Insurance Australia Limited t/as NRMA Insurance v Warren

DETERMINATION OF REVIEW PANEL
CITATION:	Insurance Australia Limited t/as NRMA Insurance v Warren [2024] NSWPICMP 167
CLAIMANT:	John William Warren
INSURER:	Insurance Australia Ltd t/as NRMA
REVIEW PANEL
PRINCIPAL MEMBER:	John Harris
MEDICAL ASSESSOR:	David Gorman
MEDICAL ASSESSOR:	Michael Couch
DATE OF DECISION:	21 March 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Compensation Act 1999; accident in April 2013; side swipe collision whilst travelling through roundabout; absence of contemporaneous complaint of right shoulder; early report in claim form of right shoulder injury; Bugat v Fox referred to; claimant re-examined; present findings of lumbar and cervical spine asymmetry not caused by motor accident; assessment of right shoulder; assessments varied over time; Panel satisfied that range of movement consistent; pathology caused by motor accident would deteriorate over time; Held – medical assessment revoked; claimant assessed at 12% impairment.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Medical Assessment – Permanent Impairment WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% The assessment made by the review panel under s 63(4) is as follows: The Review Panel revokes the certificate of Medical Assessor Assem dated 22 May 2023 and issues a new certificate that the following injury caused by the motor accident give rise to a whole person impairment which is GREATER THAN 10%: · right shoulder injury, and · cervical, thoracic and lumbar spine (all resolved).

REASONS

BACKGROUND

Mr John Warren (the claimant) suffered injury as a passenger in a motor accident on
[1] Claimant’s bundle, p 350.
13 April 2013. The claimant was driving through a roundabout when the insured vehicle entered from the left and collided with the side of his car.[1]
Insurance Australia Ltd (the insurer) is liable to pay Mr Warren any damages under the Motor Accidents Compensation 1999 (the MAC Act).
The present dispute between the parties is whether the degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[2]
[2] See ss 57 and 58 of the MAC Act.
Section 44(1)(c) of the MAC Act provides that the State Insurance Regulatory Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.
The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[3]
[3] Clause 1.2 of the Guidelines.
The present application is a review of a medical assessment pursuant to s 63 of the MAC Act. The medical assessment the subject of this review was conducted by Medical Assessor Assem (MA) dated 22 May 2023 (the medical assessment). The MA assessed the permanent impairment caused by the motor accident at 10%.
The MA found that the motor accident caused injuries to the cervical spine, thoracic spine and lumbar spine. The cervical spine and lumbar spine were each assessed at 5% whole person impairment. The MA otherwise found that the motor accident did not cause injuries to the right knee, left knee and right shoulder.
The application for referral of a medical assessment to a Review Panel (the Panel) was made by the claimant within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[4]
[4] Section 63(7) of the MAC Act.
The delegate of the President referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[5]
[5] Section 63(2B) of the MAC Act.
Pursuant to s 63(3) of the MAC Act and Schedule 1, cl 14F(2) of the Personal Injury Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (the Commission).

CONDUCT OF THE REVIEW

Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Merit Reviewer or a Medical Assessor.[6]
[6] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[7]
[7] Rule 128 of the PIC Rules.
The review is by way of new assessment of all matters with which the medical assessment is concerned.[8]
[8] Section 63(3A) of the MAC Act.
The parties filed bundles for the Panel’s consideration.
Further imaging was provided for the Panel’s consideration.
The insurer filed further clinical notes on 27 February 2024. A direction was then sent to parties on 28 February 2024 asking for an explanation as to the relevance of the further material noting the medical examination had been organised for 29 February 2024.
The insurer through its solicitors responded:
“The subpoenaed material consists of the claimant’s updated GP file – which clearly will be of relevance of the Appeal Panel, noting the GP file previously provided is quite dated.”
The insurer’s submission that documents are relevant because they are relevant does not answer our direction and otherwise does not assist the Panel.
The claimant objected to the late documents pursuant to Rule 67(3)(d) of the PIC Rules but then stated that it as “agreeable” to the documents being included for the Panel’s consideration because they are “relevant to the real issues in the proceedings”.
How and why the documents are relevant was not articulated by either party. That the documents are both objected to and then agreement given is otherwise hard to comprehend.
The insurer then filed a further reply to our direction when it identified certain records of relevance when it stated:
“Of particular importance, the updated records include the following:
•GP consultation notes
•X-ray of the right knee dated 30 August 2022.
•Ultrasound of the right shoulder dated 17 July 2023.
•X-ray of the right shoulder dated 17 July 2023.
•CT head and cervical spine dated 11 December 2023.
•X-ray right shoulder dated 11 December 2023.”
We accept that this assisted although there was no attempt to identify why the documents are relevant.
The further documents are admitted. It is unfortunate that the documents were served immediately prior to a medical examination which had been booked for some months where the motor accident occurred in 2013 and the party filing the material failed to explain the relevance of the documents.
We have considered and referred to the further material as part of our considerations.

MEDICAL ASSESSMENT UNDER REVIEW

This review is from the medical assessment when the MA determined that Mr Warren suffered a 10% permanent impairment for the physical injuries caused by the motor accident. The impairment of the lumbar spine and cervical spine were each assessed at 5% and the thoracic spine was assessed at 0%. The MA found that the motor accident did not cause injuries to the right knee, left knee and right shoulder.

STATUTORY PROVISIONS

The provisions of the Civil Liability Act 2002 (the CL Act) apply to the Motor Accidents Injury Act 2017 in determining issues of causation. Particularly ss 5D and 5E of the CL Act.[9] In Raina v CIC Allianz Insurance Ltd[10] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[9] See s 3B(2) of the Civil Liability Act 2002.
[10] [2021] NSWSC 13 (Raina) at [65].
Clause 1.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable in all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.”

SUBMISSIONS

Insurer’s submissions dated 21 March 2017[11]

[11] Insurer’s bundle, p 249.

The insurer noted a motor vehicle accident 1997 to the back and neck and a crush injury in May 2007 involving injury to both knees, neck, left shoulder, right shoulder, both hips, and left foot and ankle.
The insurer accepted that the claimant suffered an injury to the right shoulder but had substantially recovered. It noted that Dr Watson in 2016 assessed the impairment of the right shoulder at 3% whole person impairment. It otherwise noted that there was a further car accident on 24 November 2014 and that any ongoing symptoms were related or attributable to the further accident.
The insurer submitted that there was no injury to the lumbar and thoracic spines and that any injury had resolved in accordance with the opinion of Dr Watson in September 2015. In addition, the insurer noted prior history of chronic back and neck pain in accordance with hospital notes in 2010 and Dr Bodel’s report of October 2010.
The insurer noted that the claimant had a cervical spine injury in 1997 and again in May 2007. In September 2015 Dr Watson observed minor tenderness at C5/6. Prior history included references to chronic neck pain at John Hunter Hospital in March 2010, fracture of the cervical spine at C3/4 as a result of the 1997 motor vehicle accident and Dr Bodel’s opinion in October 2010.
The insurer referred to the substantial body of evidence in relation to prior left knee injury predating the motor vehicle accident. It otherwise referred to the opinion of Dr Watson who accepted that the claimant sustained a soft tissue injury left knee which had resolved.
The insurer referred to the prior injury to the right knee, arthroscopic procedures in December 2007 of both knees which revealed degenerative changes and other complaints to the right knee. It submitted, consistent with the opinion of Dr Watson, that the claimant suffered a soft tissue injury to the right knee which had resolved.

Insurer’s submissions dated 24 August 2018[12]

[12] Insurer’s bundle, p 445.

The insurer submitted that the assessment provided by Medical Assessor Burns was incorrect because he failed to evaluate or estimate any percentage of pre-existing impairment of the neck and back.
The insurer submitted that the assessor failed to address:
-      hospital records dated 28 March 2010;
-      clinical records of the general practitioner (GP) which referred the pre-accident symptoms in the earlier motor vehicle accidents, and
-      report of Dr Bodel dated 20 October 2010.
The insurer noted that on presentation to John Hunter Hospital on 28 March 2010 the claimant reported chronic neck and back pain. The claimant had a fracture at C3/4 as a result of the 1997 motor vehicle accident. It also noted that Dr Bodel referred to an MRI scan of the cervical spine dated 1 November 2008 which revealed degenerative disc disease at C5/6 and C6/7 and that the claimant presented with ongoing pain and stiffness in the neck.

Insurer’s submissions dated 24 January 2019[13]

[13] Insurer’s bundle, p 298.

These submissions principally addressed the psychological evidence noting that the claimant was involved in a subsequent motor vehicle accident on 24 November 2014.
The insurer submitted that the claimant was suffering from an underlying mental health disorder over an extensive period time having been involved in multiple accidents that predate the motor accident. The insurer submitted that any exacerbation of the underlying psychiatric condition caused by the motor accident had resolved by the time of the subsequent accident in November 2014.

Insurer’s submissions dated 24 May 2021[14]

[14] Insurer’s bundle, p 451.

These submissions noted that the claimant had previously been assessed by Medical Assessor Burns on 19 July 2018, that decision was subject of the review application which resulted in the matter being referred back to the Commission and a requirement that the claimant be assessed afresh.
The insurer, noting the time that had passed since the previous assessment, referred to subsequent records.
We do not intend to summarise the lengthy submissions. However, we note that the insurer referred to the report of Dr Schwarzer dated 1 November 2008 which revealed degenerative disc disease in the lower lumbar spine, spina bifida occulta in the lower thoracic spine and mild degenerative disc disease at all levels and severe in the lower cervical spine.
The insurer referred to an offer of employment by Got It Express with the claimant due to commence employment on 12 July 2017. Subsequent wages summaries showed earnings in the 2017/2018 financial year.
The insurer highlighted the opinion of Dr Bodel who, whilst he did not provide an impairment assessment, made findings of examination which included range of motion readings and submitted that there was objective evidence of pre-existing impairment.

Insurer’s submissions dated 3 August 2022[15]

[15] Insurer’s bundle, p 538.

The insurer noted that following the decision of the Supreme Court, the matter was referred back with the claimant reassessed by Medical Assessor Hollo in a certificate dated 5 October 2021. It was suggested that the “PIC has elected to abandon the certificate, though at this time has not made a full determination to this effect”.
The insurer referred to the records of John Hunter Hospital which referred to injuries on 21 May 2007 (both legs and chest), 5 October 2009 (shoulder, chest and bilateral knee pain) and 22 January 2010 (left shoulder and cervical spine).
The insurer referred to the Mater Hospital notes which included references to complaints in 1986 (left knee), 1987 (cervical spine), 1997 motor vehicle accident (right knee, right hip and left elbow), 2002 (assault – injury to head, left arm, both hands and abdomen) and various other injuries.
The insurer referred to subsequent injuries including the November 2014 accident when the claimant was hit on the right shoulder and in December 2018.
The insurer referenced the assessment undertaken by Medical Assessor Hollo to the extent that it may be relevant of a finding of no injury to various body parts and a finding that the right shoulder and thoracic spine injury had resolved.

Insurer’s submissions dated 6 September 2023[16]

[16] Insurer’s bundle, p 851.

The insurer submitted that assessment was at the time of examination and that Medical Assessors were not bound by other opinions and is required to form their own opinion.
The insurer submitted that the MA provided a comprehensive and thorough certificate was critical of the records of the GP. Considering the extensive documentation and the lengthy history it would be overly onerous to require the MA to summarise or address the extensive material.

Claimant’s submissions dated 21 August 2023[17]

[17] Claimant’s bundle, p 342.

These submissions were filed seeking leave to review the medical assessment.
The claimant submitted that the MA failed to consider:
-      Medical Assessment Certificate of Medical Assessor Ryan dated 16 June 2015;
-      Medical Assessment Certificate of Medical Assessor Ward dated 22 June 2015, and
-      personal injury claim form dated 29 April 2013.
The claimant noted that there was no reference to the right shoulder in the clinical notes of Dr McQualter dated 22 April 2013. However, the right shoulder was mentioned in the claim form. The conclusion by the MA that the right shoulder came on later is incorrect. The claimant referred to the clinical note of the GP dated 6 June 2013 which indicated that the right shoulder pain was still present.
The claimant submitted that Medical Assessor Ward and Medical Assessor Ryan both concluded that there was a causal link between the motor accident and injury to the right shoulder. Reference is made to the reasons provided by Medical Assessor Ryan that there was a delay in diagnosis of the right shoulder based on the multiplicity of symptoms and the proximity the accident with a potentially life-threatening condition of myocardial infarction.
The claimant noted that he underwent a right shoulder procedure in 2016 paid by the insurer. The insurer then accepted the right shoulder injury, the need for physiotherapy and operative treatment was causally related to the motor accident.
The claimant submitted that the subsequent right shoulder injuries and full range of motion post-surgery in 2016 were irrelevant to the issue of causal link. It submitted that subsequent injuries and a good outcome from surgery, which was not admitted, has no bearing on causal link of the original injury.

Claimant’s submissions dated 13 September 2023[18]

[18] Claimant’s bundle, p 346.

These submissions in reply noted that the MA failed to assess the right shoulder at all on the basis it was not injured in the motor vehicle accident. The claimant submitted that the issue that the motor accident caused right shoulder injury and an assessment of permanent impairment undertaken at which point the requirements in the guidelines would have to be followed and become relevant to the assessment.
In relation to the matter having a lengthy history, the claimant noted that a complaint had been lodged to the Commission. It was submitted that many of the delays have been outside of the claimant’s control, and it would be unfair to dismiss a legitimate request for review on the basis that the claimant already been subject to unfair, costly and unnecessary delays.

EVIDENCE

Pre-existing conditions

An X-ray of the left knee dated 3 April 1986 showed marked irregularity of the superior pole of the left patella which were described as long-standing. Comparison view of the right knee showed normal appearance.[19]
[19] Insurer’s bundle, p 830.
A cervical spine X-ray dated 28 April 1990 was reported as normal.[20]
[20] Insurer’s bundle, p 824.
A cervical spine X-ray dated 23 December 1997 showed no evidence of fracture or vertebral displacement but noted restricted range of motion presumably reflecting muscle spasm.[21]
[21] Insurer’s bundle, p 823.
A CT scan of the cervical spine dated 21 May 2007 noted a clinical history of an old cervical spine fracture and referred to an accident that day when heavyweight fell on the claimant who presented with neck pain. The scan showed degenerative changes with no acute injury.[22]
[22] Insurer’s bundle, p 578.
The MRI scan of the left shoulder dated 28 May 2007 showed a high-grade partial tear of the subscapularis tendon with associated adjacent muscular injury, distal long head of biceps tendinopathy and otherwise minor posterior muscular injury.[23]
[23] Insurer’s bundle, p 575.
The claimant underwent arthroscopic acromioplasty and open subscapularis repair of the left shoulder in July 2007.[24] By November 2007 Dr Petrelis noted the left shoulder was making good progress however both knees were playing up with cracking and at times giving way.[25] Bilateral arthroscopic procedures of both knees were performed in December 2007 with progress noted to be very slow in January 2008.[26]
[24] Claimant’s bundle, p 100.
[25] Claimant’s bundle, p 102.
[26] Claimant’s bundle, p 104.

An MRI scan of the left knee dated 5 November 2007 showed mild left knee effusion with no other significant findings.[27]
[27] Insurer’s bundle, p 60.
In November 2007 Dr Petrelis noted that both knees were “cracking” and at times giving way and opined there was chondral changes on the back of the left patella and what appeared to be a lateral meniscal tear. Bilateral knee arthroscopies were recommended.[28]
[28] Insurer’s bundle, p 162.
In a report dated 28 February 2008, Dr Petrelis, noted the industrial accident involving a crush injury to both legs with debrided and subsequent bilateral knee arthroscopy. The doctor opined there was nothing further surgically to be done but “pain still seems to be an issue”.[29]
[29] Insurer’s bundle, p 150.
An MRI scan dated 1 November 2008 noted a clinical history of head and neck pain.[30] The scan showed some stenosis of the exit foraminae in the lower cervical region, most marked at the C6/7 level. The MRI scan of the lumbar spine noted moderate degenerative disc disease at L3/4.[31]
[30] Insurer’s bundle, p 567.
[31] Insurer’s bundle, p 569.
An X-ray of the cervical spine dated 22 January 2010 showed degenerative osteophytes at multiple levels and particularly C5/6 and C6/7 with the comment that the features were in keeping with degenerative disease.[32]
[32] Insurer’s bundle, p 565.
In 2010 Dr McQualter, GP noted the claimant took 20 Nurofen per day and a “shot of morphine every so often” due to a fractured cervical spine from a motor accident in 1997.[33]
[33] Claimant’s bundle, p 359.
In September 2010 Associate Professor Robertson, psychiatrist, diagnosed the claimant with post-traumatic stress disorder.[34]
[34] Claimant’s bundle, p 52.
in a report dated 20 October 2010,[35] Dr James Bodel, orthopaedic surgeon, opined that the claimant was left with significant ongoing disabilities as a consequence of the 2007 injury particularly in the regions of the left shoulder, back, neck and the left knee.
[35] Insurer’s bundle, p 219.
In September 2011 the GP noted the left knee gave way with pins and needles on both sides of the ankle and leg associated with back pain.[36]
[36] Claimant’s bundle, p 361.
The X-rays of both knees dated 4 October 2011 showed mild degenerative changes in both knees involving the lateral tibiofemoral and patellofemoral compartments.[37]
[37] Claimant’s bundle, p 625.
A CT scan of the lumbar spine dated 4 October 2011 noted a clinical history of a painful left lower limb. The scan showed a L4/5 disc bulge with impingement of the exiting left L4 nerve root.[38]
[38] Insurer’s bundle, p 558.
In early March 2013 the claimant presented to the GP with left-sided chest pain radiating down the left arm to the fingers.[39] The claimant was diagnosed with a myocardial infarction and underwent a coronary artery stent of the left descending artery.[40]
[39] Claimant’s bundle, p 361.
[40] Claimant’s bundle, p 568.

Contemporaneous medical evidence

The GP clinical note dated 22 April 2013 referred to the motor accident resulting in pain in the back between the shoulder blades, low back and hips.[41] The medical certificate issued by the GP on that day certified soft tissue injuries to the thoracic and lumbar spines.[42]
[41] Claimant’s bundle, p 76.
[42] Insurer’s bundle, p 13.
The claim form dated 29 April 2013 referred to the motor accident causing injuries to the “left leg, whiplash injury, soft tissue injury to the back, ribs and chest and right shoulder”.[43]
[43] Claimant’s bundle, p 354.
The GP note dated 6 June 2013 referred to “R shoulder is still sore following MVA”.[44] On 23 July 2013 GP noted that the claimant had numbness in the right hand since the car accident and had dropped something that morning.
[44] Claimant’s bundle, p 76.
In a report dated 6 July 2013 the GP opined that the claimant had suffered injuries to the right shoulder, cervical spine and the median nerve compression the right-hand caused by the motor accident.[45]
[45] Claimant’s bundle, p 77.
An X-ray of the right shoulder dated 12 July 2013 showed normal alignment. The ultrasound of the same date showed subacromial bursitis with impingement and areas of bursal fraying involving the mid distal supraspinatus.[46]
[46] Claimant’s bundle, p 296.
On 23 July 2013 the GP referred the claimant for physiotherapy of the right shoulder in respect of the injury suffered in the motor accident.[47]
[47] Claimant’s bundle, p 299.
The claimant underwent a right subacromial bursa injection on 15 August 2013.[48]
[48] Claimant’s bundle, p 72.
On 19 August 2013 the claimant commenced physiotherapy treatment for the cervical spine[49] and right shoulder.[50]
[49] Claimant’s bundle, p 292.
[50] Claimant’s bundle, p 327.

Subsequent evidence

The MRI scan of the right shoulder dated 20 May 2014 showed changes within the supraspinatus tendon extending for approximately 2.7cm and other pathologies.[51]
[51] Claimant’s bundle, p 73.
On 3 June 2014 the GP noted the claimant’s shoulder was playing up working as a storeman as he was required to unload 20kg concrete mixes from trucks.[52]
[52] Claimant’s bundle, p 370.
In August 2014 Dr Petrelis noted the motor accident caused a right shoulder injury. Imaging of the shoulders suggest a partial tear of the supraspinatus and possible SLAP injury.[53] The doctor diagnosed impingement with early arthritic changes and recommended arthroscopic decompression.
[53] Claimant’s bundle, p 110.
On 10 January 2015 the GP noted that the claimant had another injury to the right shoulder.[54] A claim form dated 17 February 2015 referred to a motor vehicle brushing against the claimant’s right bicep causing a right shoulder injury.[55]
[54] Claimant’s bundle, p 372.
[55] Insurer’s bundle, p 244.
On 2 April 2015 the GP noted the claimant had a lot of pain after delivering timber and fibro sheets and that he had to lift bags of cement.[56]
[56] Claimant’s bundle, p 372.
A report from the GP dated 7 May 2015 noted the claimant had been a patient since 6 April 2010 and suffered a further injury on 8 November 2014 although first consultation did not occur until 10 January 2015.[57] The claimant presented with rotator cuff injury with impingement due to the motor accident and not injury sustained on 28 November 2014.
[57] Claimant’s bundle, p 284.
A claim form dated 27 October 2015 reported that the claimant started working for the employer in September 2013 and suffered injury to the right shoulder and depression and anxiety following an injury on 28 November 2014.[58]
[58] Claimant’s bundle, p 582.
In a further report dated 23 November 2015, the GP opined that the incident of 28 November 2014 was an exacerbation of shoulder pain only and that this did not cause a further progression of the original rotator cuff injury sustained in the motor vehicle accident in 2013.[59]
[59] Claimant’s bundle, p 288.
An X-ray and ultrasound dated 24 February 2016 showed chronic tendinopathy of the subscapularis and supraspinatus without full thickness tears.[60]
[60] Claimant’s bundle, p 75.
In February 2016 Dr Petrelis was concerned about the cause of recent chest pain noting that the claimant continued to proceed with impingement type problems.[61]
[61] Claimant’s bundle, p 115.
A WorkCover certificate dated 30 April 2016 noted injury on 28 November 2014 to the right shoulder and upper arm aggravating rotator cuff injury sustained in 2013. The certificate noted that the effects of the November 2014 injury had ceased.[62] The certificate referred to the claimant suffering injury when struck by wing mirror while directing traffic at work.[63]
[62] Claimant’s bundle, p 273.
[63] Claimant’s bundle, p 277.
The claimant underwent right shoulder surgery by way of subacromial decompression and biceps tendonesis on 10 May 2016. The arthroscopy revealed the chondral surfaces were in good condition, subscapularis was intact, biceps had a tear as it exits the joint into the bicipital groove with a frayed labrum at its insertion with a Type II SLAP tear.[64]
[64] Claimant’s bundle, p 117.
In a report dated 15 September 2016 the physiotherapist noted there was full range of motion of flexion and some catching on abduction at about 90 degrees which was fairly normal at that stage. The physiotherapist opined that the claimant was very well motivated with current lifting limited to 2kg.[65]
[65] Claimant’s bundle, p 562.
In a report dated 10 November 2016, Dr Petrelis noted the claimant had strained his shoulder that day lifting an 18kg tarp to cover a load but did not believe the claimant had done “anything dramatic to his shoulder” and that “it could be just subtle”.[66]
[66] Claimant’s bundle, p 124.
In a report dated 29 January 2019, Dr Petrelis stated there was nothing further that he could offer regarding the right shoulder.[67]
[67] Claimant’s bundle, p 536.
In March 2020 Dr Ghabrial, orthopaedic surgeon, noted that the MR arthrogram showed a full tear of the supraspinatus tendon. The MRI scan of the neck was “almost clear apart from some minor osteophyte at the C5/6 segment with minimal foraminal narrowing”.[68]
[68] Claimant’s bundle, p 227.
An X-ray and ultrasound of the right shoulder dated 18 May 2020 showed degenerative changes in the acromioclavicular joint, with no rotator cuff tendon tendinopathy or tear.[69]
[69] Claimant’s bundle, p 470.
Motor nerve conduction studies dated 15 June 2020 showed evidence of moderate severe median neuropathy of the right wrist consistent with moderate severe right carpal tunnel syndrome.[70]
[70] Claimant’s bundle, p 231.
An X-ray and ultrasound of the right shoulder dated 17 July 2023 showed chronic rotator cuff and biceps tendinopathy with no acute tear and extensive osteophytosis of the acromioclavicular joint.[71]
[71] Insurer’s late bundle, p 36 and p 38.
The CT scan of the cervical spine dated 11 December 2023 showed fused C5/6 level with prominent disc osteophytes at C6/7.[72]
[72] Insurer’s late bundle, p 41.
An X-ray of the right shoulder dated 11 December 2023 showed no change from the previous X-ray.[73]
[73] Insurer’s late bundle, p 46.

Qualified opinions

Dr Tania Rogers, physician, was qualified by the insurer and provided a report dated 4 August 2014.[74] The doctor opined that the motor accident caused a soft tissue injury to lumbar spine and a soft tissue injury to the thoracic spine which had resolved.
[74] Insurer’s bundle, p 482.
Dr Rogers noted there was no contemporaneous evidence of a right shoulder injury and opined, based on the available documentation, that the claimant did not suffer a right shoulder injury. It is noted that the doctor did not address the contents of the claim form.
Associate Professor Kleinman, orthopaedic surgeon, was qualified by the claimant and provided a report dated 2 September 2014.[75] The doctor noted that four weeks prior to the motor accident, the claimant suffered a myocardial infarction and was admitted to the John Hunter Hospital for treatment and insertion of a stent into the coronary artery.
[75] Claimant’s bundle, p 11.
The doctor obtained a history that during the motor vehicle accident the claimant’s knees hit the dashboard and his right shoulder hit the side door pillar.
Associate Professor Kleinman opined that the claimant suffered injury to the neck and low back, an acute injury to the rotator cuff of the right shoulder and entrapment neuropathy of the ulnar nerve in the right arm with impairment of sensation in the right hand and ongoing pain in the knees. The doctor recommended further radiological investigations of the knee which did not result in any permanent impairment suspecting that the claimant had sustained patella femoral damage as well as possible osteoarthritic changes.
The doctor assessed the cervical spine at 5%, the back at 5%, the right shoulder at 11% whole person impairment, and the left and right knees separately at 2% whole person impairment.
Dr David Maxwell, orthopaedic surgeon, was qualified by the insurer and provided a report dated 12 August 2015[76] which related to the effects of the November 2014 incident. The doctor opined that the claimant sustained a minor abrasion to his right forearm which did not result in any permanent impairment. Dr Maxwell opined that the claimant did have reduced range of motion in both shoulders due to the previous motor vehicle accident.
[76] Insurer’s bundle, p 269.
Associate Professor Kleinman provided a further report dated 16 May 2017.[77] The doctor opined that the current symptoms were all attributable to the motor vehicle accident because “all of his problems appeared to have commenced then” and that the right shoulder injury on 28 November 2014 was a temporary aggravation. The right shoulder injury was assessed at 11% whole person impairment, the left shoulder at 5% whole person impairment, the back at 0%, the left leg at 2% and the right leg at 11%.
[77] Insurer’s bundle, p 253.
Dr John Watson, orthopaedic surgeon, was qualified by the insurer and provided a report dated 11 September 2015.[78] Dr Watson opined that the right shoulder symptoms came on “two months after the incident of 13 April 2013”.
[78] Insurer’s bundle, p 20.
It is difficult to reconcile the doctor’s opinion with the reference of right shoulder injury in the claim form. The doctor did not address that complaint.
Dr Watson opined that the claimant suffered some soft tissue injuries which would have resolved within a very short space of time and that the present symptoms related to the 2007 incident and previous accidents.
Dr Watson opined that there was limitation of movement of the right shoulder in the order of 5% permanent impairment although he opined that the claimant’s effort was suboptimal.
Dr Watson provided a further report dated 16 September 2016.[79] The doctor noted that the claimant sustained a further right shoulder injury on 8 November 2014.
[79] Insurer’s bundle, p 30.
The doctor noted that the claimant had some limitation of movement of the right shoulder and opined that effort was suboptimal. Dr Watson appeared to accept that the present symptoms appeared to be directly related to the motor vehicle accident although it was described as minor. The right shoulder was assessed at 3% whole person impairment.
Dr Frank Machart, orthopaedic surgeon, was qualified by the insurer and provided a report dated 20 May 2021.[80] The doctor opined that the claimant suffered soft tissue injuries to the right shoulder, cervical spine, lumbar spine into both knees with the physical aspects of injury complicated by an element of pain behaviour.
[80] Claimant’s bundle, p 338.

OTHER MEDICAL ASSESSMENTS

Medical Assessor Ryan issued a certificate dated 16 June 2015 when he found that a reconstruction of the right rotator cuff related to the injuries caused by the motor accident and reasonable and necessary in the circumstances.[81]
[81] Claimant’s bundle, p 26.
The Medical Assessor noted that the claimant displayed a “painful arc” of the right shoulder on 6 June 2013 and otherwise had not suffered any new injury since the motor vehicle accident.
Medical Assessor Ward issued a certificate dated 22 June 2015 when he found the proposed future provision of eight sessions of physiotherapy treatment to the right shoulder related to the injuries caused by the motor accident but were not reasonable and necessary in the circumstances.[82]
[82] Claimant’s bundle, p 38.
The Medical Assessor then noted that reasonable explanations were provided explaining the absence of record of contemporaneous complaint to the right shoulder. These explanations were set out in the Medical Assessment Certificate and included the prioritised assessment of a heart condition given the recent surgery, circumstances where an injury might have been overlooked due to other injuries, the claimant’s complex pain history with multiple injuries and the presumption that the clinical records of the GP may not be a comprehensive record of the patient doctor interaction. The Medical Assessor noted the absence of commentary by Dr Bellamy cardiologist regarding musculoskeletal symptoms is not prejudicial as the doctor makes no reference to the significance of the motor accident.
A review panel certificate dated 22 June 2018 concluded that the degree of permanent impairment for psychological injury was not greater than 10%. The Panel assessed the degree of permanent impairment due to the motor vehicle accident at 0% and the motor vehicle accident in November 2014 at 0%.[83]
[83] Insurer’s bundle, p 475.
Medical Assessor Hollo issued a certificate dated 5 October 2021 when it was concluded that the claimant suffered injury to the right shoulder and thoracic spine which had recovered. The Medical Assessor opined that other body parts were not injured because an increase in symptoms apparently did not constitute an injury.[84]
[84] Insurer’s bundle, p 838.

Judicial review proceedings

A decision of the Supreme Court quashed the assessment provided by Medical Assessor Burns which assessed the claimant’s impairment at 11% based on soft tissue injuries to the cervical spine, thoracic spine, lumbar spine and right shoulder.[85] It was noted that the cervical spine was assessed at 5% and the right shoulder at 6%. Accordingly, the Court noted that the findings in respect of the knees, lumbar and thoracic spine would not alter the assessment in any material way.
[85] Insurance Australia Ltd v Warren [2019] NSWSC 1126 (Warren).
The Court did not accept that there was error by the previous assessor in relation to the assessment of the right shoulder injury and whether it had “healed by the time of the second accident”.
The Court noted the history recorded by the Medical Assessor that the previous injuries had recovered by “approximately 75% better but never recovered completely” by the time of the motor accident. It was noted, applying the decision of IAG Ltd Chahoud[86] that clause 1.31 of the Guidelines required that there be evidence that symptoms existed at the time of the accident as opposed to evidence being dated at the time of the accident. The error in that case arose because the proper officer incorrectly focused upon the timing of the medical record as distinct from the existence of the symptoms.
[86] [2019] NSWSC 767.
The Court concluded:[87]
“In light of the evidence before him of pre-existing injury, and Mr Warren’s own oral history which he claims to have only recovered 75% after those injuries, the absence of any explanation as to why there is not considered to be evidence of pre-existing injury at the date of the accident does not meet the standard of reasons outlined in Wingfoot at [55].”
[87] Warren at [102].
An argument that there was inconsistency between the findings of Dr Watson and those of the Medical Assessor amounting to inconsistency that should be put to the claimant was rejected. The Court noted:[88]
“It is conceivable, and even expected, the claimant might present to a medical assessor with a variation in range of movement from the presentation months or, as in this case, years earlier. In my view, read as a whole and fairly, it can be implied from the medical assessor’s reasons that he did not believe there was an inconsistency in the severity of Mr Warren’s injuries which was not explicable, such that it needed to be brought to Mr Warren’s attention.”
[88] Warren at [114].

EXAMINATION

The claimant was examined by both Medical Assessors. The examination report is as follows.
“Medical Assessors David Gorman and Michael Couch examined Mr Warren in the PIC Rooms, 1 Oxford St, Darlinghurst on 29 February 2024 from 4.00 to 5.00pm.
Who attended the assessment
Mr Warren attended the appointment alone.
History
Pre-accident medical history and relevant personal details
Mr Warren is a 57-year-old right hand dominant man who is a heavy diesel mechanic by trade. He has worked as a truck driver for the past 40 years. At the time of the subject motor vehicle accident, he was employed by Gotit Express as a full-time truck driver for a six-year period. His job required him to drive a semi-trailer from Tamworth to Newcastle and back.
After the subject motor vehicle accident, he returned to full time work as a truck driver in 2014.
He currently resides in his truck which he cleans from the inside and gets professional cleaning for the outside.
History of the motor accident
Mr Warren informed us that he was 75% better from his previous injuries before sustaining further injuries in the subject motor vehicle accident. He was unable to be more specific in terms of symptoms present immediately prior to the motor accident.
He reported that he could go beach fishing and cast a line. He said that he could go TenPin bowling. He said that he could train border Collies to herd cattle onto his truck.
On 13 April 2013, while transporting palletised freight, Mr Warren was driving through a roundabout at an intersection when a vehicle on his left failed to give way. The vehicle hit the front corner of his truck causing it to lift before coming down onto the ground. He estimated that the other vehicle was travelling at 90 km per hour. The truck was written off.
Despite being restrained by his seatbelt, Mr Warren reports that his head hit the overhead console and his knees struck the dashboard. He says that he was catapulted forward. His seat broke.
An ambulance attended the scene as he has a history of ischaemic heart disease. He was released to go home after an ECG was reported to be normal.
He was driven home by his wife.
History of symptoms and treatment following the motor accident
He initially had a headache – he reports that he may have lost consciousness for a short period. He had ‘numbness’ over the thighs. His neck and low back were aggravated. He reported that there was a seat belt bruise across his right shoulder.
His main concern initially was his legs. He rested at home.
He did not consult Dr McQualter until 22 April 2013 (nine days after the motor vehicle accident). At that time there was pain in his back between his shoulder blades, lower back and hips. There was no mention of a distinct injury to his right shoulder or knees.
Mr Warren reported that he had trouble lying in bed because of the back and right shoulder pain.
The next consultation with Dr McQualter was on 6 June 2013 (nearly two months later) when he presented with pain in his right shoulder after the subject motor vehicle accident. Dr McQualter completed a questionnaire on 17 June 2013 noting that his right shoulder symptoms were first reported on 22 April 2013 and he suspected a rotator cuff injury.
An ultrasound examination of his right shoulder on 12 July 2013 showed subacromial bursitis with impingement. He was given an ultrasound guided cortisone injection to his right shoulder on 16 August 2013 that provided some relief.
A further injection on 6 March 2014 did not help so much he recalled.
In 2016 Dr Petrelis performed right shoulder arthroscopy with rotator cuff repair and biceps tenodesis. He said that it ‘took 3 years to get surgery as the insurer was slow to approve it’.
On 14 July 2017, Dr Petrelis noted that Mr Warren had a full range of motion of his right shoulder.
Current symptoms
Mr Warren reports intermittent neck discomfort. There is a cracking sensation with certain movements. He gets occasional ‘migraine’ following neck pain.
He has had constant pain in the anterior aspect of his right shoulder that is worse with any activities above shoulder level.
He cannot do tasks such as change a wheel or change a battery in his truck. He cannot throw a tennis ball or cast a fishing rod now. He needs to sleep propped up by pillows.
He has pain across the left side of his back and interscapular area. There were no radicular symptoms.
His left leg can ‘jump’.
There is sometimes a numbness sensation involving his right thigh and left calf.
He reports constant pain involving both knees anteriorly. The left knee becomes swollen – the right knee can be swollen on occasions. He is ‘hobbling’ he reports. He is to see his GP on 13 March 2024.
Current and proposed treatment
Mr Warren takes anti-hypertensives and Repatha (an injection every 4 weeks to lower cholesterol).
Clinical Examination
General presentation
Mr Warren walked in ‘shuffling’ because of his knee pain.
He sat comfortably throughout the interview. His height was 173cm and he weighed 99kg.
He was well muscled with a protuberant abdomen.
Cervical spine (cervicothoracic)
He walked with the neck slightly flexed forward.
He reported tenderness on palpation from the mid cervical spine down.
There was no muscle guarding or spasm.
In forward flexion, he had a normal range of motion. Extension was one third of normal range. Rotation to the left was one half normal and to the right better at 2/3 normal. Lateral flexion to the right was 2/3 normal and to the left ½ normal.
He was noted to have soft callus formation in both hands.
His reflexes were brisk and symmetrical. Power, tone and sensation was normal.
Thoracic spine (thoracolumbar)
There was mild tenderness on palpation over T5/T6.
There was winging of the right scapula. The cause of the appearance was unclear. There was no associated sensory change.
Thoracolumbar movements were limited by pain across his lower back – rotation to the left caused pain in the base of the spine while rotation to the right did not cause discomfort. There was no muscle guarding or spasm.
Lumbar spine (lumbosacral)
There was tenderness on palpation over L5.
There was limited movement of the lumbar spine. It was splinted on forward flexion with movement arising from the hips. Lateral flexion to the left was to one half normal and to the right was normal.
The right calf was 40cm in circumference and the left calf 39cm.The right thigh was 52cm in circumference and the left thigh 50cm.
His reflexes were brisk and symmetrical. Power, tone and sensation was normal.
Upper extremity
He has a 3cm healed longitudinal surgical scar over his right shoulder and 8cm scar over his left shoulder. There was tenderness bilaterally, but he had good shoulder contours. Active range of motion was as follows.
He could reach the buttock on the right and on the left the lumbar spine.
He stated that he could drive a truck with his arms by his side but could not drive a car.
Range of movement was assessed by goniometer. The measurements were checked on three occasions in accordance with the Guidelines to ensure that the measurements were accurate and the claimant was consistent.

Shoulder Movements

Active ROM Measured

RIGHT

Active ROM Measured

LEFT

Flexion

60°

110°

Extension

30°

40°

Adduction

0°

20°

Abduction

60°

90°

Internal Rotation

40°

70°

External Rotation

80°

90°

Lower extremities
There was a 10-degree valgus deformity bilaterally of the knees.
There was mild swelling of the left knee.
There was retro-patellar crepitus on the left and right sides.
On the right flexion was 100 degrees and her was 5 degrees short of full extension.
On the left flexion was only to 80 degrees with extension 20 degrees short of full extension.
There was no ligamentous instability.
There was a 12cm scar on the left calf and a 10cm scar on the right thigh – these were from old injuries.”

FINDINGS

The review is a new assessment of all matters with which the medical assessment is concerned.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[89] and Insurance Australia Ltd v Marsh.[90]
[89] [2021] NSWCA 287 at [40], [41] and [45].
[90] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the extensive reasons provided by the Medical Assessors and adds the following reasons.

Bilateral knee injury

The Panel is not satisfied that the claimant suffered injuries to the knees.
There is no recorded contemporaneous complaint of injury to either knee. The absence of complaint is relevant but not determinative of the issue of causation: Norrington v QBE Insurance (Australia) Ltd;[91] AAI Ltd v McGiffen.[92]
[91] [2021] NSWSC 548 (Norrington).
[92] [2016] NSWCA 229 at [64]-[66].
An inclusion of injury in the claim form is relevant to establishing causation: Bugat v Fox.[93] Similarly, the omission of any reference to a body part must also be relevant, but not determinative, of the causation issue. The claimant did not report injury to either knee in the claim form.
[93] [2014] NSWSC 888 at [31]-[32].
The claimant was suffering from chronic bilateral knee conditions, had undergone bilateral knee surgeries, and had ongoing crepitus prior to the motor accident. Even if there was a striking of the knees into the dash, that would have produced mild temporary pain with no consequences.
The complaint to Associate Professor Kleinman in 2014 of bilateral knee pain is consistent with the chronic changes present prior to the motor accident.
We do not accept that there was any injury to either knee caused by the motor accident. The brief impact of the knees into the dash would otherwise have not caused any structural changes and only resulted in transient symptoms of no ongoing consequence. This conclusion is consistent with the absence of complaint for a significant period following the motor accident of injury to either knee.

Thoracic spine

There is contemporaneous complaint of thoracic spine pain following the motor accident. The nature of the motor accident is likely to have caused soft tissue injury.
In August 2014, Dr Rogers opined that the thoracic spine injury had resolved. In September 2014 Associate Professor Kleiman, qualified by the claimant, did not report any thoracic spine symptoms.
In September 2015, Dr Watson opined that the thoracic spine injury had resolved.
We accept that the nature of the motor accident could and did cause a soft tissue thoracic spine injury. The medical evidence in 2014 and 2015 indicates that this condition resolved which is likely given our view that the injury to this body part was modest and did not cause any pathological changes.
The claimant’s loss of movement in the thoracic spine in 2024 has no medical basis and has no relationship to the soft tissue injury caused by the motor accident in 2013.

Lumbar spine

The claimant has a significant pre-accident history of lumbar spine symptoms, which on his own account, was present at the time of the motor accident.
The motor accident would likely to have caused soft tissue injury to the lumbar spine noting the lower part of the back is protected from any type of whiplash effect from the impact. We cannot identify any aggravation of pre-existing pathology caused by the motor accident.
Further, the pre-existing pathology would continue to cause symptoms and deteriorate over time. This conclusion is supported by the histories which show that the claimant was involved in heavy lifting in 2014 and 2015 and otherwise driving trucks throughout the period since the motor accident.
In our view, the soft tissue to the lumbar spine would have resolved which is consistent with the opinion expressed by Dr Watson in 2015. We also note that Dr Kleinman, qualified by the claimant, expressed the view in 2017 that the claimant had no rateable assessment of the lumbar spine.
The claimant’s present symptoms are likely due to the pre-existing pathology which would have deteriorated over time.
We do not accept, in light of the above matters, that there was a material contribution by the motor accident to the present signs of dysmetria present in the lumbar spine. We conclude that the present symptoms in the lumbar spine are unrelated to the motor accident.

Cervical spine

The claimant was suffering from significant pre-accident symptoms and degenerative changes in the cervical spine. He accepted that the pre-accident condition had improved by 75% prior to the motor accident.
Our opinion is that the extensive pre-existing changes would continue to deteriorate and cause ongoing problems from and in the cervical spine.
The motor accident would likely to have caused soft tissue injury to the cervical spine. We did not identify any aggravation of pre-existing pathology caused by the motor accident.
In our view the soft tissue injury to the cervical spine would have resolved over time. There is no plausible medical reason why symptoms from a soft tissue injury would be present some 11 years later.
The extensive pre-existing pathology would continue to cause symptoms and deteriorate over time. These pre-existing changes otherwise explain the present symptoms including the signs of dysmetria.
We do not, on the balance of probabilities, attribute any of the present cervical symptoms to the motor accident. Accordingly, we are not satisfied that the cervical spine injury caused any assessable impairment.

Right shoulder

The right shoulder is not mentioned in the contemporaneous notes as being injured in the motor accident. An absence of complaint is relevant but not determinative of the issue of causation: Norrington v QBE Insurance (Australia) Ltd;[94] AAI Ltd v McGiffen.[95]
[94] [2021] NSWSC 548 (Norrington).
[95] [2016] NSWCA 229 at [64]-[66].
The right shoulder is mentioned in the claim form as being injured in the motor accident.[96]
[96] Claimant’s bundle, p 354.
Some medical practitioners have commented on causation as not being established based on the absence of contemporaneous complaints without acknowledging the reference in the claim form. An inclusion of injury in the claim form is relevant to establishing causation: Bugat v Fox.[97] Similarly, the omission of any reference to a body part is relevant, but not determinative, of the causation issue. The claim form had greater evidentiary value as it was completed within three weeks of the motor accident.
[97] [2014] NSWSC 888 at [31]-[32].
The explanation provided by Medical Assessor Ward of the reasons for the absence of complaint in the notes is convincing and we agree with them.[98] With that explanation is the additional support of injury from the inclusion in the claim form of the reference to right shoulder injury. We also note that the GP provided a report dated 6 July 2013 concluding that there was a right shoulder injury.[99] It was that GP who provided the initial clinical note which did not refer to right shoulder symptoms.
[98] See [124] herein.
[99] Claimant’s bundle, p 76.
It is medically plausible that the claimant could have damaged the claimant’s rotator cuff by direct trauma from an impact of the right shoulder into the internal side of the truck from this type of collision. This was likely to have caused the partial tear of the supraspinatus and is consistent with the diagnosis made by Dr Petrelis in 2014.
Considering the early complaint recorded in the claim form, we are satisfied on the balance of probabilities that the motor accident caused injury to the right shoulder. Noting that the right shoulder was basically symptom free with no investigations prior to the motor accident, we accept that the motor accident caused a right shoulder injury in the form of rotator cuff tear.
We agree with the opinion expressed by Medical Assessor Ryan, that the motor accident caused the need for surgery. Whilst surgery would alleviate symptoms, the underlying pathology by way of rotator cuff tear exists and would deteriorate over time. This conclusion is consistent with the recent scans of the right shoulder.[100]
[100] See [103] herein.
We note that there is evidence of subsequent right shoulder injury in 2014 and in 2018. We agree with the opinion expressed by Dr Breit that the effects of that 2014 injury to the right shoulder was modest and of no long-term consequence. We accept that the 2018 injury was insignificant and consistent with a minor exacerbation causing pain with no ongoing consequences.
Clause 1.34 of the Guidelines was discussed by Wright J in Slade v Insurance Australia Ltd.[101] His Honour determined that the principles discussed by Malcolm CJ in State Government Insurance Commission v Oakley[102] apply.
[101] [2020] NSWSC 1031 (Slade).
[102] (1990) Aust Torts Rep 81-003.
We do not accept that there should be any deduction for either subsequent incident as we considered these minor events with right shoulder symptoms and pathology well established prior to the incidents. The claimant’s right shoulder condition caused by the motor accident otherwise made him susceptible to these exacerbations.
We otherwise accept that the subsequent reported lifting at work would cause further symptoms without necessarily aggravating the right shoulder pathology caused by the motor accident.
For the right shoulder, using Figures 38 on page 43 of AMA 4, the upper extremity impairment (UEI) due to restriction in flexion is 8% and extension 1%. Using Figure 41 on page 44, the UEI due to restriction in adduction is 2% and abduction is 6%. Using Figure 44 on page 45, the UEI due to restriction in internal rotation is 3% and external rotation is 0%.
The total UEI is therefore 20% which, using Table 3 on page 20 of AMA 4, is equivalent to a whole person impairment of 12%. Based on the conclusion that the motor accident caused the pathology set out earlier n these reasons, we are satisfied that the motor accident materially contributed to the present level of impairment.
We acknowledge the insurer’s previous submissions of inconsistency and the varied measurements of loss of range of movement of the right shoulder over time. Indeed, we accept that our measurement of loss of range of movement is greater than previously identified. This is explicable because the pathology in the right shoulder, caused by the motor accident, will gradually deteriorate over time and reduce the range of movement. Further, the Medical Assessors were aware of this issue and undertook the examination to ensure consistency in accordance with cl 1.50 of the Guidelines. To the extent that there are other examination findings of the right shoulder significantly inconsistent with ours, we are obliged to use the clinical expertise within the Panel and form our own opinion.
We have not used the left shoulder as the baseline for the assessment of the right shoulder.[103] This is because the medical evidence shows significant pre-accident pathology with a prior left shoulder operation.[104] The pre-accident pathology of the left shoulder would cause less than normal movement as at the date of our assessment.
[103] Cl 1.51 of the Guidelines.
[104] See [63]-[64] herein.
We are satisfied that the impairment is permanent within the meaning of cls 1.19 and 1.20 of the Guidelines because the condition is well stabilised, the claimant does not require surgery and treatment in the foreseeable future, and the Medical Assessors’ clinical examination of the claimant is that there is unlikely to be a change greater than 3% impairment over the next year.
There is no objective evidence of a pre-existing symptomatic permanent impairment in the right shoulder at the time of the accident within the meaning of cl 1.31 of the Guidelines. Accordingly, no deduction is made.

CONCLUSION

The certificate issued by Medical Assessor Assem is revoked. A replacement certificate is attached at the commencement of these Reasons.

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	60°	110°
Extension	30°	40°
Adduction	0°	20°
Abduction	60°	90°
Internal Rotation	40°	70°
External Rotation	80°	90°

[2024] NSWPICMP 167

21 March 2024