Insurance Australia Limited t/as NRMA Insurance v Ulkin

DETERMINATION OF REVIEW PANEL
CITATION:	Insurance Australia Limited t/as NRMA Insurance v Ulkin [2024] NSWPICMP 643
CLAIMANT:	Fatma Ulkin
INSURER:	Insurance Australia Limited t/as NRMA
REVIEW PANEL
MEMBER:	Stephen Boyd-Boland
MEDICAL ASSESSOR:	Margaret Gibson
MEDICAL ASSESSOR:	Ian Cameron
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, right shoulder, right hip, right knee, right ankle, right foot, right arm secondary to cervical spine impairment, left arm, secondary to cervical spine impairment, left knee, and stomach; Medical Assessor (MA) Berry found that the injuries to cervical spine, lumbar spine, right shoulder, right hip, right knee, right ankle, right foot, right arm, secondary to cervical spine impairment caused by the motor accident; MA Berry found that the injuries to left arm secondary to cervical spine impairment, left knee, and stomach were not caused by the motor accident; MA Berry assessed whole person impairment (WPI) as follows: cervical spine 5%, lumbar spine 5%, right shoulder 5%, right hip, right knee 2%, right foot 0% finding a 17% WPI; re-examination by Medical Review Panel (Panel); Panel found that the injuries to cervical spine, lumbar spine, right shoulder, right hip, right knee, right ankle, right foot, right arm, secondary to cervical spine impairment were caused by the motor accident; Panel found that the injuries to left arm secondary to cervical spine impairment, left knee, and stomach were not caused by the motor accident; Panel assessed WPI as follows: cervical spine 0%, lumbar spine 0%, right shoulder 2%, right knee 2%, right foot 0% finding a total 4% WPI; Held – the injuries caused by the motor accident give rise to a permanent impairment of 4%; Panel revoked the earlier certificate and issued a new certificate.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under s 7.26 of the Motor Accident Injuries Act 2017 1. The following injuries caused by the motor accident give rise to a permanent impairment of 4% and is not greater than 10%: · Right shoulder, soft tissue injury 2% · Right knee, soft tissue injury 2%.

STATEMENT OF REASONS

INTRODUCTION

On 8 June 2020, Fatma Ulkin (the claimant) sustained injury in a motor vehicle accident (the accident).
Insurance Australia Ltd t/as NRMA Insurance (the insurer) is the relevant insurer.
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).
Claims are initiated by lodgement of an Application for Personal Injury Benefits and also an application for Damages under Common Law arising out of the motor accident against (the insurer). The legislation provides a scheme of statutory benefits (under Part 3) and lump sum damages (under Part 4).
Statutory benefits include weekly benefits for lost earnings and treatment and care needs for accident-related injuries.
Claims for damages include damages for economic losses and possibly non-economic loss resulting from accident-related injuries.
Damages for non-economic loss are regulated by the provisions in Part 4, Division 4.3 of the MAI Act. 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.
If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and the dispute must be referred to a Medical Assessor for determination.
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).
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).”
Chapter 7, Division 7.5 of the MAI Act provides for medical assessments by the Personal Injury Commission (Commission) including provisions relevant to an original medical assessment, further medical assessments and the review of medical assessments by this Panel.
This dispute is in relation to whether the degree of permanent impairment sustained by the claimant as a result of the injury caused by the accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAI Act.
A medical assessment was conducted by Medical Assessor Neil Berry who subsequently provided a certificate dated 17 August 2023 (the Initial Assessment).

The Assessors Certificate

The following injuries were referred by the Commission to Medical Assessor Neil Berry for assessment:
(a)    cervical spine;
(b)    lumbar spine;
(c)    right shoulder;
(d)    right hip;
(e)    right knee;
(f)    right ankle;
(g)    right foot;
(h)    right arm, secondary to cervical spine impairment;
(i)    left arm, secondary to cervical spine impairment;
(j)    left knee, and
(k)    stomach.
Medical Assessor Berry 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;
(c)    right shoulder being soft tissue injury;
(d)    right hip being non-specific injury;
(e)    right knee being soft tissue injury;
(f)    right ankle being non-specific injury, and
(g)    right foot being non-specific injury;
Medical Assessor Berry found that the following injuries were NOT caused by the accident:
(a)    left arm, secondary to cervical spine impairment;
(b)    left knee, and
(c)    stomach.
Medical Assessor Berry found that the following injuries caused by the motor accident have resolved:
(a) right hip, and
(b) right arm, secondary to cervical spine impairment.
The Medical Assessor 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

Yes

5%

0%

5%

Lumbar spine

Yes

5%

0%

5%

Right Shoulder

Yes

5%

0%

5%

Right Knee

Yes

2%

0%

2%

Right Ankle and Foot

Yes

0%

0%

0%

The Medical Assessor determined the degree of permanent impairment to be 17%.

The Review

The insurer lodged an application for review of the assessment of Medical Assessor Neil Berry.
On 31 October 2023 the delegate of the President determined there was reasonable cause to suspect a material error in that assessment.
The President of the Commission then convened a panel to conduct the review.
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 decision maker’ is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new 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.
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.
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.
The Review Panel was comprised of two specialist medical practitioners and a legal member. The Panel met on a number of occasions and provided directions to the parties.
The Review is a process involving the Panel seeking evidence, including additional material provided by the parties and further submissions, and potentially further medical examination, then meeting on a number of occasions to discuss the evidence before the Panel and to reach a view on the relevant issues and reduce that to written reasons.
The Review Panel is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45] and Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21] and [64].
Both the claimant and the insurer are legal represented and have the opportunity to provide submissions and to identify and narrow the issues in dispute so as to meet the objectives of the MAI Act.
Whilst the review is by way of a new assessment of all matters with which the medical assessment is concerned this occurs in the context of the initial assessment and certificate, the application for review of the assessment and the determination to conduct a review.
The following injuries were referred by the Commission for assessment:
(a)    cervical spine;
(b)    lumbar spine;
(c)    right shoulder;
(d)    right hip;
(e)    right knee;
(f)    right ankle;
(g)    right foot;
(h)    right arm, secondary to cervical spine impairment;
(i)    left arm, secondary to cervical spine impairment;
(j)    left knee, and
(k)    stomach.

The Review Panel

Directions were issued by the Review Panel and the claimant was re-examined by Medical Assessor Ian Cameron on behalf of the Review Panel on 19 April 2024.
The parties were asked to provide submissions for the purpose of the Review addressing various specific issues.
The parties provided documentation to the Review Panel.
The insurer provided:
(a) a bundle of documents “DISP - Ulkin - Insurer's Index of Review Panel Bundle” being 177 pages;
The claimant provided:
(a) a bundle of documents “PIC Claimant Review Bundle” being 331 pages.
The insurer relied upon submissions dated 13 September 2023.
The claimant relied upon submissions dated 13 October 2023.
Pursuant to section 7.26(6A) the panel agreed that Medical Assessor Cameron would conduct the medical re-examination of the claimant for the purposes of the review.
Re-examination of Fatma Ulkin by Medical Assessor Cameron was arranged.
The Directions required the claimant to provide the general practitioner records by 1 March 2024.
The claimant subsequently provided a bundle of documents “Ulkin- Dr Vuong clinical notes” being 69 pages on 14 March 2024.
The insurer did not object to the admission of these documents.
Neither party sought to make submission in relation to material contained in these documents.
In Rahman v Insurance Australia Ltd t/as NRMA Insurance 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.
The 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 Applicant Insurer submissions

The insurer lodged an application for review of the assessment of Medical Assessor Neil Berry.
The insurer relied upon submissions dated 13 September 2023.
The Insurer did not take any issues with the conclusions of Medical Assessor Neil Berry that the following injuries were caused by the motor accident:
(a)    cervical spine being soft tissue injury;
(b)    lumbar spine being soft tissue injury;
(c)    right shoulder being soft tissue injury;
(d)    right hip being non-specific injury;
(e)    right knee being soft tissue injury;
(f)    right ankle being non-specific injury, and
(g)    right foot being non-specific injury.
The Insurer did not take any issues with the conclusions of Medical Assessor Neil Berry that that the following injuries were NOT caused by the accident:
(a)    left arm, secondary to cervical spine impairment;
(b)    left knee, and
(c)    stomach.
The Insurer did not take any issues with the conclusions of Medical Assessor Neil Berry that the following injuries caused by the motor accident have resolved:
(a) right hip, and
(b) right arm, secondary to cervical spine impairment.
The Insurer accepted the conclusions of Medical Assessor Neil Berry in relation to the degree of permanent impairment determined in relation to following injuries:
(a)    right shoulder;
(b)    right hip;
(c)    right ankle, and
(d)    right foot.
The insurer took issue with the degree of permanent impairment determined in relation to following injuries:
(a)    cervical spine, soft tissue injury;
(b)    lumbar spine, soft tissue injury, and
(c)    right knee injury.
The insurer maintained that in relation to both the cervical spine and lumbar spine that the material did not support a finding of DRE II but did support a finding of DRE I.
The insurer maintained that in relation to the right knee that the WPI finding required a finding of direct trauma to the knee.

The Respondent Claimant submissions

The claimant relied upon submissions dated 13 October 2023.
The claimant’s submissions also limit the issues the degree of permanent impairment determined in relation to following injuries:
(a)    cervical spine, soft tissue injury;
(b)    lumbar spine, soft tissue injury, and
(c)    right knee injury.

Re-Examination of the Claimant

Pursuant to section 7.26(6A) the panel agreed that Medical Assessor Cameron would conduct the medical re-examination of the claimant for the purposes of the review.
Fatma Ulkin attended Medical Assessor Cameron’s medical examination rooms in Hornsby on 19 April 2024 was examined by Medical Assessor Cameron.
Fatma Ulkin was reassessed by Medical Assessor Cameron on 19 April 2024. Fatma Ulkin attended accompanied by Ms Sahin, Arabic Interpreter, NAATI number 25462.

Background

Fatma Ulkin is living at Auburn with her husband. She has a married daughter who lives elsewhere and her adult son is there on and off.
Fatma Ulkin said that she was working full-time at the time of the motor vehicle crash.
Fatma Ulkin said her general health has been good. However, in January 2024 Fatma Ulkin had treatment for right sided breast cancer. There was a biopsy and excision and then radiotherapy.

History of Injury

On 8 June 2020 Fatma Ulkin was a pedestrian at a crossing with her husband. She was hit by a vehicle.
Fatma Ulkin was taken to Bankstown Hospital where she had her initial treatment.
There was subsequent treatment from her general practitioners and in particular Dr Vuong.
Fatma Ulkin has not been able to recover. She has been having ongoing support from the psychologist. She has also had significant physiotherapy treatment.
Fatma Ulkin has not returned to driving and has had multiple physical and psychological symptoms.

Current Status

Fatma Ulkin said she had pain from her neck, right shoulder, lower back, right lateral thigh and right ankle. Fatma Ulkin said there were memory problems, and she was more emotional. At the time of the re-examination Ms Ulkin did not report pain to either arm that was related to the cervical spine.
Fatma Ulkin said she had limited walking and limited standing times. She confirmed she is not driving. She generally sits in the rear seat of a vehicle because her anxiety is less with that seating position. She is worried about further injury.
Current medications are Endep 25 mg daily, Mersyndol and paracetamol. The general practitioner is Dr Vuong who is seen about every two weeks. There are consultations with a psychologist second weekly.
Fatma Ulkin said that physiotherapy would restart soon with hydrotherapy and an exercise group.
Fatma Ulkin is not working. She said her income is from insurance payments.

Examination

Fatma Ulkin is right handed, 160 cm in height and weighed 85 kg.
Fatma Ulkin was co-operative. Fatma Ulkin was emotionally distressed when talking about the accident and its effects.
At the cervical spine there was moderately and symmetrically reduced range of motion (to 60% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present. Nerve tension signs were negative.
At both shoulders there was inconsistent movement that Fatma Ulkin said was due to variable pain. The maximum observed movements at the left shoulder were abduction 140 degrees, adduction 30 degrees, flexion 120 degrees, extension 30 degrees, external rotation 70 degrees, internal rotation 80 degrees.
The maximum observed movements at the right shoulder were abduction 50 degrees, adduction 20 degrees, flexion 90 degrees, extension 30 degrees, external rotation 70 degrees, internal rotation 70 degrees.
There was a full range of motion at other upper extremity joints.
There were no neurological abnormalities in the upper extremities.
Circumferences of the upper extremities were right 27cm and left 27cm.
At the thoracic spine there was moderately and symmetrically reduced range of motion (to 60% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present.
At the lumbar spine there was markedly and symmetrically reduced range of motion (to 50% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present. Nerve tension signs were negative.
Tenderness was reported over the right greater trochanter.
There was a full range of motion at both knees. There was no crepitus or instability, except that there was crepitus at the right knee.
There was a full range of motion at other lower extremity joints.
There were no neurological abnormalities in the lower extremities.
Circumferences of the lower extremities were right 47cm and left 47cm.
Fatma Ulkin walked with a normal gait.
There was an MRI of the right ankle and foot on 19 December 2022 that showed no significant abnormalities.

Diagnosis

In the motor vehicle crash on 8 June 2020 Fatma Ulkin sustained multiple soft tissue injuries. She also has ongoing psychological symptoms. There is medical evidence of soft tissue injuries to the cervical and lumbar spinal regions, and the right shoulder. Given the mechanism of injury in which Ms Ulkin was a pedestrian hit by a vehicle there could have been an injury to the right knee. Other injuries are discussed later in this Certificate.

Impairment Evaluation

Cervical spine – soft tissue injury

The neck injury (injury to the cervicothoracic spine) is assessed with reference to the Diagnosis Related Estimate (DRE) method from Chapter 3.3h of AMA4 Guides. Fatma Ulkin has “no significant clinical findings” with reference to this spinal region, and therefore DRE Cervicothoracic Category I (0% WPI) is the appropriate evaluation. There are no symptoms or signs, that are currently present, that justify assessment of DRE II in this spinal region. Specifically, no atrophy, no muscle spasm, no muscle guarding, no dysmetria were present, while non-verifiable radicular complaints were not present. Reflexes were within normal limits, nerve tension signs were negative and there was no weakness or loss of sensation. The Nguyen judgement issues to the shoulders because there was a direct injury to the right shoulder and there is no evidence that problems from the cervical spine are producing symptoms in that shoulder.

Lumbar spine – soft tissue injury

The lumbar spine injury (injury to the lumbosacral spine) is assessed with reference to the DRE method. Fatma Ulkin has “no significant clinical findings” with reference to the lumbosacral spine, and therefore DRE Lumbosacral Category I (0% WPI) is the appropriate evaluation. There are no symptoms or signs, that are currently present, that justify assessment of DRE II in this spinal region. Specifically, no atrophy, no muscle spasm, no muscle guarding, no dysmetria were present, while non-verifiable radicular complaints were not present. Reflexes were within normal limits, nerve tension signs were negative and there was no weakness or loss of sensation.

Right shoulder – soft tissue injury

Due to pain, movements of this shoulder were inconsistent. In this regard the Motor Accident Guidelines, s 6.40 are noted: “The Assessor must utilise the entire gamut of clinical skill and judgment in assessing whether or not the results of measurements or tests are plausible and relate to the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears not to verify that an impairment of a certain magnitude exists, the Assessor should modify the impairment estimate accordingly, describing the modification and outline the reasons in the impairment evaluation report”. It is, in the judgment of the assessor, not appropriate to rely on the measured range of motion in this case.
The clinical information does not show that there are major significant pathological changes present in this shoulder. Therefore, the assessment of permanent impairment is made by analogy, and it is determined that the impairment would be equivalent to mild crepitation ((Section 6.24 of the Motor Accident Guidelines) and see Table 19 page 59 of AMA4 Guides) at the acromioclavicular joints (see Table 18, page 58 of AMA4 Guides) and therefore would be 10% of 25% UEI, which rounds to 3% UEI and converts to 2% WPI. There is no other available method of measurement by analogy applicable in this situation.

Right knee – soft tissue injury

The footnote to Table 62, page 83 of AMA4 Guides, suggests that 2% WPI is assessable where there has been direct trauma to the knee, patellofemoral pain and crepitation. This is an appropriate evaluation in this case.

Right ankle and foot – soft tissue injury

For evaluation of the impairment associated with this injury the only applicable method is related to abnormal range of motion and using this method there is 0% WPI.

Summary

The total permanent impairment is 4% WPI.
The Panel accepted the examination report from Medical Assessor Cameron, set out above.
The Panel accepted and adopted the findings and clinical opinions of Medical Assessor Cameron, set out above.

Issues for the Review

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.
Having considered the submissions of the parties, the issues are Permanent Impairment - the degree of permanent impairment that has resulted from the following injuries:
(a)    cervical spine;
(b)    lumbar spine; and
(c)    right knee.
It was still necessary for the Panel to determine:
(a) Causation - whether the following injuries were caused by the motor accident:
(i)cervical spine;
(ii)lumbar spine;
(iii)right shoulder;
(iv)right hip;
(v)right knee;
(vi)right ankle;
(vii)right foot;
(viii)right arm, secondary to cervical spine impairment;
(ix)left arm, secondary to cervical spine impairment;
(x)left knee, and
(xi)stomach.
(b)Permanent Impairment - the degree of permanent impairment that has resulted from the following injuries:
(i)cervical spine;
(ii)lumbar spine;
(iii)right shoulder;
(iv)right hip;
(v)right knee;
(vi)right ankle;
(vii)right foot;
(viii)right arm, secondary to cervical spine impairment;
(ix)left arm, secondary to cervical spine impairment;
(x)left knee, and
(xi)stomach.

Review of the Evidence

Pre-accident history

Ms Ulkin came to Australia in 1987 from Turkey and she subsequently completed her education in Australia.
She is a married woman and has two children, a daughter and a son. Her daughter is married and has two children of her own and at times will come and help her with
Neither the insurer nor the claimant took any significant factual issue in relation to the pre-accident circumstances.

The accident

On 8 June 2020 she and her husband went shopping in Chester Hill and as they were crossing a road at a pedestrian crossing, she was struck by a vehicle at low speed and knocked to the ground landing on her right side. She was unable to get herself up. Police and Ambulance attended the scene, and she was transported by Ambulance to Bankstown-Lidcombe Hospital.
Neither the insurer nor the claimant took any significant factual issue in relation to the circumstances of the accident. There was some dispute in relation to precisely what parts of the body were the subject of direct trauma.

Post-accident symptoms and medical treatment

Ambulance report dated 8 June 2020 confirmed the circumstances of the accident and that she was transported to Bankstown-Lidcombe Hospital.
At hospital she underwent a CT scan and was found to have a fracture in the sacrum but no other fractures. She was kept overnight for observation and discharged the following day and advised to follow up with her general practitioner.
Discharge Summary – Bankstown-Lidcombe Hospital confirming that the claimant was involved in a low speed MVA (pedestrian vs car). She was seen in Emergency Department complaining of low back pain and a CT scan which showed a subtle S5 sacral fracture. She was discharged the following day with pain relief and advised to follow up with her general practitioner.
Ms Ulkin consulted her general practitioner, Dr Philip Vuong on 11 June 2020 complaining of neck and back pain. He referred her to have an MRI scan of the cervical and lumbar spine and following the scans he referred her for physiotherapy and hydrotherapy. She was also referred to a psychologist.
Due to persistent neck and back pain she was referred to Dr Raoul Pope, Orthopaedic Surgeon who referred her for an epidural block and to see a pain specialist.
She has had scans done for her right shoulder, right knee and right hip due to pain and restriction.
Some months later she developed abdominal pain based in the right iliac fossa. Tests showed that she had a positive faecal occult blood and accordingly she was referred to a Gastroenterologist, Dr Manohar, who performed a colonoscopy at Auburn Hospital.
A polyp was resected and the claimant was followed up with a second colonoscopy 12 months later. Ms Ulkin told informed me that she has been unable to return to work.
A report of Dr Alan Nazha, Pain Physician & Interventional Pain Specialist dated 17 July 2020 confirmed that the claimant had ongoing neck and back problems.
Report of Dr John Bentivoglio, Orthopaedic Surgeon, provided a report dated 1 November 2021. Dr Bentivoglio recorded history of the claimant being struck on the right side of her body and being knocked to the ground sustaining jarring injuries to her neck and back as well as to other regions. Dr Bentivoglio confirmed ongoing symptoms in relation to the back and neck.
Dr Bentivoglio was of the view that the claimant sustained muscular ligamentous strains of the cervical spine as a result of the accident and may well also have sustained some degree of discomfort damage to the lumbar spine as result of the motor accident. Dr Bentivoglio did not consider there was any evidence of nerve root irritation.
Dr Bentivoglio concluded that the claimant met the criteria for DRE II impairment of the lumbar spine as a result of the discovery damage with non-verifiable reticular complaints. He says this is a 5% whole person impairment.
In relation to the neck Dr Bentivoglio considered that there were no significant clinical findings and assess the claimant as DRA category one.
Dr Pope provided a report dated 16 June 2020. Dr Pope recorded history of the accident with the plaintiff being struck by vehicle where she landed on the bonnet and then landed onto the road.
Dr Pope was of the view that the claimant had musculoskeletal neck pain with some stiffness. He considered the main problem to be an L5/S1 disc herniation with annular tear and discogenic back pain and a right probable S1 radicular pain.
Dr Daniel Rahme, Orthopaedic Surgeon, provided a report dated 10 November 2021. Dr Rahme recorded that the claimant was hit by a car on a pedestrian crossing and sustained multiple injuries including the spine, right hip, knee and foot. He noted increasing pain in her right knee. Dr Daniel Rahme considered that the pathology on her patella was pre-existing and age-related. He considered that the muscle imbalance was compounding the issue in the right knee.
Report of Dr Evan Dryson, Occupation Physician, provided a dated 19 January 2022. Dr Dryson recorded history of the accident with the claimant being struck on the right hand side of her body. Dr Dryson reported pain in the lumbar spine and radiation down the right leg as far as the knee. She reported pain in the left leg but less severe. She reported her right arm was weak and reported ongoing neck pain. She reported swelling in the right ankle, a painful right knee that clicks when walking. She reported that her left knee was becoming painful because she tended to now favour this.
Dr Dryson accepted that the claimant had soft tissue injuries to the cervical spine, a sacral fracture that had now healed with disc protrusions at L5/S1, aggravation of degenerative disease in the right knee, compensatory left knee pain and ligamentous strain in the right ankle.
Dr Dryson was of the view that the claimant met the criteria for DRE II in that there was signs of injury with no radiculopathy. He described this as equating to 5% whole person impairment.
In relation to the shoulders Dr Dryson considered that the claimant has a 14% impairment of the upper extremity relation to the right shoulder which equated an 8% whole person impairment.
Dr Dryson considered that she had a 9% impairment of the upper extremity in relation to the left shoulder that equated to a 5% whole person impairment.
Dr Dryson considered that the reduced range of movement was due to referred pain from the neck injury.
In relation to the lumbar spine Dr Dryson considered that the claimant met the category for DRE II as they were signs of injury with no radicular pattern. He noted this equated to a 5% whole person impairment.
In relation to the right knee no radiculopathy noted mild impairment of flexion that equated to a 4% whole person impairment. He made a deduction for pre-existing degenerative disease of 1/10 reducing this to 3.6 that was then rounded to 4% whole person impairment.
Dr Dryson considered that in relation to the right ankle there was mild impairment of extension at equal a 3% whole person impairment. He also noted mild impairment of inversion/inversion equal to 1% whole person impairment. The total being 4% whole person impairment.
Dr Dryson noted altered sensation in the right foot secondary to the right ankle injury and assess this as being equal to 2% whole person impairment.
Neither the insurer nor the claimant took any significant factual issue in relation to the post-accident symptoms and medical treatment.
The focus of the dispute was in relation to assessment of the evidence in terms of permanent impairment.

Investigations

MRI cervical spine dated 13 June 2020 reports no significant disturbance in the cervical spine.
MRI lumbar spine dated 13 June 2020 showed a posterocentral disc bulge at L5/S1 with a possible posterocentral annular tear.
Whole body bone scan dated 1 July 2020 reports evidence of an acute fracture across the lower sacrum but no other significant changes.
Ultrasound right shoulder dated 9 July 2020 reports moderate subacromial bursitis and AC joint degeneration.
MRI right knee dated 22 August 2020 reports mild mucoid degeneration of the posterior horn of medial meniscus without tear and chondral fissuring of the lateral patella facet.
MRI right hip dated 30 December 2020 reports a mild right hip trochanteric bursitis.
MRI right ankle dated 23 August 2021 reports mild scarring of the ATFL and CFL but no tear. There is an old avulsed fracture fragment of the tip of the medial malleolus.
CT abdomen and pelvis dated 3 September 2020 reports sigmoid diverticulosis without diverticulitis.
MRI cervical spine dated 20 November 2020 reports no evidence of neural impingement throughout the cervical spine and no canal stenosis.

Causation

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.
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… “
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.
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?

In the certificate dated 17 August 2023, Medical Assessor Neil Berry concluded that the cervical spine injury was caused by the motor accident.
Medical Assessor Neil Berry diagnosed the injury as soft tissue injury.
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.
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.
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.
We reviewed history, including pre-accident history and pre-existing conditions, all relevant records available, the claimant’s current symptoms, the results of the various physical examinations and all of the diagnostic tests available.
We reviewed the various medical opinions provided.
The Panel accepts the evidence was to the effect that:
(a)    the claimant had no significant cervical spine symptoms prior to the accident;
(b)    the circumstances of the accident as described do not suggest a direct trauma to the cervical spine (although this was possible);
(c)    at the time of the accident the claimant did not assert that there was any direct impact to the cervical spine (although this was possible);
(d)    at the time of the accident the claimant did not assert that she felt immediate pain in the cervical spine;
(e)    shortly after the accident the claimant sought medical treatment in relation to the cervical spine, and
(f)    there is medical opinion to the effect that the cervical spine injury was caused by the motor accident.
Medical Assessor Cameron diagnosed the injury as cervical spine soft tissue injury.
The evidence available is consistent with the claimant suffering an injury to the cervical spine in the motor accident.
In our view this was consistent with the reasoning of Medical Assessor Neil Berry in the certificate dated 17 August 2023.
Both of the medical assessors made a medical determination that the motor accident could have caused or contributed to the cervical spine injury.
We accepted the medical determination of medical assessors that the motor accident could have caused or contributed to the cervical spine injury.
We accepted, on the balance of probabilities, that the motor accident could have caused or contributed to the cervical spine injury.
Having considered the dynamics of the accident, the reported symptoms of cervical spine pain contemporaneously with the accident, the ongoing complaints in relation to the cervical spine and the consideration of these issues by the other medical professional we accepted that the cervical spine injury was caused or materially contributed to by the accident.
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.
We accepted, on the balance of probabilities, that the motor accident did cause the cervical spine injury, being a soft tissue injury.

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

In the certificate dated 17 August 2023 Medical Assessor Neil Berry concluded that the lumbar spine injury was caused by the motor accident.
Medical Assessor Neil Berry diagnosed the injury as soft tissue injury
The insurer did not dispute the conclusion that the claimant sustained an injury to the lumbar spine, specifically soft tissue injury, as a result of the motor accident.
The claimant did not dispute the conclusion that the claimant sustained an injury to the lumbar spine, specifically soft tissue injury, as a result of the motor accident.
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.
We reviewed history, including pre-accident history and pre-existing conditions, all relevant records available, the claimant’s current symptoms, the results of the various physical examinations and all of the diagnostic tests available.
We reviewed the various medical opinions provided.
The Panel accepts the evidence was to the effect that:
(a)    the claimant had no significant lumbar spine symptoms prior to the accident;
(b)    the circumstances of the accident as described do not suggest a direct trauma to the lumbar spine (although this was possible);
(c)    at the time of the accident the claimant did not assert that there was any direct impact to the lumbar spine (although this was possible);
(d)    at the time of the accident the claimant did assert that she felt immediate pain in the lumbar spine;
(e)    the post-accident medical treatment included treatment in relation to the lumbar spine, and
(f)    there is medical opinion to the effect that the lumbar spine injury was caused by the motor accident.
Medical Assessor Cameron diagnosed the injury as lumbar spine soft tissue injury.
The evidence available is consistent with the claimant suffering an injury to the lumbar spine as a result of the motor accident.
In our view this was consistent with the reasoning of Medical Assessor Neil Berry in the certificate dated 17 August 2023.
Both of the medical assessors made a medical determination that the motor accident could have caused or contributed to the lumbar spine injury.
We accepted the medical determination of medical assessors that the motor accident could have caused or contributed to the lumbar spine injury.
We accepted, on the balance of probabilities, that the motor accident could have caused or contributed to the lumbar spine injury.
Having considered the dynamics of the accident, the reported symptoms of lumbar spine pain contemporaneously with 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.
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.
We accepted, on the balance of probabilities, that the motor accident did cause the lumbar spine injury, being a soft tissue injury.

Whether the right arm injury caused by the motor accident?

In the certificate dated 17 August 2023 Medical Assessor Neil Berry concluded that the right arm injury was caused by the motor accident.
Medical Assessor Neil Berry diagnosed the injury as non-specific injury.
The material provided described the injury as impairment secondary to cervical spine nerve injury.
The assessment of causation in relation to this injury should be considered in the context of causation in relation to the cervical spine.
The nature of the injury is based upon the account from the claimant that she had symptoms in the cervical spine radiating into the right arm.
Medical Assessor Cameron diagnosed the injury as a non-specific injury being symptoms radiating into the right arm.
Both of the medical assessors made a medical determination that the motor accident could have caused or contributed to the right arm injury.
We accepted the medical determination of medical assessors that the motor accident could have caused or contributed to the right arm injury.
We accepted, on the balance of probabilities, that the motor accident could have caused or contributed to the right arm injury.
We accepted, on the balance of probabilities, that the test for legal causation, in relation to the motor accident and the right arm injury was satisfied.
We accepted, on the balance of probabilities, that the motor accident did cause the right arm injury.

Whether the left arm injury caused by the motor accident?

In the certificate dated 17 August 2023, Medical Assessor Neil Berry concluded that the left arm injury was NOT caused by the motor accident.
Medical Assessor Neil Berry diagnosed the injury as non-specific injury.
The material provided described the injury as impairment secondary to cervical spine nerve injury.
Medical Assessor Neil Berry noted that examination of the left upper extremity disclosed that the left upper extremity is normal in all respects.
The insurer did not dispute the conclusion that the left arm injury was NOT caused by the motor accident.
The claimant did not dispute the conclusion that the left arm injury was NOT caused by the motor accident.
Unlike the right arm, there were no accounts from the claimant that she had symptoms in the cervical spine radiating into the left arm.
The evidence available is not consistent with the claimant suffering an injury to the left arm as a result of the motor accident.
Both of the medical assessors on the Panel made a medical determination that the motor accident could have caused or contributed to the left arm, in different circumstances.
Both of the medical assessors on the Panel made a medical determination that the motor accident did not cause or contribute to the left arm injury.
Having considered the available material and the opinions of the medical assessors on the Panel we concluded that the left arm injury was NOT caused or materially contributed to by the accident.
We accepted, on the balance of probabilities, that the alleged factor, the motor accident, did not cause or contribute to the left arm injury.

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

In the certificate dated 17 August 2023, Medical Assessor Neil Berry concluded that the right shoulder injury was caused by the motor accident.
Medical Assessor Neil Berry diagnosed the injury as soft tissue injury.
The insurer did not dispute the conclusion that the claimant sustained an injury to the right shoulder, specifically a soft tissue injury as a result of the motor accident.
The claimant did not dispute the conclusion that the claimant sustained an injury to the right shoulder, specifically a soft tissue injury as a result of the motor accident.
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.
We reviewed history, including pre-accident history and pre-existing conditions, all relevant records available, the claimant’s current symptoms, the results of the various physical examinations and all of the diagnostic tests available.
We reviewed the various medical opinions provided.
The Panel accepts the evidence was to the effect that:
(a)    the claimant had no significant right shoulder symptoms prior to the accident;
(b)    the circumstances of the accident as described suggest a direct trauma to the right shoulder;
(c)    at the time of the accident the claimant did assert that there was direct impact to the right side of her body (possibly direct trauma to her right shoulder);
(d)    at the time of the accident the claimant did assert that she felt immediate pain in the right side of her body (and possibly in her right shoulder);
(e)    the immediate post-accident medical treatment did not include specific treatment in relation to the right shoulder;
(f)    within about one month of the accident there were reports of pain in the right shoulder and investigation including an ultrasound, and
(g)    there is medical opinion to the effect that the right shoulder injury was caused by the motor accident.
Medical Assessor Cameron diagnosed the injury as right shoulder soft tissue injury.
The evidence available is consistent with the claimant suffering an injury to the right shoulder as a result of the motor accident.
In our view this was consistent with the reasoning of Medical Assessor Neil Berry in the certificate dated 17 August 2023.
Both of the medical assessors made a medical determination that the motor accident could have caused or contributed to the right shoulder injury.
We accepted the medical determination of medical assessors that the motor accident could have caused or contributed to the right shoulder injury.
We accepted, on the balance of probabilities, that the motor accident could have caused or contributed to the right shoulder injury.
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.
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.
We accepted, on the balance of probabilities, that the motor accident did cause the right shoulder injury, being a soft tissue injury.

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

In the certificate dated 17 August 2023, Medical Assessor Neil Berry concluded that the right hip injury was caused by the motor accident.
Medical Assessor Neil Berry diagnosed the injury as non-specific injury.
The insurer did not dispute the conclusion that the claimant sustained an injury to the right hip, specifically a non-specific injury as a result of the motor accident.
The claimant did not dispute the conclusion that the claimant sustained an injury to the right hip, specifically a non-specific injury as a result of the motor accident.
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.
We reviewed history, including pre-accident history and pre-existing conditions, all relevant records available, the claimant’s current symptoms, the results of the various physical examinations and all of the diagnostic tests available.
We reviewed the various medical opinions provided.
The Panel accepts the evidence was to the effect that:
(a)    the claimant had no significant right hip symptoms prior to the accident;
(b)    the circumstances of the accident as described suggest a direct trauma to the right hip;
(c)    at the time of the accident the claimant did assert that there was direct impact to the right side of her body (possibly direct trauma to her right hip);
(d)    at the time of the accident the claimant did assert that she felt immediate pain in the right side of her body (and possibly in her right hip);
(e)    the immediate post-accident medical treatment did not include specific treatment in relation to the right hip;
(f)    within a few months of the accident there were reports of pain in the right leg and within a few months’ investigation of the right leg and an MRI of the right hip within about 6 months, and
(g)    there is medical opinion to the effect that the right hip injury was caused by the motor accident.
The evidence available is consistent with the claimant suffering an injury to the right hip as a result of the motor accident.
In our view this was consistent with the reasoning of Medical Assessor Neil Berry in the certificate dated 17 August 2023.
Both of the medical assessors made a medical determination that the motor accident could have caused or contributed to the right hip injury.
We accepted the medical determination of medical assessors that the motor accident could have caused or contributed to the right hip injury.
We accepted, on the balance of probabilities, that the motor accident could have caused or contributed to the right hip injury.
Having considered the dynamics of the accident, the reported symptoms of right leg and right hip pain contemporaneously with the accident, the ongoing complaints in relation to the right hip and the consideration of these issues by the other medical professional we accepted that the right hip injury was caused or materially contributed to by the accident.
We accepted, on the balance of probabilities, that the test for legal causation, in relation to the motor accident and the right hip injury was satisfied.
We accepted, on the balance of probabilities, that the motor accident did cause the right hip injury, being a soft tissue injury.

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

In the certificate dated 17 August 2023, Medical Assessor Neil Berry concluded that the right knee injury was caused by the motor accident.
Medical Assessor Neil Berry diagnosed the injury as soft tissue injury.
Medical Assessor Neil Berry noted crepitus in the right knee which I would consider to be due to a direct impact.
The insurer did not dispute the conclusion that the claimant sustained an injury to the right knee, specifically a soft tissue injury as a result of the motor accident.
The claimant did not dispute the conclusion that the claimant sustained an injury to the right knee, specifically a soft tissue injury as a result of the motor accident.
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.
We reviewed history, including pre-accident history and pre-existing conditions, all relevant records available, the claimant’s current symptoms, the results of the various physical examinations and all of the diagnostic tests available.
We reviewed the various medical opinions provided.
The Panel accepts the evidence was to the effect that:
(a)    the claimant had no significant right knee symptoms prior to the accident;
(b)    the circumstances of the accident as described suggest a probable direct trauma to the right knee;
(c)    at the time of the accident the claimant did assert that there was direct impact to the right side of her body (possibly direct trauma to her right knee);
(d)    at the time of the accident the claimant did assert that she felt immediate pain in the right side of her body (and possibly in her right knee);
(e)    the immediate post-accident medical treatment did not include specific treatment in relation to the right knee;
(f)    within a few months of the accident there were reports of pain in the right leg and within a few months’ investigation of the right leg and an MRI of the right knee within about 6 months, and
(g)    there is medical opinion to the effect that the right knee injury was caused by the motor accident.
Medical Assessor Cameron diagnosed the injury as right knee soft tissue injury.
The evidence available is consistent with the claimant suffering an injury to the right knee as a result of the motor accident.
In our view this was consistent with the reasoning of Medical Assessor Neil Berry in the certificate dated 17 August 2023.
Both of the medical assessors made a medical determination that the motor accident could have caused or contributed to the right knee injury.
We accepted the medical determination of medical assessors that the motor accident could have caused or contributed to the right knee injury.
We accepted, on the balance of probabilities, that the motor accident could have caused or contributed to the right knee injury.
Having considered the dynamics of the accident, the reported symptoms of right leg and right knee pain contemporaneously with the accident, the ongoing complaints in relation to the right knee and the consideration of these issues by the other medical professional we accepted that the right knee injury was caused or materially contributed to by the accident.
We accepted, on the balance of probabilities, that the test for legal causation, in relation to the motor accident and the right knee injury was satisfied.
We accepted, on the balance of probabilities, that the motor accident did cause the right knee injury, being a soft tissue injury.

Whether the right ankle injury (was) caused by the motor accident?

In the certificate dated 17 August 2023 Medical Assessor Neil Berry concluded that the right ankle injury was caused by the motor accident.
Medical Assessor Neil Berry diagnosed the injury as non-specific injury.
The insurer did not dispute the conclusion that the claimant sustained an injury to the right ankle, specifically a non-specific injury as a result of the motor accident.
The claimant did not dispute the conclusion that the claimant sustained an injury to the right ankle, specifically a non-specific injury as a result of the motor accident.
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.
We reviewed history, including pre-accident history and pre-existing conditions, all relevant records available, the claimant’s current symptoms, the results of the various physical examinations and all of the diagnostic tests available.
We reviewed the various medical opinions provided.
The Panel accepts the evidence was to the effect that:
(a)    the claimant had no significant right ankle symptoms prior to the accident;
(b)    the circumstances of the accident as described suggest a direct trauma to the right leg and possibly the right ankle;
(c)    at the time of the accident the claimant did assert that there was direct impact to the right side of her body (possibly direct trauma to her right ankle);
(d)    at the time of the accident the claimant did assert that she felt immediate pain in the right side of her body (and possibly in her right ankle);
(e)    the immediate post-accident medical treatment did not include specific treatment in relation to the right ankle;
(f)    within a few months of the accident there were reports of pain in the right leg and within a few months investigation of the right leg and an MRI of the right ankle within about 18 months, and
(g)    there is medical opinion to the effect that the right ankle injury was caused by the motor accident.
Medical Assessor Cameron diagnosed the injury as right ankle soft tissue injury.
The evidence available is consistent with the claimant suffering an injury to the right ankle as a result of the motor accident.
In our view this was consistent with the reasoning of Medical Assessor Neil Berry in the certificate dated 17 August 2023.
Both of the medical assessors made a medical determination that the motor accident could have caused or contributed to the right ankle injury.
We accepted the medical determination of medical assessors that the motor accident could have caused or contributed to the right ankle injury.
We accepted, on the balance of probabilities, that the motor accident could have caused or contributed to the right ankle injury.
Having considered the dynamics of the accident, the reported symptoms of right leg and right ankle pain contemporaneously with the accident, the ongoing complaints in relation to the right ankle and the consideration of these issues by the other medical professional we accepted that the right ankle injury was caused or materially contributed to by the accident.
We accepted, on the balance of probabilities, that the test for legal causation, in relation to the motor accident and the right ankle injury was satisfied.
We accepted, on the balance of probabilities, that the motor accident did cause the right ankle injury, being a soft tissue injury.

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

In the certificate dated 17 August 2023 Medical Assessor Neil Berry concluded that the right foot injury was caused by the motor accident.
Medical Assessor Neil Berry diagnosed the injury as non-specific injury.
The insurer did not dispute the conclusion that the claimant sustained an injury to the Right foot, specifically a non-specific injury as a result of the motor accident.
The claimant did not dispute the conclusion that the claimant sustained an injury to the Right foot, specifically a non-specific injury as a result of the motor accident.
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.
We reviewed history, including pre-accident history and pre-existing conditions, all relevant records available, the claimant’s current symptoms, the results of the various physical examinations and all of the diagnostic tests available.
We reviewed the various medical opinions provided.
The Panel accepts the evidence was to the effect that:
(a)    the claimant had no significant right hip symptoms prior to the accident;
(b)    the circumstances of the accident as described suggest a direct trauma to the right hip;
(c)    at the time of the accident the claimant did assert that there was direct impact to the right side of her body (possibly direct trauma to her right hip);
(d)    at the time of the accident the claimant did assert that she felt immediate pain in the right side of her body (and possibly in her right hip);
(e)    the immediate post-accident medical treatment did not include specific treatment in relation to the right hip;
(f)    within a few months of the accident there were reports of pain in the right leg and within a few months’ investigation of the right leg and an MRI of the right hip within about 6 months, and
(g)    there is medical opinion to the effect that the right hip injury was caused by the motor accident.
Medical Assessor Cameron diagnosed the injury as right hip soft tissue injury.
The evidence available is consistent with the claimant suffering an injury to the right hip as a result of the motor accident.
In our view this was consistent with the reasoning of Medical Assessor Neil Berry in the certificate dated 17 August 2023.
Both of the medical assessors made a medical determination that the motor accident could have caused or contributed to the right hip injury.
We accepted the medical determination of medical assessors that the motor accident could have caused or contributed to the right hip injury.
We accepted, on the balance of probabilities, that the motor accident could have caused or contributed to the right hip injury.
Having considered the dynamics of the accident, the reported symptoms of right leg and right hip pain contemporaneously with the accident, the ongoing complaints in relation to the right hip and the consideration of these issues by the other medical professional we accepted that the right hip injury was caused or materially contributed to by the accident.

We accepted, on the balance of probabilities, that the test for legal causation, in relation to the motor accident and the right hip injury was satisfied.
We accepted, on the balance of probabilities, that the motor accident did cause the right hip injury, being a soft tissue injury.

Whether the stomach injury caused by the motor accident?

In the certificate dated 17 August 2023 Medical Assessor Neil Berry concluded that the stomach injury was NOT caused by the motor accident.
Medical Assessor Neil Berry identified two injuries:
(a) Stomach (associated with the digestive system) with weight gain of 15 kgs secondary to reduced activity (stomach injury weight gain), and
(b) Stomach abdominal pain with a positive faecal occult blood (stomach injury abdominal pain).
In the certificate dated 17 August 2023 Medical Assessor Neil Berry noted:
“Ms Ulkin told me that some months later she developed abdominal pain based in the right iliac fossa. Tests showed that she had a positive faecal occult blood and accordingly she was referred to a Gastroenterologist, Dr Manohar, who performed a colonoscopy at Auburn Hospital. A polyp was resected and the claimant was followed up with a second colonoscopy 12 months later.”
In the certificate dated 17 August 2023 Medical Assessor Neil Berry concluded that the stomach injury weight gain of 15 kgs secondary to reduced activity was NOT caused by the motor accident.
Medical Assessor Neil Berry noted that the claimant’s weight has reduced back to 85 kgs.
In the certificate dated 17 August 2023 Medical Assessor Neil Berry concluded that the abdominal pain with a positive faecal occult blood was NOT caused by the motor accident. Specifically, Medical Assessor Neil Berry concluded that this is unrelated to her motor vehicle accident and is a result of a colonic polyp.
The insurer did not dispute the conclusion that the either stomach injury was NOT caused by the motor accident.
The claimant did not dispute the conclusion that the either stomach injury was NOT caused by the motor accident.
We reviewed the various medical opinions provided in relation to the stomach injury weight gain and its relation to the accident.
Both of the medical assessors on the Panel made a medical determination that the motor accident could have caused or contributed to the stomach injury weight gain, in different circumstances.
Both of the medical assessors on the Panel made a medical determination that the motor accident did not cause or contribute to the stomach injury weight gain.
Having considered the available material and the opinions of the medical assessors on the Panel we concluded that the stomach injury weight gain was NOT caused or materially contributed to by the accident.
We accepted, on the balance of probabilities, that the motor accident did not cause or contribute to the stomach injury weight gain.
We reviewed the various medical opinions provided in relation to the stomach injury abdominal pain and its relation to the accident.
Both of the medical assessors on the Panel made a medical determination that the motor accident could NOT have caused or contributed to the stomach injury abdominal pain.
Both of the medical assessors on the Panel made a medical determination that the stomach injury abdominal pain was a result of a colonic polyp, that was unrelated to the accident.
Having considered the available material and the opinions of the medical assessors on the Panel we concluded that the stomach injury abdominal pain was NOT caused or materially contributed to by the accident.
We accepted, on the balance of probabilities, that the alleged factor, the motor accident, did not cause or contribute to the stomach injury abdominal pain.

Whether the left knee injury caused by the motor accident?

In the certificate dated 17 August 2023 Medical Assessor Neil Berry concluded that the left knee injury was NOT caused by the motor accident.
Medical Assessor Neil Berry diagnosed the injury as non-specific injury.
The material provided described the injury as a soft tissue secondary to overcompensation.
The insurer did not dispute the conclusion that the left knee injury was NOT caused by the motor accident.
The claimant did not dispute the conclusion that the left knee injury was NOT caused by the motor accident.
The Panel accepts the evidence was to the effect that the circumstances of the accident as described did not suggest a direct trauma to the left knee, at the time of the accident the claimant did not assert that there was direct impact to the left knee, did not assert that there was pain in the left knee at the time or in the post-accident period. There were no contemporaneous reports of pain or treatment.
The evidence available is not consistent with the claimant suffering an injury to the left knee injury as a result of the motor accident.
Both of the medical assessors on the Panel made a medical determination that the motor accident could have caused or contributed to the left knee injury, in different circumstances.
Both of the medical assessors on the Panel made a medical determination that the motor accident did not cause or contribute to the left knee injury.
Having considered the available material and the opinions of the medical assessors on the Panel we concluded that the left knee injury was NOT caused or materially contributed to by the accident.
We accepted, on the balance of probabilities, that the alleged factor, the motor accident, did not cause or contribute to the left knee injury.

Causation conclusions

The Review Panel found that the following injuries were caused by the motor accident:
(a)    cervical spine;
(b)    lumbar spine;
(c)    right shoulder;
(d)    right hip;
(e)    right knee;
(f)    right ankle;
(g)    right foot, and
(h)    right arm, secondary to cervical spine impairment;
The Review Panel found that the following injuries were NOT caused by the motor accident:
(a)    left arm, secondary to cervical spine impairment;
(b)    left knee, and
(c)    stomach.

Resolved Injuries

Right hip

Medical Assessor Neil Berry found that this injury had resolved.
Medical Assessor Neil Berry found that the trochanteric bursitis had settled and she has a normal range of movement.
Medical Assessor Cameron accepted the assessment of Medical Assessor Neil Berry.
The Panel found that this injury had resolved.

Right Arm, secondary to cervical spine impairment

Medical Assessor Neil Berry found that this injury had resolved.
Medical Assessor Cameron noted that Fatma Ulkin had “no significant clinical findings” with reference to the cervical spinal region.
We accepted the assessment of Medical Assessor Cameron.
The Panel found that this injury had resolved.
The Review Panel found that the following injuries were caused by the motor accident and had resolved:
(a) right hip, and
(b) right arm, secondary to cervical spine impairment;

Permanent Impairment

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

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).
The spine is divided (cl 6.131) into three regions:
(a)    cervicothoracic;
(b)    thoracolumbar, and
(c)    lumbosacral.
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).
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.
The first is DRE category I which is selected if there are symptoms which may include pain.
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.
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

In the certificate dated 17 August 2023 Medical Assessor Neil Berry diagnosed the injury as soft tissue injury.
In the certificate dated 17 August 2023 Medical Assessor Neil Berry noted:
“Ms Ulkin told me today that she continues to have neck pain which at times radiates into her right shoulder. She also has pain in her back which is aggravated by bending or lifting. She told me that she also has pain down the right leg and is aware of the right knee crackling, especially when walking up and down stairs and she also has pain and stiffness in the right ankle and it occasionally swells.”
Medical Assessor Neil Berry noted an MRI of the Cervical Spine dated 13 June 2020 reports no significant disturbance in the cervical spine.
Medical Assessor Neil Berry noted:
“Ms Ulkin demonstrated a third of the normal range of right and left rotation. Flexion and extension were to half range and lateral flexion to the left and right were half range. There was no muscle spasm and no alteration of spinal contour. The claimant has no evidence of radiculopathy. She is assessed as DRE Category II which is a 5% Whole Person Impairment.”
Medical Assessor Neil Berry concluded that the permanent impairment resulting from the cervical spine injury was 5%.
The insurer disputed the conclusion that the permanent impairment resulting from the cervical spine injury was 5%.
The claimant did not seek to dispute the conclusion that the permanent impairment resulting from the cervical spine injury was 5%.
The claimant contended that asymmetric loss of range of motion (non-uniform loss of motion; dysmetria) may be present for flexion and extension, as presented by the claimant in Medical Assessor Berry’s assessment. Therefore, it is clear that Medical Assessor Berry’s findings satisfy the defining of the claimant’s cervical and lumbar injury as DRE category II as per Table 6.7 of the MAG.
As Medical Assessor Cameron noted the injury to the cervical spine is assessed with reference to the Diagnosis Related Estimate method from Chapter 3.3h of AMA4 Guides.
Medical Assessor Cameron noted Fatma Ulkin has “no significant clinical findings” with reference to this spinal region, and therefore DRE Cervicothoracic Category I (0% WPI) is the appropriate evaluation.
Medical Assessor Cameron found no symptoms or signs, that are currently present, that justify assessment of DRE II in this spinal region. Specifically, no atrophy, no muscle spasm, no muscle guarding, no dysmetria were present, while non-verifiable radicular complaints were not present. Reflexes were within normal limits, nerve tension signs were negative and there was no weakness or loss of sensation.
Medical Assessor Cameron commented that the Nguyen judgement issues do not apply because there was no direct effect of spinal symptoms causing permanent impairment in another body part.
As noted earlier, the Panel accepted the examination report from Medical Assessor Cameron and accepted and adopted the findings and clinical opinions of Medical Assessor Cameron.
The Panel accepted that examination revealed no symptoms or signs, present within the criteria of DRE II in the cervical region.
The Panel accepted that examination revealed symptoms present within the criteria of DRE I in the cervical region.
The Panel accepted that DRE Cervicothoracic Category I (0% WPI) is the appropriate evaluation.
The Panel accepted that the WPI In relation to the cervical spine was 0%.

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

In the certificate dated 17 August 2023 Medical Assessor Neil Berry diagnosed the injury as soft tissue injury.
In the certificate dated 17 August 2023 Medical Assessor Neil Berry noted:
“The claimant has no evidence of radiculopathy and is assessed as DRE Category II for her continuing restricted range of movement which is a 5% Whole Person Impairment.”
Medical Assessor Neil Berry concluded that the permanent impairment resulting from the lumbar spine injury was 5%.
The insurer disputed the conclusion that the permanent impairment resulting from the lumbar spine injury was 5%.
The claimant did not dispute the conclusion that the permanent impairment resulting from the lumbar spine injury was 5%.
The claimant contended that asymmetric loss of range of motion (non-uniform loss of motion; dysmetria) may be present for flexion and extension, as presented by the claimant in Medical Assessor Berry’s assessment. Therefore, it is clear that Medical Assessor Berry’s findings satisfy the defining of the claimant’s cervical and lumbar injury as DRE category II as per Table 6.7 of the MAG.
As Medical Assessor Cameron noted the injury to the lumbar spine injury is assessed with reference to the DRE method.
Medical Assessor Cameron noted Fatma Ulkin has “no significant clinical findings” with reference to the lumbosacral spine, and therefore DRE Lumbosacral Category I (0% WPI) is the appropriate evaluation.
Medical Assessor Cameron found no symptoms or signs, that are currently present, that justify assessment of DRE II in this spinal region. Specifically, no atrophy, no muscle spasm, no muscle guarding, no dysmetria were present, while non-verifiable radicular complaints were not present. Reflexes were within normal limits, nerve tension signs were negative and there was no weakness or loss of sensation.
Medical Assessor Cameron commented that the Nguyen judgement issues do not apply because there was no direct effect of spinal symptoms causing permanent impairment in another body part.
As noted earlier, the Panel accepted the examination report from Medical Assessor Cameron and accepted and adopted the findings and clinical opinions of Medical Assessor Cameron.
The Panel accepted that examination revealed no symptoms or signs, present within the criteria of DRE II in the lumbar region.
The Panel accepted that examination revealed symptoms present within the criteria of DRE I in the lumbar region.
The Panel accepted that DRE Lumbosacral Category I (0% WPI) is the appropriate evaluation.
The Panel accepted that the WPI In relation to the lumbar spine was 0%.

The degree of permanent impairment of the injured person that has resulted from the right arm injury

We found that this injury had resolved.
No assessment of permanent impairment was required.

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

We found that this injury was not caused by the accident.
No assessment of permanent impairment was required.

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

In the certificate dated 17 August 2023 Medical Assessor Neil Berry diagnosed the injury as soft tissue injury.
Medical Assessor Neil Berry concluded that the permanent impairment resulting from the right shoulder injury was 5%.
The insurer did not dispute the conclusion that the permanent impairment resulting from the right shoulder injury was 5%.
The claimant did not dispute the conclusion that the permanent impairment resulting from the Right shoulder injury was 5%.
Medical Assessor Cameron noted the clinical information does not show that there are major significant pathological changes present in this shoulder.
Medical Assessor Cameron noted that in these circumstances the assessment of permanent impairment is made by analogy, and it is determined that the impairment would be equivalent to mild crepitation ((Section 6.24 of the Motor Accident Guidelines) and see Table 19 page 59 of AMA4 Guides) at the acromioclavicular joints (see Table 18, page 58 of AMA4 Guides).
Medical Assessor Cameron considered this would be 10% of 25% UEI, which rounds to 3% UEI and converts to 2% WPI. There is no other available method of measurement by analogy applicable in this situation.
As noted earlier, the Panel accepted the examination report from Medical Assessor Cameron and accepted and adopted the findings and clinical opinions of Medical Assessor Cameron.
The Panel accepted the assessment of permanent impairment made by analogy, accepted 10% of 25% UEI, which rounds to 3% UEI and converts to 2% WPI.
The Panel accepted that the WPI In relation to the right shoulder was 2%.

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

We found that this injury had resolved.
No assessment of permanent impairment was required.

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

In the certificate dated 17 August 2023, Medical Assessor Neil Berry diagnosed the injury as soft tissue injury.
Medical Assessor Neil Berry recorded a history of the accident as follows:
“Ms Ulkin told me that on 8 June 2020 she and her husband went shopping in Chester Hill and as they were crossing a road at a pedestrian crossing she was struck by a vehicle at low speed and knocked to the ground landing on her right side. She was unable to get herself up. Police and Ambulance attended the scene and she was transported by Ambulance to Bankstown-Lidcombe Hospital.”
Medical Assessor Neil Berry recorded his findings on examination of the lower limbs:
“All active movements were measured using a goniometer. There was a normal range of movement of both hips, knees and ankles. There was crepitus in the right knee joint on flexion/extension movements but no instability. There was no unilateral muscle wasting and no sensory changes.”
Medical Assessor Neil Berry noted a report of Dr Daniel Rahme, Orthopaedic Surgeon, dated 10 November 2021, related to her right knee. She was found on examination to have patellofemoral crepitus and he recommended conservative treatment re physiotherapy.
Medical Assessor Neil Berry noted crepitus in the right knee which he considered to be due to a direct impact.
Medical Assessor Neil Berry concluded that the permanent impairment resulting from the right knee injury was 2%.
The insurer disputed the conclusion that the permanent impairment resulting from the right knee injury was 2%.
The insurer disputed this on the basis that such an assessment required direct trauma to the right knee and the contemporaneous material did not specifically identify direct trauma to the right knee.
The claimant did not seek to dispute the conclusion that the permanent impairment resulting from right knee injury was 2%.
We considered the dynamics of the accident, the general description was of the claimant being struck on the right side of the body and then landing on her right side.
The description is non-specific which in the circumstances is not unreasonable. The immediate focus of the claimant was not on any injury to the right knee.
The accident occurred on 8 June 2020 and the claimant underwent an MRI of the right knee on 22 August 2020, within 3 months of the accident.
Dr Daniel Rahme in the report dated 10 November 2021 commented that the pathology on the patella was pre-existing and age related. Dr Rahme did not record any direct trauma to the right knee. He considered the injury to the back had caused muscle imbalance contributing to patellofemoral overload compounding issues in the knee.

The motor accident could have been associated with direct trauma to the right knee. Assessor Cameron considered this injury in the context of direct trauma to the knee, patellofemoral pain and crepitation.
Medical Assessor Cameron considered the footnote to Table 62, page 83 of AMA4 Guides, suggests that 2% WPI is assessable where there has been direct trauma to the knee, patellofemoral pain and crepitation.
This is an appropriate evaluation in this case.
This method of evaluation is in the same context as the situation experienced by the claimant.

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

In the certificate dated 17 August 2023 Medical Assessor Neil Berry diagnosed the injury as non-specific injury.
Medical Assessor Neil Berry concluded that for evaluation of the impairment associated with this injury the only applicable method is related to abnormal range of motion.
Medical Assessor Neil Berry concluded that the permanent impairment resulting from the right foot injury was 0%.
The insurer did not dispute the conclusion that the permanent impairment resulting from the right foot injury was 0%.
The claimant did not dispute the conclusion that the permanent impairment resulting from the right foot injury was 0%.
Medical Assessor Cameron’s examination was consistent with Medical Assessor Neil Berry.
Medical Assessor Cameron concluded that for evaluation of the impairment associated with this injury the only applicable method is related to abnormal range of motion.
Medical Assessor Cameron concluded that the permanent impairment resulting from the right foot injury was 0%.

The degree of permanent impairment of the injured person that has resulted from the right ankle injury

In the certificate dated 17 August 2023, Medical Assessor Neil Berry diagnosed the injury as non-specific injury.
Medical Assessor Neil Berry concluded that for evaluation of the impairment associated with this injury the only applicable method is related to abnormal range of motion.
Medical Assessor Neil Berry concluded that the permanent impairment resulting from the right foot injury was 0%.
The insurer did not seek to dispute the conclusion that the permanent impairment resulting from the right foot injury was 0%.
The claimant did not seek to dispute the conclusion that the permanent impairment resulting from the right foot injury was 0%.
Medical Assessor Cameron’s examination was consistent with Medical Assessor Neil Berry.
Medical Assessor Cameron concluded that for evaluation of the impairment associated with this injury the only applicable method is related to abnormal range of motion.
Medical Assessor Cameron concluded that the permanent impairment resulting from the right foot injury was 0%.

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

We found that this injury was not caused by the accident.
No assessment of permanent impairment was required.

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

We found that these injuries were not caused by the accident.
No assessment of permanent impairment was required.

Permanent Impairment Conclusions

The Medical Assessor 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

Chapter 3

Pages 103-105

DRE I

Yes

0%

0%

0%

Lumbar spine

DRE I

Yes

0%

0%

0%

Right Shoulder

Table 19 page 59 AMA4 Guides

Table 18, page 58 AMA4 Guides

Yes

2%

0%

2%

Right Knee

Table 62, page 83 AMA4 Guides

Yes

2%

0%

2%

Right Foot

Yes

0%

0%

0%

The Panel found the permanent impairment in relation to the right shoulder soft tissue injury was 2%.
The Panel found the permanent impairment in relation to the right knee soft tissue injury was 2%.
This results in a combined impairment of 4%.

Conclusion

As the Panel has come to a different conclusion to Medical Assessor Neil Berry, the Panel will therefore revoke his certificate.
A new certificate will be issued.

Body part or System	Permanent Yes/No	Current %WPI	%WPI from pre-existing or subsequent causes	%WPI due to motor accident
Cervical spine	Yes	5%	0%	5%
Lumbar spine	Yes	5%	0%	5%
Right Shoulder	Yes	5%	0%	5%
Right Knee	Yes	2%	0%	2%
Right Ankle and Foot	Yes	0%	0%	0%

[2024] NSWPICMP 643

12 September 2024