndrome.

  2. Medical Assessor Jonathan Herald concluded that the permanent impairment resulting from the left shoulder and right shoulder injury was 16%.

  3. The insurer disputed the conclusion that the permanent impairment resulting from the left shoulder right shoulder injury was 16%.

  4. The claimant did not seek to dispute the conclusion that the permanent impairment resulting from the left shoulder right shoulder injury was 16%.

  5. Dr Machart confirmed arthroscopic scars from surgery on the left. He confirmed symmetrically diminished movement, with Flexion 80º, Extension 40º, Abduction 70º, Adduction 30º, External rotation 30º, and Internal rotation 30º.

  6. Dr Machart noted that he used paragraph 6.40 in Guides, he did not further explain his evaluation.

  7. Dr Machart concluded that he did not find pathology of injury that explains the severity of the movement diminution. The evident movement reduction does not correlate with the minor pathology of injury displayed on ultrasound and MRI. Frozen shoulder is a potential diagnosis. The clinical features do not fit this diagnostic picture.

  8. Dr Machart concluded that:

    “…in the absence of correlation between the reduction of the movement symmetrical in both shoulders, and the pathology of injury, impairment is assessed as best-fit scenario, using my knowledge as an orthopaedic surgeon, dealing with similar pathology. I assess 3% each shoulder without deductions”.

  9. We accepted that it was necessary to evaluate each shoulder separately.

Right shoulder

  1. The insurer noted that the examination by Dr Woo as detailed in his report of 16 June 2022 are to be contrasted with the findings of the claimant’s treating physiotherapist, Mr Simpson and exercise physiologist, Ms Kinney given their assessments on 5 September and 19 September 2022.

  2. The claimant maintained that impairment for the right shoulder was related to the range of motion.

  3. Dr Woo concluded that the right shoulder motion impairment resulted in an 8% WPI. He set out the findings on examination noting impairment of the left upper extremity of 14%, converted to 8% WPI (Table 3 at page 20).

  4. We note the examinations findings of Medical Assessor Shane Moloney set out above and his assessment of the permanent impairment. The Panel accepted the findings made by Medical Assessor Shane Moloney.

  5. We accepted that there had been some variability in the examination of the right shoulder.

  6. Impairment of the shoulders is determined by range of movement. At the time of the examination by the Review Panel, there was consistent movement on repeat testing which was nearly identical to the range of movement recorded by Medical Assessor Herald in May 2023 and by Dr Woo in June 2022.

  7. The right shoulder has an impairment of 14% UEI using figures 38, 4144 of AMA 4th edition which converts to 8% WPI using Table 3.

Left shoulder

  1. The insurer noted that the examination by Dr Woo as detailed in his report of 16 June 2022 are to be contrasted with the findings of the claimant’s treating physiotherapist, Mr Simpson and exercise physiologist, Ms Kinney given their assessments on 5 September and 19 September 2022.

  2. The claimant maintained that impairment for the left shoulder was related to the range of motion.

  3. Dr Woo concluded that the left shoulder motion impairment resulted in an 8% WPI. He set out the findings on examination noting impairment of the left upper extremity of 14%, converted to 8% WPI (Table 3 at page 20).

  4. We note the examinations findings of Medical Assessor Shane Moloney set out above and his assessment of the permanent impairment. The Panel accepted the findings made by Medical Assessor Shane Moloney.

  5. We accepted that there had been some variability in the examination of the right shoulder.

  6. Impairment of the shoulders is determined by range of movement. At the time of the examination on behalf of the Review Panel, there was consistent movement on repeat testing which was nearly identical to the range of movement recorded by Medical Assessor Herald in May 2023 and by Dr Woo in June 2022.

  7. Whilst the insurer had raised some issues about the variability in the examination of the shoulders, we did not consider this to be of great significance because at the time of the examination on behalf of the Review Panel there was consistent movement on repeat testing which was nearly identical to the range of movement recorded by Medical Assessor Herald in May 2023 and by Dr Woo in June 2022.

  8. For the reasons above, the Review Panel was confident that the range of movement had been reliably ascertained.

  9. The left shoulder has impairment of 12% UEI using the same figures which converts to 7% WPI.

The degree of permanent impairment of the injured person that has resulted from the left hand, right hand, left wrist and right wrist injury

  1. In the certificate dated 21 June 2023 Medical Assessor Jonathan Herald diagnosed the injury as bilateral hand and wrist carpal tunnel syndrome.

  2. Medical Assessor Jonathan Herald concluded that the permanent impairment resulting from the left hand, right hand, left wrist and right wrist injury was 0%.

  3. The insurer did not dispute the conclusion that the permanent impairment resulting from the left hand, right hand, left wrist and right wrist injury was 0%.

  4. The claimant did not dispute the conclusion that the permanent impairment resulting from the left hand, right hand, left wrist and right wrist injury was 0%.

  5. We note the examinations findings of Medical Assessor Shane Moloney set out above.

  6. We found that the left hand, right hand, left wrist and right wrist injury was not caused by the accident.

  7. There was no requirement to make any determination in relation to permanent impairment resulting from the left hand, right hand, left wrist and right wrist injury.

The degree of permanent impairment of the injured person that has resulted from the left hip injury

  1. In the certificate dated 21 June 2023 Medical Assessor Jonathan Herald diagnosed the injury as trochanteric bursitis.

  2. Medical Assessor Jonathan Herald concluded that the permanent impairment resulting from the left hip injury was 0%.

  3. The insurer did not dispute the conclusion that the permanent impairment resulting from the left hip injury was 0%.

  4. The claimant did not dispute the conclusion that the permanent impairment resulting from left hip injury was 0%.

  5. Dr Woo concluded that the left hip trochanteric bursitis resulted in a 0% WPI. He confirmed the claimant has a normal gait.

  6. We note the examinations findings of Medical Assessor Shane Moloney set out above.

  7. We found that the left hip injury had resolved.

  8. There was no permanent impairment resulting from the left hip injury.

The degree of permanent impairment of the injured person that has resulted from the left knee injury

  1. In the certificate dated 21 June 2023 Medical Assessor Jonathan Herald diagnosed the injury as soft tissue injury.

  2. Medical Assessor Jonathan Herald concluded that the permanent impairment resulting from the left knee injury was 0%.

  3. The claimant did not dispute the conclusion that the permanent impairment resulting from the left knee injury was 0%.

  4. The insurer did not dispute the conclusion that the permanent impairment resulting from the left knee injury was 0%.

  5. The insurer maintained that Dr Woo found no assessable impairment for the left hip. The insurer noted the claimant had previously experienced symptoms about the right buttock when seen by Dr Lim on 31 October 2016. At the time range of movements of the right hip were full.

  6. The claimant subsequently reported similar symptoms about the left buttock on 1 April 2019. There was said to be discomfort about the left buttock region. Straight leg raise was said to be normal on examination with no neurological abnormality in the left lower limb. The diagnosis was believed to be likely muscular/gluteal bursitis. The insurer contends the hip complaints relate to a pre-existing condition, unrelated to the effects of the accident.

  7. Dr Woo reported she had a normal gait.

  8. We note the examinations findings of Medical Assessor Shane Moloney set out above.

  9. We found that the left hip had resolved.

  10. There was no permanent impairment resulting from the left hip injury.

The degree of permanent impairment of the injured person that has resulted from the left foot and right foot injury

  1. In the certificate dated 21 June 2023 Medical Assessor Jonathan Herald diagnosed the injury as radiculopathic symptoms (pins and needles sensation) to both feet.

  2. The contention was that the impairment in relation to both feet arose out of the lumbar spine injury.

  3. Medical Assessor Jonathan Herald concluded that the permanent impairment resulting from the left foot and right foot injury was 0%.

  4. The insurer did not dispute the conclusion that the permanent impairment resulting from the left foot and right foot injury was 0%.

  5. The claimant did not dispute the conclusion that the permanent impairment resulting from the left foot and right foot injury was 0%.

  6. Dr Woo did not assess any permanent impairment.

  7. We have addressed the issues in relation to the permanent impairment resulting from the left foot and right foot injury in relation to the injury to the lumbar spine.

Permanent impairment conclusions

  1. The Review Panel determined the degree of permanent impairment as follows:

Body part or System

Permanent

Yes/No

Current %WPI

%WPI from pre-existing or subsequent causes

%WPI due to motor accident

Cervical spine

AMA4

DRE Category I

Yes

0%

0%

0%

Lumbar spine

DRE Category I

Yes

0%

0%

0%

Right Shoulder

AMA4 Figures 38 4144

Table 3

Yes

8%

0%

8%

Left Shoulder

AMA4 Figures 38 4144

Table 3

Yes

7%

0%

7%

Both hands and wrists carpal tunnel syndrome

Yes

0%

0%

0%

Left hip trochanteric bursitis

Yes

0%

0%

0%

Both feet

Yes

0%

0%

0%

Left Knee

Yes

0%

0%

0%

CONCLUSION

  1. The left shoulder has impairment of 12% UEI using the same figures which converts to 7% WPI.

  2. The right shoulder has an impairment of 14% UEI using figures 38, 4144 of AMA 4th edition which converts to 8% WPI using Table 3.

  3. This gives a total of 14% WPI for the shoulder impairments.

  4. As the Review Panel has come to a different conclusion to Medical Assessor Jonathan Herald, the Review Panel will therefore revoke his certificate.

  5. A new certificate will be issued.

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Rahman v Insurance Australia Ltd t/as NRMA Insurance [2022] NSWSC 1079
Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372
Metro North Hospital and Health Service v Pierce [2018] NSWCA 11