Insurance Australia Limited t/as NRMA Insurance v Yaghi

DETERMINATION OF REVIEW PANEL
CITATION:	Insurance Australia Limited t/as NRMA Insurance v Yaghi [2023] NSWPICMP 672
CLAIMANT:	Mahmoud Yaghi
INSURER:	Insurance Australia Limited t/as NRMA Insurance
REVIEW PANEL
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Mohammed Assem
MEDICAL ASSESSOR:	Drew Dixon
DATE OF DECISION:	13 December 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; insurer’s review under section 63; Medical Assessor (MA) Herald had determined claimant had whole person impairment (WPI) of greater than 10% in a second further assessment; claimant said he injured his neck, lower back, left shoulder and left knee in the accident on 14 April 2014; claimant had previous shoulder symptoms and previous radiology; claimant had two previous car accidents and a subsequent accident; other incidents in the past and after the accident; significant issue of reliability of the claimant’s evidence; insurer had film which suggested the claimant had a greater range of motion and was back at work as a plumber; claimant had reported to doctors he had not been working and had not disclosed previous injuries; Held – claimant’s evidence unreliable; Panel accepted the claimant injured his neck but no current impairment; Panel accepted claimant injured his back and due to presence of dysmetria had a WPI of 5% (consistent with other examiners); Panel satisfied claimant injured his left knee but that there was no current impairment; Panel satisfied claimant injured his left shoulder in the accident but that range of motion not an appropriate method of assessment and assessed 2% WPI by analogy; Certificate of MA revoked and claimant certified as having a WPI of not greater than 10%.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Part 3.4 of the Motor Accidents Compensation Act 1999 The Review Panel: 1. Revokes the certificate issued by Medical Assessor Herald dated 26 October 2022. 2. Certifies that the degree of permanent impairment resulting from Mahmoud Yaghi’s injuries and caused by the motor accident on 8 April 2014 is not greater than 10%.

STATEMENT OF REASONS

INTRODUCTION

Mahmoud Yaghi was involved in a motor accident on 8 April 2014. He was heading north, in the vicinity of the Olympic precinct, in the right of two lanes. A driver in the left-hand lane suddenly turned right across Mr Yaghi’s path and a collision occurred between the front of his car and the driver’s side of the other car.
Mr Yaghi says he injured his neck, back, left knee and left shoulder in the accident and made a claim for damages against NRMA, the third-party insurer of the vehicle that Mr Yaghi says caused his accident and those injuries.
A medical dispute about the degree of the claimant’s whole person impairment (WPI) has arisen in connection with that claim which has been the source of the following assessments and reviews undertaken by the former Dispute Resolution Service (DRS) of the State Insurance Regulatory Authority (SIRA):
(a)    original assessment – Medical Assessor Couch certified on 3 March 2016 that the claimant’s WPI was 15%;
(b)    insurer’s application for further assessment – Medical Assessor Couch certified on 4 March 2019 that Mr Yaghi’s WPI was 9%, and
(c)    claimant’s review of the further assessment – Medical Assessors Oates, Gibson and Myers confirmed on 27 August 2019 that the claimant’s WPI was 9%.
The claimant applied to the Personal Injury Commission (the Commission) for a second further assessment of impairment which was allowed by a delegate of the President of the Commission. On 26 October 2022, Medical Assessor Herald determined Mr Yaghi had a WPI of greater than 10% (15%).
The insurer was disappointed with that result and lodged an application seeking a review of the Medical Assessor’s decision. On 6 March 2023, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and allowed the Review. On 10 March 2023 the President’s delegate convened this Panel to conduct the Review.

LEGISLATIVE FRAMEWORK

General provisions

Mr Yaghi’s claim and entitlements to compensation are governed by the provisions of the Motor Accident Compensation Act 1999 (the MAC Act).
Damages can be awarded for both economic or pecuniary losses (such as lost wages or treatment and care expenses) as well as damages for non-economic loss. General damages are provided for in Part 5.3 of the MAC Act and limited to a maximum amount in accordance with s 134.[1] Entitlement to those damages is limited by s 131 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
[1] The current maximum as of October 2023 is $620,000.

Permanent impairment assessment

The degree of WPI is assessed in accordance with the Motor Accident Permanent Impairment Guidelines (the Guidelines)[2] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA4 Guides).
[2] Section 133. The current version of the Guidelines is Version 1 which is effective from 30 November 2017.
Due to the nature of the injuries sustained by the claimant, chapter 3 (the chapter concerning the musculoskeletal system) is relevant to the Panel’s assessment.

Dispute Resolution

If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination.[3]
[3] See s 132 and s 44(1)(c) of the MAC Act.
Part 3.4 of the MAC Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Couch’s 2016 assessment, further medical assessments such as Medical Assessor Couch’s 2019 assessment and Medical Assessor Herald’s 2022 assessment and the review of medical assessments by this Panel[4].
[4] Sections 61, 62 and 63 of the MAC 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 and determines the proceedings and may determine the proceedings solely based on the written application.[5]
[5] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[6]
[6] Section 7.26(6) of the MAI Act.

ASSESSMENT UNDER REVIEW

Medical Assessor Herald conducted an examination of the claimant on 22 August 2022 and completed his assessment on 26 October 2022. He says at [2] of his decision that he was asked to assess injuries to the claimant’s cervical spine, lumbar spine, right shoulder, left shoulder and left knee.
Medical Assessor Herald obtained the following history from the claimant recorded at [8], [9] and [10]:
(a)    the claimant is married with two children;
(b)    he studied to be an electrician but then worked as a plumber. He was, at the time of the accident, a subcontracted courier driving his own van;
(c)    he describes a collision when a vehicle in the left-hand lane crossed suddenly in front of his vehicle in the right-hand lane;
(d)    he hit his left knee on the dashboard and injured his left shoulder, back and neck with the impact;
(e)    he saw his general practitioner (GP) the next day and was referred to Dr Maniam who requested imaging. Ultrasound of his left knee revealed prepatellar bursitis and in the left shoulder there was a partial thickness tear of the supraspinatus tendon (the latter confirmed on MRI);
(f)    he had physiotherapy and a cortisone injection and developed overuse pain in his right shoulder, and
(g)    a full thickness tear developed, and the claimant had surgery on 9 December 2020.
Medical Assessor Herald says at [8] that the claimant was “very healthy prior to the accident” and at [11] says there are no relevant injuries or conditions since the accident. He expressed the view at [11] that the claimant appeared to now have medial meniscus tear symptoms but acknowledged these did not appear in the imaging. The claimant’s current symptoms were documented at [12] as left knee pain, left shoulder pain, neck and back pain with radiculopathic symptoms down the left upper and left lower limb. The claimant was said to be seeing a psychologist, taking medications and managing his symptoms with Shisha (waterpipe smoking) and alcohol.
On examination of the neck there was dysmetria in one plane of motion (flexion and extension) but no guarding or neurological signs in the upper limbs.
On examination of the lumbar spine there was some guarding and a positive straight leg raise on the left compared to the right but a normal neurological examination in the lower limbs.
When the shoulders were examined, the right range of movement was greater than the left. There were positive impingement signs in both shoulders and there was a reduction of power in the rotator cuff muscles on the left.
There was swelling (effusion) in the left knee and tenderness. Range of motion was 0-130 degrees in both knees. Medical Assessor Herald found no evidence of prepatellar bursitis which he said was revealed in the original imaging after the accident. The Panel notes the original imaging in April and May 2014 was of the left knee and did not show pre-patella bursitis. The right knee was investigated in June 2014, and it was this imaging that demonstrated pre-patella bursitis.
Medical Assessor Herald diagnosed at [22]:
(a)    prepatellar bursitis of the right knee;
(b)    a resolved soft tissue injury to the left knee;
(c)    left shoulder partial thickness rotator cuff tear, progression to full thickness rotator tear and subsequent repair, and
(d)    cervical and lumbar soft tissue with radiculopathic symptoms to left upper limb and left lower limb.
In terms of impairment, he assessed a total of 15% made of up:
(a)    cervical spine - Diagnostic Related Estimate (DRE) category II - 5%
(b)    lumbar spine – DRE II = 5%
(c)    left shoulder 12% Upper Extremity Impairment (UEI ) less 3% for the baseline measurement of the right shoulder = 9% UEI which translates to 5% WPI.

ISSUES FOR DETERMINATION

Insurer’s submissions

The insurer has lodged “consolidated” submissions dated 3 April 2023.[7]
[7] Page 1 of the insurer’s bundle. The numbers in square brackets refers to the paragraph numbers of those submissions.
The insurer provides some background and a summary of the previous assessments. The insurer does not repeat the submissions made to the President’s Delegate but does say at [3.3]:
“Despite this being at least the fifth occasion upon which he was assessed in relation to his physical injuries by [the Commission] or its predecessors, the Claimant yet again provided no history of any prior or subsequent accidents. This is significant and is addressed further below.”
The insurer points at [4] to records from the claimant’s workers compensation insurer evidencing previous and subsequent accidents on:
(a)    11 April 2013 – T-bone collision from the left with complaints of shoulder, neck and back pain;
(b)    12 July 2013 – rear end collision into the back of a taxi with complaints of pain in the neck and right wrist, and
(c)    7 October 2014 – the claimant was lifting more than 12kg at work when he felt pain in his left shoulder.
The insurer provides a comprehensive summary at [5] of the claimant’s pre and post-accident treatment records suggesting there have been previous complaint of knee pain (dating back to 1995), back pain (since 1997), left shoulder discomfort and symptoms (since 2001) as well as a previous work place injury (February 2011 to the left shoulder) and a subsequent motor accident (July 2015).
The insurer sets out at [6] the claimant’s current work duties and relationship to a business called MMM Plumbing.
The insurer has placed the claimant under surveillance and at [7] relies on reports and film as follows:
(a)    12 April 2021 – the claimant spent 22 minutes gardening on 24 March 2021, the claimant worked on his car on 25 March 2021 and on 30 March the claimant carried a small gas and then large gas bottle;
(b)    11 June 2021 – the claimant may have been working on a building site at Narwee, and
(c)    22 February 2022 – the claimant attended a construction site at Iona Lane, Paddington in a work van and t-shirt in the name of MMM plumbing.
The insurer says at [7.7] that the claimant has given histories to Drs Girgis, Lee, Machart and Roldan that is inconsistent with the activities shown on the film.
The insurer summarised at [8] the medico-legal evidence and at [9] the claimant’s medico-legal evidence and says at [10] “the claimant is not genuine” and cites instances of incomplete and inaccurate histories, exaggerated or inconsistent behaviour during examination and history contradicted by the surveillance.
The insurer submits at [11] that the claimant’s condition has not deteriorated since Medical Assessor Couch’s assessment on 11 December 2018 and the review should not be allowed.

Claimant’s submissions

The claimant’s submissions are directed at the President’s Delegate’s task of ascertaining a reasonable cause to suspect a material error and not the substantive issue of the assessment of the claimant’s WPI.
The claimant’s submissions in the application for further assessment[8] were also aimed at the President’s Delegate who was required to decide whether there had been a deterioration or significant new information about the injuries. The claimant said he relies on a report of Dr Guirgis from September 2021 and that his injury has deteriorated.
[8] Page 40 of the insurer’s bundle

Procedural matters

On 14 March 2023 the Panel issued directions to the parties.
The insurer was directed to provide a bundle of documents comprising the submissions from both parties in both the original assessment and the application for review, all Medical Assessment certificates in chronological order and the insurers documents to be relied on in the review. The insurer provided a bundle of over 940 pages, indexed, paginated and helpfully hyperlinked.[9]
The claimant was directed to provide an indexed and paginated bundle of documents that are relied on, avoiding duplication with those already provided by the insurer. The claimant has provided a bundle of over 520 pages which has been indexed but not paginated and includes duplicates of documents already provided by the insurer.[10]
The Panel met on 15 June 2023 and reported to the parties the next day. The Panel noted that it was conducting a de novo assessment and requested submissions from the claimant addressing the substance of the dispute (and not the gateway issues), a statement from the claimant (addressing the surveillance film and the MMM Plumbing communication) and an indexed and revised bundle of documents.
The Panel directed the insurer to provide access to the surveillance film.

Responses from the parties

[9] This bundle will be referred to as AD2 in these reasons.

[10] This bundle will be referred to as AD3 in these reasons.

The insurer uploaded copies of the film enabling the Panel to access the film.
The claimant provided a statement which addressed some but not all of the matters raised by the Panel and did not provide a revised bundle of documents as directed.
The claimant provided further submissions dated 13 July 2023 as follows:
(a)    the test of causation is that espoused in cls 6.5-6.7 of the Guidelines. The claimant refers to the case law saying the test does not require scientific certainty;
(b)    the claimant says:
42.“In considering whether the injuries were caused or materially contributed to by the subject motor accident the Claimant notes the accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible.”
(a)    the claimant says his experts have not been provided with the surveillance film.
The Panel determined on 2 August 2023 that a medical re-examination would take place with Medical Assessor Assem and the parties were advised of the arrangements for that re-examination.

REVIEW OF THE EVIDENCE

Both parties have provided bundles and documents comprising nearly 1,500 pages between them.
Justice Basten in Rahman v Insurance Australia Ltd t/as NRMA Insurance[11] said at [63]:
“The Court of Appeal has, on more than one occasion, remarked on the volume of material which is routinely provided to medical assessors under the Act and under workers’ compensation legislation. (Providing it to the court is also commonplace, though misconceived.) Not only is there no general law principle requiring an assessor to refer in reasons accompanying a certificate to all the documentation to which he or she has had access, but rather, the function of the assessor is inconsistent with any such obligation. A judicial officer is not required to refer to each piece of evidence in a judgment determining the resolution of a dispute to which expert opinion is critical. As noted above, the function of the medical assessor is quite different. The assessor is not resolving a dispute between experts but forming his or her expert opinion. The application of expertise permits (and indeed requires) the assessor to be discriminating as to that material which he or she considers significant and that which may be disregarded or given little weight. There is no requirement to identify material falling into the latter category, nor to justify its exclusion from consideration.”
[11] [2022] NSWSC 1079.
While the Panel has considered all of the documents there is no need to refer to them all. The Panel has included below a summary of those documents the Panel considers relevant to the matters in dispute.

Claim form and claim documents

The claim form is signed and dated 19 May 2014. The claimant indicated he had sustained injury to his neck, left shoulder, left arm, lower left back, left knee and shock. He said he had restriction of movement, was off work, needed bed rest and had anxiety and depression.
He identified his treating doctor as Dr Yousef of Punchbowl and denied having “any other injuries, disability or illness, before or since the accident, to the same part(s) of [his body]” He also denied ever having made a previous claim for personal injury compensation or damages.
Dr Yousef signed the medical certificate on 14 April 2014. He says he examined the claimant on 10 April 2014 and noted neck pain, left shoulder joint pain, left knee pain and low back pain. In addition, he found stress, anxiety and panic disorder. He referred the claimant to Dr Maniam. Dr Yousef said he had been the claimant’s doctor since 1992 and certified the claimant unfit for work from 8 April to 1 May 2014.
The claimant provided a statement dated 12 July 2023 at the request of the Panel concerning a number of the matters raised by the insurer in its submissions:
(a)    on 11 April 2013 he was involved in an accident not caused by his fault. He says he sustained minor injuries and returned to work “straight away”;
(b)    on 12 July 2013 he was involved in another accident when he ran into the vehicle in front. He says he did not sustain any major injuries and returned to work “straight away”;
(c)    on 7 October 2014 he says he was “lifting tubs [of medicine] out of my van that weighed within the guidelines provided by my treatment provider at the time”. He says if he felt pain in his shoulder after that incident, that was because of the current April 2014 accident;
(d)    the earlier complaints of knee, back and left shoulder occurred when he was young and at school;
(e)    he has no recollection of shoulder symptoms in 2004, back pain in 2006 and left shoulder injury in 2011 or of the ultrasound in February 2011;
(f)    in relation to the report of Dr Machart from 2011, he says there is another individual called Mahmoud Yaghi who has a different date of birth with whom he has been confused and he said he has never attempted to lift a water tank at work;
(g)    he accepts he had an accident on 15 June 2015 but says he did not sustain any new injuries or aggravations;
(h)    he accepts he had a left shoulder injury in March 2001 and dislocated his shoulder (acromioclavicular joint) but says it healed within six to eight weeks;
(i)    he accepts the accuracy of the GP records from October 2002 to 11 April 2014;
(j)    he notes Dr Rahme’s clinical records;
(k)    he makes “no comment” about something which is likely the fact of, and results from, a right knee ultrasound and X-ray on 3 June 2014 and MRI of the left knee with no cause for the alleged pain in the left knee;
(l)    he agrees he had the left rotator cuff repair on 19 September 2020, and
(m)     the absence of a record in Dr El Jaam’s notes of lumbar pains in 2021 and 2022 and shoulder symptoms after October 2020 was due to COVID and “that it is possible the lumbar complaints, shoulder pain, leg pain and knee pain has always been constant, requiring regular dosage of pain relief medication”.

Mr Yaghi confirms that he is the person in the surveillance film but that he had taken strong medication in order to do the things he is depicted as doing. He says despite being in constant pain he has tried to continue working to support his family.
Mr Yaghi says he was not the author of the MMM plumbing letter of 7 July 2022. He did not identify who was the author of the letter.

Workers compensation and employment documents

The insurer relies on a number of documents as follows:
(a)    the workers compensation claim made on 11 April 2014 in relation to this accident.[12] The claim form records injuries to the “left side body, shoulder, arm, lower back, knee”;
(b)    a decision from Toll Holdings (self-insured) dated 2 March 2016 in relation to the claimant’s capacity to work and his workers compensation payments.[13] This decision refers to certificates of capacity from Dr Youssef advising the claimant had capacity for some work from 22 October 2015 with the exception of four dates, 30 October, 9, 14 and 15 December 2015. The claimant’s payments were reduced to nil, and
(c)    multiple certificates of capacity relating to the workers compensation claim citing injuries to the low back, left leg, neck and left shoulder.
[12] Page 390 of the insurer’s bundle.
[13] Page 377 of the insurer’s bundle.
The insurer has a letter from MMM Plumbing Services Pty Limited which is dated 7 July 2022 but is not signed.[14] The letter was written in reply to an email from the insurer’s solicitors to MMM seeking information about the claimant’s employment status with the company and says:
(a)    the claimant is the sole director of MMM Plumbing Services Pty Limited on Australian Securities and Investment Commission (ASIC) records;
(b)    his brother Majed has been “blacklisted” from having involvement in the company, but Majed is the real owner and manager of the company;
(c)    the claimant performs supervisory work only, places telephone calls and goes once a month to a site viewing;
(d)    “the claimant is very limited in his capacity of physical working abilities” because of his accident related injuries and does no physical work in the business, and
(e)    the claimant is not receiving a wage but is given “charity or goodwill” from his brother.
[14] Page 261 of the insurer’s bundle.
The claimant says in his signed statement that he is not the author of this letter. The claimant was directed to state who did sign the letter. The Panel advised the parties in the report and directions document dated 20 June 2023 that in the absence of any further information from the claimant, the Panel would assume it was the claimant’s brother who wrote this document. No further response was received and the Panel is proceeding on that basis.

Surveillance material

The insurer relies on three surveillance reports and over 200 minutes of surveillance film.[15]
[15] The reports are dated 13 April 2021 (page 314 of AD2), 11 June 2021 (page 332) and 22 February 2022 (page 346).
The surveillance was conducted on 15, 24, 25 and 30 March 2021; 20 April, 10, 13 and 20 May 2021, and 31 January and 1, 2, 8 11 and 15 February 2022.
The claimant’s observed activities included:
(a)    on 15 March 2021 three vehicles were parked at the claimant’s home one of which was a van with signage for MMM Plumbing;
(b)    on 24 March 2021 the claimant spent 22 minutes lawn mowing and using a whipper snipper, blower and a hand rake;
(c)    on 25 March 2021 the claimant appeared to be working on the engine of one of the vehicles at the property;
(d)    on 30 March 2021 he was seen carrying a small gas bottle and attending a welding and supplies shop;
(e)    on 20 May 2021 he claimant took out the rubbish bins and went to Tradelink Plumbing before heading to a private residence where he parked and unloaded tools from a MMM Plumbing Services marked van. He unloaded a gas bottle and carried a toolbox into the residence. He left in a hurry after 20 minutes inside;
(f)    on 1 February 2022 the claimant was followed from his home in the MMM Plumbing van to a construction site on Iona Lane in Paddington, and
(g)    on 11 February 2022 the claimant was wearing an MMM t-shirt and drove in the MMM van to the Iona Lane construction site.

Treating medical records and reports

Pre-accident records

Dr Assad from a practice in Punchbowl was one of the claimant’s doctors while he was a child. In his records, which commence on 17 July 1984,[16] there is a discharge summary from Bankstown Hospital dated 26 March 2001. This says:
“17 year old injured in left shoulder playing football. He was tackled by opponent and so he pushed the guy away [with left] palm. On examination – nil sensory deficit. Good brachial pulse. Moves fingers well but [range of motion] restricted in shoulder.”
[16] Page 755 of AD2.
An X-ray revealed a dislocated left acromioclavicular (AC) joint. The claimant was discharged with Panadeine Forte for pain.
There appears to be a right shoulder and right-hand injury on 29 October 2002 while the claimant was working or detailing his car. He saw Dr Assad on 31 October 2002 saying he had been unable to go to work as a result. On examination it is recorded that the claimant was tender tip of right shoulder and there were limits to movement of right shoulder in all directions.
On 11 April 2013 is this entry:[17]
“Works as a courier and today while driving his van another car hit his car on its left side at the roudabout. Injured left upper limb. He did not go to hospital. Complains of [left] brachialgia and [left] shoulder pain. Dorsal back pain. Tender outer side of [left] forearm. Tender tip of [left] shoulder. Tender over mid dorsal spine”
[17] Page 758 of AD2.
Dr Assad appears to have diagnosed a soft tissue injury and prescribed Brufen.
Punchbowl Medical Centre has produced records to the insurer and include details of consultations with Dr Youssef.[18] The records include handwritten cards commencing on 28 November 1992 when the claimant was nine years of age. On 31 May 1993 the claimant attended with an injury to his right little finger (referred to in a history given to Dr Shatwell).
[18] Page 580 of AD2.
There is a history of neck pain and back pain in March 1997, right knee joint pain in June 1998, further right knee issues in March 1999 and also right hand and finger issues. In June 2001 the claimant complained of left shoulder joint pain and a CT-Scan of the left shoulder was recommended.
There is a note on 16 February 2011,[19] “Injury to left shoulder at work on 11 February 2011 at about 12.00 noon or 1.00pm while lifting a tank he felt pressure on left upper arm (informed the boss)”.
[19] Page 584 of AD2.
Later in the records and also dated 16 February 2011[20] is a note that the claimant complained of a painful left shoulder joint and was referred for an ultrasound and there is a reference to “injury at work on 11 February 2011”. The next note appears to be on 18 February 2011 where again the claimant complained of a painful left shoulder joint and the ultrasound had been done and the claimant was referred to Dr Machart, orthopaedic surgeon.
[20] Page 596 of AD2 – the notes are somewhat out of order.
Dr Machart had provided a report to Dr Youssef on 22 February 2011.[21] The claimant’s date of birth was stated (and is consistent with the details elsewhere) and the consultation had occurred on 21 February 2011. Dr Machart had a history of the claimant injuring his left shoulder on 11 February 2011 lifting an empty 5,000 litre water tank. He had sudden pain which he reported to his foreman. The claimant still had pain with poor elevation and was tender over the rotator cuff with crepitus and positive impingement. He recommended X-rays and MRI.
[21] Page 578 of AD2.
An ultrasound dated 17 February 2011 was attached to the report showing a partial thickness articular surface tear in the supraspinatus measuring 2.5 x 1.7mm with tendinitis and subacromial and subdeltoid bursitis with evidence of left shoulder impingement.
The next note in Dr Youssef’s records is dated 15 March 2011 and the claimant was given two days off work, but it is not clear for what condition this relates. There are no records thereafter in relation to any medical condition until the next entry which was in April 2014 after the car accident.[22]
[22] At page 596 of AD2 is a page of the consultation notes which does jump from 15 March 2011 to a date in April 2014.

Post accident records

Dr Kanawati (of Restwell Street Bankstown) has provided records for a Mohmoud Yaghi with the claimant’s date of birth.[23] The claimant attended on 10 April 2014 complaining of injuries following the 8 April accident. He notes “this is the third accident.” He drew a diagram of the accident and took a history consistent with other histories. The complaints of injury included left shoulder and neck. Left wrist pains and another part of the body that cannot be identified. Also noted was lower back and left leg and knee. The right wrist and right shoulder were noted as an old injury and what appears to be the left shoulder was noted as “not injured before”.
[23] Page 303 of the claimant’s bundle. There are no pre-accident records from this practice.
Dr Kanawati completed a Workcover certificate on 10 April 2014 nominating the cervical and lumbar spines, left upper limb and left hip, left knee soft tissue injuries and an anxiety state. His treatment plan was for analgesia and the claimant was unfit for work until 1 May 2014.
Dr Youssef’s notes show the claimant attended on a date in April 2014 after the accident but before 14 April 2014 (the second consultation). The claimant complained of left shoulder and left knee joint pain, neck and back pain. On review with the radiology the claimant was referred to Dr Maniam. On 16 April 2014 a further consultation occurred with records only of a painful left knee joint and muscular sprains. On 22 April 2014 is a reference to lower back, left shoulder and left leg physiotherapy (no neck).
On 30 May 2014 is a complaint of a painful right knee joint “since yesterday.” The claimant was referred for a right knee MRI.
The claimant’s right shoulder appears in the notes on 6 March 2015 at a time when Dr Youssef records the claimant was on light duties. Right shoulder symptoms feature again in October 2015 and with increasing frequency in 2016.
Dr Youssef’s notes record regular complaints of neck and lower back pain, left shoulder and left knee pain although not all four areas will appear on every occasion. The Panel cannot see any complaints of right knee pain after June 2014.
Dr Maniam provided a report to Dr Youssef dated 23 April 2014.[24] He has a history of neck, left shoulder, left knee and lumbar spine injuries. Dr Maniam has no history of previous problems and reports, “he has always been in a good state of health.” He diagnosed soft tissue injuries and left shoulder impingement and ordered further scans and advised physiotherapy should continue.
[24] Page 657 of AD2 and page 244 of AD3.
Dr Maniam’s notes[25] suggest a further attendance on 16 May 2014 noting some improvement in neck and lumbar spine pain. The claimant is said to have failed to attend a third appointment on 2 July 2014.
[25] Page 787 of AD2.
SportsFizz Physiotherapy have provided notes including the new patient information form dated 23 December 2014[26] which lists the areas of injury as left shoulder, back, left knee and neck. The pain chart however highlights the left shoulder and left knee only and the notes mention left shoulder and left knee with a “long history of problems with the left shoulder and left knee.” There is a reference to “prev Rx” (which the Panel notes is a common physiotherapy abbreviation for “previous treatment”). There are two notations suggesting previous physiotherapy in Lakemba and treatment from John in Parramatta.
[26] Page 768 of AD2.
The claimant attended on 6 January 2015 with notes suggesting left knee and shoulder treatment was provided. On 8 January 2015 there was “mild improvement [with] regards to both injuries.” On 13 January 2015 the claimant could obtain a full range of movement but there was some catching at 130 degrees abduction. On 25 January 2015 the claimant could abduct to 150 degrees without issue. There are no further notes.
On 16 June 2015 the claimant attended Dr Youssef complaining of left shoulder joint pain, neck pain, left leg pain, anxiety and was certified off work from 16 June to 19 June 2015 and the claimant being “on light duty work”.
The insurer relies on a letter from Toll Holdings to Dr Youssef dated 22 June 2015[27] referring to a work capacity certificate issued by the doctor certifying the claimant was unfit for any work for four days from 16 June 2015. The letter suggests the claimant had apparently finished work at 3.05pm with no issues. The employer then refers to a phone call from the claimant at 6.55pm saying he had been involved in an accident and was on his way to hospital to be checked out. He says his car was struck at speed and the car tipped on its side. There is no record of any response from Dr Youssef.
[27] Page 618 of the insurer’s bundle.
On 19 June 2015 the claimant attended Dr Youssef again[28] complaining of left shoulder joint pain and was given a referral to see a psychologist. There is a note which reads “been involved in MVA on 15/6/2015 but no recent injury or even discharge notes from Bankstown Hospital.” On 25 June 2015 the claimant attended again complaining of neck pain and left shoulder joint pain and a possible panic disorder.
[28] Page 587 of AD2.
On 7 November 2016, Dr Youssef completed a medical certificate for the purposes of Centrelink[29] and diagnosed low back pain, left leg pain, left shoulder joint pain and neck pain and certified the claimant unfit for work for a month.
[29] Page 643 of AD2
Dr Rahme, orthopaedic surgeon responded to a request from the workers compensation rehabilitation provider in a questionnaire dated 13 June 2014[30] with comments on the left knee injury noting “patellofemoral overload secondary to probable dashboard contusion injury”. He advised work restrictions, physiotherapy and possibly injections and advised that he thought the claimant would return to work in three months.
[30] Page 482 and 826 of AD2.
Dr Rahme completed a second questionnaire on the same date about the left shoulder injury diagnosing a supraspinatus tear of the left shoulder and advised injections and placed lifting and overhead work restrictions. Dr Rahme advised that if there was no improvement in three months that surgery would be recommended.
In a letter of the same date to Dr Youssef, Dr Rahme provided similar information and advised he would review the claimant in six weeks.
In a letter to Dr Youssef dated 19 September 2014,[31] Dr Rahme records the claimant had local anaesthetic in the left shoulder six weeks previously with a 60% improvement in symptoms for two weeks. He also notes, “his right knee symptoms have settled completely” and the left knee pain was improving.
[31] Page 828 of AD2.
He recommended left shoulder rotator cuff repair surgery after conservative measures (including injections) failed in a letter dated 1 December 2014.[32]
[32] Page 493 of AD2.
Dr Rahme again recommended surgery in a report dated 2 July 2019 on the basis of what was now a full thickness rotator cuff tear and was given the forms to fill out to have Mr Yaghi placed on the waitlist for surgery.[33] In a report dated 13 May 2020, Dr Rahme notes reduced abduction and flexion to 130 degrees with pain and weakness. The surgery took place in September 2020.
[33] Page 821 of AD2.
There is a letter from Dr Rahme to Dr Ali El-Jaam in December 2020 confirming the shoulder surgery and that the claimant was improving slowly. The claimant was to be reviewed in three months’ time but there is no further documentation from Dr Rahme. The notes suggest a consultation on 17 January 2022 but there are no further details of this and no report or letter to Dr El Jaam.
Dr El Jaam has provided records from his surgery in Bankstown. He saw the claimant once in 2008 for nasal problems and then on 13 May 2019 for a left rotator cuff tear, major depression, a possible kidney stone and migraine. The clamant was complaining of palpitations. On 21 May 2019 the claimant attended, and a referral was written for Dr Rahme, orthopaedic surgeon and on 28 June 2019 the claimant attended, and documents were fille out for shoulder surgery.
The claimant next attended on 23 September 2020 after having his surgery, and Endone, Naprosyn, Avanza and Somac were prescribed. On 28 October 2020, the claimant’s arm was still in a sling, and he was again prescribed Endone.
On 4 March 2021 the claimant attended complaining of back pain and sciatica and difficulty sitting as he was in such severe pain. His back was tender, restriction present full range of motion but an exam was difficult due to pain. Voltaren, Endone, Lyrica and Voltaren were prescribed. On 16 March 2021 the claimant attended again with back pain but no sciatica. The Panel notes the surveillance film commences on 15 March 2021.
Mr Yaghi attended Dr El-Jaam on 22 June 2021 who noted he was seeing Dr Youssef regarding the 2014 accident and his neck, lower back and left shoulder injuries and the claimant was complaining of back pain with sciatica. The claimant’s MRI was reviewed showing spondylosis, arthropathy and lumbar disc bulges. On 8 September 2021, the claimant attended for left sided sciatica and Endone and Voltaren were prescribed.
There were then attendances for other unrelated matters before the claimant attended again on 30 May 2022 seeking Endone and Voltaren for neck pain, left shoulder joint pain and restricted movement.
On 3 Aug 2022 the claimant presented with reports from his wife of sleep apnoeic episodes. Thereafter there are several attendances for unrelated issues including kidney stones, chest pain and scripts for Endone with little explanation in the notes as to why the scripts were given. On 8 September 2023 the claimant attended with back pain, restricted movement and joint stiffness and depressive anxiety disorder and Cymbalta and Endone was prescribed.

Radiology

Spine

X-rays dated 10 April 2014 at the request of Dr Youssef[34] reported normal cervical and thoracic spine and left shoulder. No fractures and “mild to moderate degenerative disc disease at C5/6”.
[34] Page 476 of AD2.
Dr Youssef requested a CT scan of the claimant’s lumbar spine which was done and reported on 26 November 2014.[35] There was a moderate bulge at L5/S1 indenting the right nerve root at S1, mild impingement of the L5 nerve roots on both sides and mild bulging at L3/4 and L4/5 without significant compression and degenerative changes in the facet joints at L4/5 and L5/S1.
[35] Page 602 of the insurer’s bundle.
An MRI report in the records of Dr El Jaam is dated 15 July 2021 and provides a clinical explanation of “motor vehicle accident with recurrent left sciatica” and reports:
(a)    spondylitic changes noted in the lower thoracic spine and lumbar spine;
(b)    T12/L1 disc bulge indenting the thecal sac but T2 nerve roots exiting freely;
(c)    L3/4 mild disc bulge indenting the thecal sac touching and possibly irritating the descending L4 nerve roots;
(d)    L4/5 mild indenting disc bulge but L4 nerve roots exit freely, and
(e)    L5/S1 – mild disc bulge with posterior protrusion indenting the thecal sac right more than left and touching and possibly irritating the right S1 nerve root with no significant compression. L5 nerve roots exit freely.

Shoulders

17 February 2011 – ultrasound left shoulder “partial thickness articular surface tear in the supraspinatus tendon measuring 2.5 x 1.7 mm”. There was tendinitis and bursitis with evidence of left shoulder impingement.
On 26 May 2014 an MRI of the claimant’s left shoulder[36] was undertaken at the request of Dr Maniam due to “pain in left shoulder” showing a “partial thickness tear of the supraspinatus measuring 12 mm”, apparent previous Hill-Sachs defect from a dislocation and mild degenerative changes in the acromioclavicular (AC) joint and bursitis.
[36] Page 793 of AD2.

A sub-deltoid bursal injection was done on 31 July 2014 at the request of Dr Rahme.
Dr Mary Gabriel of Granville requested an ultrasound of the claimant’s left shoulder on 2 May 2019 with a history of pain and limitation of movement. The report of that ultrasound dated 9 May 2019 was addressed to Dr Mary Girgis at Greystanes and the conclusion was of a “full thickness partial tear measuring 4 mm of the anterior supraspinatus and evidence of subdeltoid bursitis” [37]. A left shoulder ultrasound injection was performed on 23 May 2019 at the request of Dr Gabriel of Granville and the report sent to Dr Girgis of Greystanes.[38]
[37] Pages 808 and 809 of AD2. The Panel does not appear to have any other records from this doctor or the practice.
[38] Pages 814 and 815 of AD2.
On 19 June 2019 the claimant had an MRI of his left shoulder possibly at the request of Dr Rahme (who saw the claimant on 18 June 2019)[39] which demonstrated a “small full thickness tear” being 7mm wide by 10mm. There were minimal degenerative changes in the acromioclavicular joint and some bursitis.
[39] Page 490 of AD2.

Knees

X-ray of the left knee dated 14 April 2014 at the request of Dr Youssef – there was bipartite patella (where there are two bones of the kneecap rather than a single fused bone which normally occurs in childhood). There was no evidence of joint effusion.
On 26 May 2014,[40] an MRI of the left knee due to pain showed bipartite patella but intact menisci, cruciate ligaments and chondral surfaces with no cause for the pain.
[40] Page 479 of AD2 – the date of the report is not recorded on this document however it appears to have been sent by facsimile to someone on the same date as the 26 May 2014 MRI of the left shoulder.
On 3 June 2014,[41] an ultrasound of the right knee was undertaken with an X-ray to suggest some spurring, bipartite patella and some pre-patella bursitis.
[41] Page 482 of AD2.

Medico-legal reports

Dr Matthew Giblin, orthopaedic surgeon provided a report to the claimant’s solicitor on 20 October 2014.[42] Dr Giblin was given a consistent history of the accident and the immediate treatment. The claimant said, “his neck bothers him.” The claimant reported being unable to help with the household duties, someone comes to do the lawns and gardens and he cannot work on his cars anymore.
[42] Page 31 of AD3.
The claimant denied any previous injuries.
On examination there was dysmetria on one plane of neck movement and a full range of motion in the right shoulder. There was diminished left shoulder motion with flexion to 130 degrees and abduction to 110 degrees but no adduction. There was some restriction in the lumbar spine. Dr Giblin was of the view the claimant had soft tissue injuries. He appears to have had limited records before him.
Dr Shatwell, orthopaedic surgeon provided a report to the claimant’s self-insured employer dated 2 December 2014.[43] At that time the claimant was working six hours a day delivering tubs of medicines and chemist products weighing no more than 12kg. Dr Shatwell records the claimant was off work for two to three weeks having physiotherapy.
[43] Page 858 of AD2.
The claimant complained of lower back pain to the left (the most severe pain) which radiates into the left iliac crest and on occasions to the left thigh and left calf. He also complained of left shoulder pain, left knee pain and says that his neck pain “has almost completely settled.”
Dr Shatwell had a history of no serious injuries in the past other than a minor injury to his right little finger in Mr Yaghi’s teens. The claimant did recall two previous car accidents in the past with back and neck x-rays being taken which produced symptoms which had settled.
The claimant gave a history of training and working as a plumber for 10 years but had problems with cash flow and debts and changed occupations to courier driving.
On examination, the claimant could achieve 170 degrees of abduction and flexion.
Dr Shatwell diagnosed soft tissue injuries to the low back, left shoulder and left knee.
He observed some inconsistency and illness behaviours and thought the claimant was fit for his pre-injury occupation.
Dr Guirgis, orthopaedic surgeon provided a report dated 25 March 2015.
The claimant denied any previous relevant history.
There was no spasm or guarding in the neck on examination and no signs of radiculopathy or non-verifiable radicular symptoms. Right shoulder motion was normal but the left shoulder motion was improved from the measurements of Dr Giblin but still reduced (150 degrees of flexion and 140 degrees of abduction). There was dysmetria in the lower back, but it appears there was no examination of the knee.
Dr Guirgis advised that domestic and gardening assistance was required and assessed WPI at 17%.
Dr Shatwell provided a further report to the claimant’s employer dated 3 December 2015[44] noting the claimant was working intermittently as a courier (managing 10-hour shifts) and had developed right shoulder problems in addition to his left shoulder problems. Mr Yaghi reported that his left knee buckled when he walks.
[44] Page 563 and 868 of AD2.
The claimant also complained of neck pain “which is pinching in nature and occurs in the root of the neck on the left side.”
The claimant was measured at 180cm tall and weighing 110kg (a body mass of 33 which is in the obese range). The claimant’s shoulder movements had greatly reduced.
Dr Shatwell could not link the right shoulder symptoms to the accident “on any rational basis” and advised the claimant should improve his fitness and seek psychological assistance to address his anxiety. He thought the claimant was fit for work with no restrictions.
Dr Pierides provided a report dated 7 April 2016 to the insurer.[45] The claimant provided a Queensland driver’s license and an address which he said was his wife’s mother’s address.
[45] Page 875 of AD2.
Dr Pierides has a history of the claimant working as a plumber until 2012 when he started working as a courier. The claimant was apparently not working at the time and had travelled to Queensland hoping to get a job with Toll in that state.
Dr Pierides notes the claimant was a “fit looking gentleman with excellently muscled upper and lower limbs.”
The claimant said he had never been able to work his normal duties after the accident.
The claimant at first denied previous car accidents or injuries but then when Dr Pierides gave him the history from Dr Shatwell’s report, he admitted he had two previous car accidents.
Dr Pierides notes what he describes as a manufactured presentation concerning the left knee and self-limited left shoulder range of motion (noting the claimant’s shoulder musculature). He found no impairment. Dr Pierides’ measurements of the right shoulder suggested a normal range of motion, but the left shoulder measurements were similar to that found by Dr Guirgis.
Dr Machart provided a report to the insurer’s solicitor dated 9 November 2017.[46] The claimant reports that after the accident the ambulance attended but he was picked up by a friend and driven home. He has a history of the claimant being off work for a month then on light duties with limited hours and an attempt at full duties.
[46] Page 886 of AD2.
The claimant complained of constant pain and said he could not walk more than 200 metres.
Dr Machart diagnosed soft tissue injuries. He noted there was no relevant history. He had limited records and does not appear to have been aware of his own involvement in the claimant’s care in 2011.
Dr Machart’s shoulder measurements are difficult to follow. He appears to have found elevation limited to 90 degrees, rotation was reasonably well preserved, and adduction was normal.
There is no impairment assessment, but Dr Machart does say “I did not find a great deal of difference in the level of impairment as expressed in the report MAS deterioration” which may have been a reference to Medical Assessor Couch’s assessment of 15% WPI.
Dr Guirgis provided a report to the claimant’s solicitors dated 28 September 2021.[47] He has many of the reports and records at this examination that are now before the Panel.
[47] Page 892 of AD2.
Dr Guirgis notes that since he first saw the claimant in 2015 the claimant’s left shoulder had deteriorated leading to surgery. The claimant rated his pain before the operation at 9 out of 10 and on presentation to Dr Guirgis 9 out of 10. Mr Yaghi said he was still stiff with a loss of strength. The claimant said he was over-using his right shoulder following the surgery to the left shoulder. Right shoulder measurements were reduced and left shoulder measurements even more reduced that before.
Mr Yaghi described to Dr Guirgis worsening lower back pain with “attacks of left L5/S1 sciatic radiation.” Dr Guirgis noted the radiology suggesting a disc protrusion.
Dr Guirgis had a history of four previous incidents including two accidents in 2013 which the claimant said resulted in no appreciable injuries. Dr Guirgis also had a history of the 15 June 2015 accident which the claimant said did not result in any significant injuries.
Dr Guirgis expresses the view that the claimant “had been disabled for work since the surgical treatment performed on 19-9-20.” He also indicated the claimant required lawn mowing and handyman assistance.
Dr Guirgis assessed WPI at 23%.
Dr Lee, psychiatrist has provided a report dated 29 November 2021 to the claimant’s solicitors.[48] He has a history after the accident of immediate pain in the left shoulder, knee and neck and that a year later the claimant had pain in his shoulder, neck back and left leg causing the loss of his job. The claimant said he had difficulty working although he had tried work as a truck driver.
[48] Page 303 of AD2.
The claimant said he was chronically depressed and angry. He records at [7] that “for the last two weeks his brother has given him a role in his business where he is supposed to direct others.” The claimant said he was taking Endep (antidepressant), Endone, Mobic and Diazepam and a sleeping tablet but he could not recall the name.
Dr Lee diagnosed a persistent depressive disorder and advised the claimant was unable to return to full time employment and that he was not coping with the part time work with his brother.
Dr Lee assessed WPI at 19%.
Dr Machart’s second report to the insurer is dated 23 February 2022.[49] The claimant gave him a history of pain developing in the evening (after the accident) to his neck, both shoulders and both knees. He notes the claimant was certified unfit for a month, returned to light duties which he did for 12 months. Mr Yaghi said he attempted full duties but could not do so and his position was terminated, and he has not worked since then.
[49] Page 263 of AD2.
The claimant told Dr Machart he had ongoing pain in the back, left shoulder and left knee and found it difficult to sleep. The claimant found it difficult to walk and said his left knee was unstable.
The claimant had the rotator cuff repair on the left but said he obtained no benefit.
Dr Machart on examination commented that the claimant was “reasonably well muscled” but that the left shoulder muscles were wasted compared to the right.
Dr Machart diagnosed soft tissue injuries and apportioned two thirds of the claimant’s current state to the accident and one third to previous conditions.
Dr Machart thought the claimant fit for light duties and found it difficult to accept that the claimant had been unable to work for seven years.
Dr Machart assessed impairment at 5% (DRE category II for the lower back) but no impairment for the neck or left knee.
Dr Machart provided a supplementary “file review” report dated 4 August 2022[50] following receipt of the surveillance report. He comments as follows:
“The level of activity displayed was greater than what was self-reported. The observation was more in keeping with the pathology of injury, which was not indicative of severe disability or inability to work.
The observation displayed normal lifestyle. This eliminated the doubts that I expressed at the time of my assessment in that severity of the self-reported symptoms was not in keeping with the pathology of injury, and not in keeping with the prognostic factors related to the pathology of injury. The observation displayed activity level in keeping with the prognostic factors of good outcome. The video footage displayed features of Mr Yaghi functioning normally in many circumstances, including industrial activities. At no time did Mr Yaghi display pain, restricted movement or disability. The video footage displayed Mr Yaghi to have now healed from his injuries.”
[50] Page 311 of AD2.
Dr Roldan, psychologist on 16 May 2022[51] considered at [5.4] the claimant’s presentation was consistent with a persistent Depressive Disorder with anxious mood. He administered some tests but could not administer them all as the claimant did not want to stay for the duration of the appointment and expressed a low stress tolerance.
[51] Page 269 of AD2
Dr Roldan expressed a number of opinions including that if accepted, Mr Yaghi’s psychological condition had worsened since examined by Medical Assessor Virgona in 2015 and that Mr Yaghi’s performance on tests was mixed and he expressed concerned about the validity of the reported symptoms.
In a supplementary report dated 14 July 2022,[52] Dr Roldan had viewed the film and the surveillance reports and suggested at [2.1.3] that “various aspects of the [claimant’s] history and complaints … appear inconsistent with the surveillance evidence.”
[52] Page 296 of AD2.
Dr Roldan concludes at [3.1]:
“I have very little doubt that within the context of his current claim Mr Yaghi has provided to me and others an unreliable history and, more specifically, has consciously significantly over-reported physical and psychological symptoms as well as allegedly associated disability/impairment.”
He suggests at [3.2] no reliance should be placed on the claimant’s self-reporting of his symptoms and at [3.3] that the claimant “is unlikely to have a significant psychological disturbance or any significant genuine ongoing disability / impairment associated with such condition.”

Other assessments

Medical Assessor Virgona assessed the claimant’s psychological injury (chronic adjustment disorder with depressed mood) at 0% WPI in a certificate dated 2 March 2015.[53]
[53] Page 79 of AD2.
Medical Assessor Couch assessed the claimant’s physical injuries (neck, back, left shoulder, left knee) in a certificate dated 3 March 2016.[54] The claimant gave no reason for leaving plumbing (after 10 years) other than he wanted a change. Mr Yaghi said he had never got a license but was currently pursuing his plumbing license.
[54] Page 86 of AD2.
Mr Yaghi denied any previous accidents or injuries. The claimant said he hit his left knee on the dashboard and there was “violent wrenching of the steering wheel on impact” causing injury to his left shoulder.
The Medical Assessor found:
(a)    no convincing evidence of dysmetria in the neck and no neurological signs or symptoms;
(b)    there was spasm and guarding in the lumbar spine;
(c)    the range of movement in the right shoulder (160 degrees flexion and 140 degrees abduction) was better than the left (110 degrees flexion and 90 degrees abduction) and there was pain with movement of the right shoulder;
(d)    there was marked asymmetry of the thighs but no signs of radiculopathy, and
(e)    there were some pain behaviours but otherwise consistency.
Medical Assessor Couch assessed WPI at 15% made up of:
(a)    neck – DRE I = 0%
(b)    back – DRE II = 5%
(c)    left shoulder = 6%
(d)    left knee = 4%
Medical Assessor Couch undertook the further assessment of WPI issuing a certificate dated 4 March 2019 following an examination on 4 December 2018[55]. In a 31 page very detailed assessment he dealt with the additional material provided by the insurer, put a number of inconsistencies to the claimant and conducted a further examination of the claimant. He also took a detailed history of an aggravating lifting incident at work in October 2014. He noted the claimant had improved. The claimant’s right shoulder demonstrated mild reduced movements (170 degrees of flexion and abduction), but the left shoulder flexion and abduction movements were limited to 130 degrees.
[55] Page 106 of the insurer’s bundle.
The claimant said he was working at the time driving a truck and delivering scaffolding equipment but did not do any manual loading or unloading.
He assessed WPI at 9% comprising:
(a)    neck – DRE I = 0%
(b)    back – DRE II = 5%
(c)    left shoulder = 4% (with a deduction for the right shoulder as a baseline)
(d)    left knee = 0%
A review of that assessment was undertaken by a Review Panel comprising Medical Assessors Oates, Gibson and Myers and their certificate was dated 27 August 2019.[56] The Panel did not re-examine the claimant and affirmed the impairment of 9% (5% for the back and 4% for the left shoulder).
[56] Page 137 of the insurer’s bundle
On 15 October 2019, Medical Assessor Home undertook an assessment of a variety of treatment disputes[57] including consultations with Mr Yaghi’s GP and an orthopaedic surgeon, physiotherapy treatment, diagnostic arthroscopy, medications and domestic assistance.
[57] Page 144 of the insurer’s bundle.
Medical Assessor Home noted the claimant had difficulty recalling previous left shoulder complaints and did not recall having imaging of his shoulder or seeing Dr Machart in 2011. He had a vague recollection of two motor vehicle accidents but denied any injury and said he had no physical symptoms at the time of the accident.
Dr Home has a history of the claimant returning to previous courier duties periodically then working as a truck driver delivering scaffolding material for his sister’s husband. The claimant said in March 2019 he obtained part time work transporting goods on pallets.
The claimant gave a history of aggravating his left shoulder after helping his father move a fridge (no date was given for this incident). He remembered the accident of June 2015 and says he was not injured in it.
On examination Dr Home found a full range of motion in the right shoulder but unreliable left shoulder motion due to pain behaviours.
Dr Home found the claimant injured his neck, lower back, left shoulder and left knee and said:
“I am satisfied that the mechanism of the motor vehicle accident could have caused an aggravation of the pre-existing [2011] supraspinatus tear. There has been some progression of the tear based on my review of the recent ultrasound, which now demonstrates a full thickness tear.
It is improbable that the progression of the tear relates to the mechanism of the motor vehicle accident but rather to subsequent workplace and other activities …”
Some treatment was found to be reasonable, necessary and related to the injuries. Medical Assessor Home was:
177.“…satisfied that the physical injuries may give rise to a need for assistance with heavier domestic chores such as gardening and heavy domestic cleaning such as vacuuming and mopping, and these requirements are causally related to the injuries sustained in the subject accident”.
The amount of care was referred to an Occupational Therapist (OT) to assess.
On 17 October 2019, Medical Assessor Samuel[58] assessed the claimant’s treatment needs for his psychiatric injuries. He found none of the disputed treatment (GP consultations, medication and domestic assistance) related to the injuries sustained in the accident or reasonable and necessary in the circumstances.
[58] Page 168 of the insurer’s bundle.
Medical Assessor Castle-Burton completed the OT assessment on 13 February 2020[59] and found “no evidence … to suggest that he has a reasonable and necessary need for domestic assistance.” Ms Castle Burton put the claimant’s pre-accident medical history to Mr Yaghi but he could not recall or was vague about them maintaining he had no symptoms at the time of the accident. She has a history of him being unable to complete outdoor tasks and paying someone to look after the yard and gardens.
[59] Page 179 of the insurer’s bundle.

She examined the claimant measuring right shoulder flexion and abduction at 150 degrees and significantly reduced left shoulder motion.

RE-EXAMINATION FINDINGS

Mr Yaghi was examined by Medical Assessor Assem at the Commission’s medical suites in Darlinghurst on 14 November 2023. His wife was present during the assessment. He understood the reasons why the assessment of Medical Assessor Herald was appealed, and he said he had viewed the video surveillance provided.

Pre-accident medical history

Mr Yaghi is how 40 years of age living in Sydney.
Medical Assessor Assem read out to the claimant his pre-accident medical history as set out in his statement and the records and asked Mr Yaghi to agree or disagree with the history. Mr Yaghi confirmed the following details were correct:
(a)    Mr Yaghi has a history of left shoulder issues, beginning with a dislocation of his left acromioclavicular joint in June 2001, which he said was effectively managed through conservative treatment, leading to symptom resolution;
(b)    in February 2011, he experienced another injury to the same shoulder, this time while pushing a tank whilst at work. He denied lifting the tank. Subsequent consultation with Dr Machart on 22 February 2011 revealed a partial articular surface tear in the supraspinatus tendon and concurrent bursitis, as identified through ultrasound imaging;
(c)    additionally, Mr Yaghi confirmed he was involved in two motor vehicle accidents: the first on 11 April 2013, where his vehicle was T-boned, and the second on 12 July 2013, resulting in his vehicle rear-ending a taxi, leading to the vehicle being written off. Following these incidents, Mr Yaghi confirmed that he suffered exacerbations of his previous problems but that his left shoulder symptoms had abated before the current car accident, and
(d)    finally he accepted he had been involved in a workplace lifting incident in October 2014 and a further motor accident in July 2015 which also caused minor injury and temporary aggravation of his underlying shoulder problem.
It was put to Mr Yaghi that he had not disclosed any previous or other shoulder issues to other examiners including Dr Giblin and Dr Guirgis. Mr Yaghi responded that he had not been specifically asked about his previous shoulder conditions and therefore did not tell doctors about them.

Work history

Mr Yaghi described a background in electrical studies, but that he pursued a career in plumbing. Before the accident, he was a subcontracting courier for Toll, delivering pharmaceuticals in the Sydney Metro area, a role that involved minimal heavy manual handling.
Mr Yaghi said he moved from courier work to various roles after the accident, including truck driving and plumbing, with variable hours depending on the availability of work.
Mr Yaghi said he returned to the physically demanding work as a plumber (on the tools) one year after the motor vehicle accident due to financial constraints and this was only possible with the regular use of analgesia.
Mr Yaghi confirmed the accuracy of the video evidence and agreed that he was shown working for MMM Plumbing in 2021 and 2022. Mr Yaghi was rather vague about this work. He said he was the director of the company and that his brother who he works with is not qualified (licensed) to work as a plumber. He also confirmed he had returned to plumbing one year after the accident.

History of injury

On 8 April 2014, Mr Yaghi said he was driving a Toyota Hiace van along the right-hand lane of Edwin Flack Avenue within the Sydney Olympic Park when a Toyota Corolla sedan, driven by an older driver in the adjacent left lane, abruptly attempted to perform U-turn directly in his path. Mr Yaghi had insufficient time to brake and collided head-on with the driver's side of the Corolla.
On impact he said his left knee struck the dashboard, and he felt an injury to the cervical spine. He was wearing a seatbelt and his airbags did not deploy. His vehicle was towed away and later repaired. The police and ambulance attended the scene. He was in shock and said he did not experience any discomfort immediately after the accident. By the time he arrived home, there was discomfort involving his neck, left shoulder, back and left knee.
He said he did not injure his right knee in the accident.

History of symptoms and treatment following the accident

Following the accident, Mr Yaghi consulted Dr Youssef who arranged a plain X-ray of his left knee, foot and ankle that was reported to be normal apart from a bipartite patella. An MRI scan of his left shoulder on 26 May 2014 revealed a partial tear to the supraspinatus with a possible Hill Sachs lesion (suggestive of the earlier dislocation). An MRI scan of his left knee showed an intact meniscus with no cause for the left knee pain identified.
Mr Yaghi said he received physiotherapy treatment and was given an ultrasound guided cortisone injection into his left shoulder on 31 July 2014. A CT scan of the lumbar spine on 26 November 2014 showed a moderate sized bulge at L5/S1 with possible impingement of the right S1 nerve root.
The claimant’s GP, (possibly Dr Mary Girgis or Dr Mary Gabriel) arranged further imaging in May 2019 which showed a full thickness tear of the supraspinatus. The claimant was referred to Dr Rahme who performed arthroscopic surgery and rotator cuff repair on 9 December 2020. Post-operatively, Mr Yaghi said there was no significant improvement in his condition.
The claimant was asked about the video surveillance images showing him to have a good range of motion in both shoulders. He repeated that he was taking analgesia which enabled him to continue working to support his family.

Current symptoms

Mr Yaghi reports experiencing intermittent discomfort in the anterior-lateral aspect of his left shoulder. His neck condition fluctuates, with periods of both relief and discomfort, though he currently does not report significant neck pain.
His primary concern is persistent lower back discomfort, which is particularly severe in the early morning hours. He describes waking up with intense pain, rating it as 10/10 on the pain scale, which subsequently reduces to a discomfort level of 6/10 later in the day. This pain radiates down the posterior aspect of both legs, accompanied by sensations of pins and needles in his calves. Mr Yaghi notes a limited capacity to stand for more than a few minutes at a time. What about the analgesia he is taking every day for his shoulder pain?
While he is able to sit, he says prolonged periods in this position exacerbates his pain. He mentions that he can walk but requires rest breaks approximately every 15-20 minutes.
Mr Yaghi says he resumed work as a plumber, albeit with variable hours dependent on the availability of work one year after the accident and then again one year after his shoulder operation. Mr Yaghi was vague about the details of the work he had done since the accident.
Mr Yaghi acknowledged the use of daily pain medication to manage his pain and facilitate his ability to work. He emphasised that the effects of these medications vary, impacting his functional capabilities from time to time. He did not provide any further details ab out the name or quantity of the medication he was taking.

Examination

He appeared well and in no apparent physical distress. He sat comfortably throughout examination and mobilised with a normal gait. He was informed at the time of the examination not to engage in any manoeuvre beyond what he could tolerate, or which may cause harm or injury.

Cervical spine

Examination of cervical spine revealed tenderness over his cervical spine. There was no muscle guarding or spasm. There was a mild symmetrical restriction in cervical motion to 3/4 of normal range in flexion, extension, lateral flexion and rotation. There was no asymmetry of movement or spinal dysmetria.
Neural tension signs were negative.
Neurological examination of his upper extremities was normal with normal power, tone, sensation and reflexes. There was no significant measurable difference in circumference of his upper arms or forearms.

Lumbar spine

Mr Yaghi reported tenderness on palpation. There was no muscle guarding or spasm. In forward flexion he was able to reach his knees. Extension would not be attempted, he said due to fear of pain. Lateral flexion and rotation were symmetrically reduced to 3/4 of normal range. There was therefore some asymmetry of movement (lumbar spinal dysmetria) in the extension and flexion plane of movement.
Mr Yaghi complained of non-verifiable radicular symptoms involving his lower extremities namely intense pain radiating down both legs.
His knee and ankle jerk reflexes were brisk and symmetrical. Straight leg raising in the supine position was 40° on the left and 60° on the right. Although Mr Yaghi reported this was accompanied by tingling in his calves, neural tension signs were negative in a seated position. Power, tone and sensation in the lower limbs was normal. There was no measurable difference in the circumference of his thighs or calves.

Upper extremity

Mr Yaghi was definitely muscular in the shoulders and upper limbs and had mild callous formation on both of his hands confirming the history he gave Medical Assessor Assem of a return to heavy work a year after the accident and then the surgery.
He had healed arthroscopic surgical scars over his left shoulder. There was tenderness anteriorly. Provocative tests for impingement were only mildly positive.
Active range of motion was measured using a goniometer and three times. There was a consistent measurement as follows:

Shoulder Movements

Active ROM Measured

RIGHT

Active ROM Measured

LEFT

Flexion

140

100

Extension

40

30

Adduction

40

30

Abduction

110

90

Internal Rotation

80

80

External Rotation

40

30

Mr Yaghi reported that his right shoulder movements were reduced due to pain and that he felt this pain because he was using his right shoulder more because of the injury to his left.
His left shoulder movements revealed a greater restriction than what could be seen on video surveillance. Mr Yaghi said he had not taken any analgesia before the examination with Medical Assessor Assem and therefore felt pain which restricted his movement.

Lower extremity

Mr Yaghi reported left knee pain. There was no effusion in the left knee found on careful examination (and noting the finding of Medical Assessor Herald) and no tenderness on palpation.
Mr Yaghi demonstrated a normal range of knee motion in both knees on flexion and extension.
There were occasional fine crepitations in both the left (injured) and right (uninjured) knee.

Comments on consistency

During assessment, Mr Yaghi's shoulder movements displayed consistency upon repeated testing.
However, there were notable discrepancies when compared to the range of motion documented in video surveillance and variation to the findings reported by other medical examiners.
These inconsistencies, particularly in the context of the video surveillance evidence and previous medical assessments, were highlighted and discussed with Mr Yaghi. His explanation was that the level of his functionality varies with his pain and that his pain varies with the level of medication he consumes.

CONSIDERATION OF THE ISSUES

Is the claimant’s evidence reliable?

The insurer says at part 10 of its submissions:
“[10.2] The Claimant’s presentation has included incomplete or inaccurate histories in relation to prior and subsequent medical history, exaggeration or inconsistent behaviour during physical examinations, and statements as to his capacity for work and domestic tasks which have been proven false by the insurer’s surveillance.
[10.3] Any Assessor conducting an assessment of the Claimant should be extremely cautious in accepting any of the Claimant’s evidence in the absence of objective corroborating evidence.
[10.4] Any reasons for decision need to comprehensively address the numerous inconsistencies and issues in relation to the Claimant’s credit and their relevance to the assessment of his whole person impairment, if any.”
The claimant’s statement (see paragraph 49) provided at the request of the Panel addresses a number of the matters raised by the insurer but not all:
(a)    the claimant accepts he had previous injuries but says they did not affect him at the time of the accident;
(b)    he said he had no recollection of the February 2011 left shoulder injury or of the ultrasound undertaken at that time or of the referral to Dr Machart – and says he must have been confused with someone else with the same name;
(c)    he made “no comment” about the post-accident left knee ultrasound revealing no cause for his pain;
(d)    the explanation for a two-year absence of complaints about his back, neck and shoulders in Dr El Jaam’s records was due to COVID;
(e)    he was not the author of the MMM Plumbing letter but does not say who was, and
(f)    he acknowledges the surveillance film but says he was on medication to enable him to do those things.
While the claimant appears in that statement to have been more forthcoming about his pre-accident history, the statement is inconsistent with one important element of the claimant’s history given to Medical Assessor Assem. The claimant told Medical Assessor Assem that he now recalls a February 2011 incident involving his left shoulder but says he was pushing a water tank at work not lifting it. He now recalls he saw Dr Machart for treatment of that shoulder in 2011 and had an ultrasound in respect of that shoulder in 2011.
The claimant is a director of MMM Plumbing Services according to ASIC records and according to the communication from that company obtained by the insurer. The communication says this is an arrangement between the two because Mr Yaghi’s brother has been blacklisted and is the real owner and operator of the company. While the claimant says he was not the author of the communication provided to the insurer he did not identify who was. The author of that letter suggests the claimant is limited in his capacity to work, did not do any physical work and was involved only in making phone calls and viewing sites before and after others did the physical work.
The claimant later told Medical Assessor Assem that he returned to the physically demanding role of a plumber, on the tools, a year after the accident and then again, a year after his shoulder surgery and has continued to work in that physically demanding role ever since. This is inconsistent with the MMM plumbing letter and the histories given by the claimant to Dr Machart in 2022 (who has a history the claimant had not worked for seven years) and Dr Roldan in March 2022 (had not worked since working as a truck driver after leaving Toll and was receiving Centrelink partial disability payments). Dr Lee in November 2021 has a record that the claimant was a truck driver and stopped this work in April 2020 after his shoulder surgery and had worked for only two weeks in his brothers’ business. He told Dr Guirgis in September 2021 that he had not worked since the shoulder surgery.
The Panel also noted the film records the claimant gardening for 20 plus minutes on 24 March 2021 whereas the claimant complained of an inability to undertake domestic chores including lawn mowing to Ms Castle-Burton in February 2020.
In the past, the claimant has not been forthcoming with details of his pre-accident injuries and conditions. He failed to disclose any relevant pre-accident conditions on his signed claim form or to Dr Maniam, Dr Guirgis and Dr Giblin. The claimant disclosed to Dr Shatwell previous neck, back and little finger symptoms before the accident but none of the pre-accident shoulder symptoms. The claimant was asked why he did not disclose the left shoulder problems he had before the accident and his response was that he was not asked. The Panel does not accept this. Dr Giblin says the claimant denied any previous injuries. DrGuirgis records that the claimant denied any previous relevant history. The Panel is of the view that these two very experienced medico-legal practitioners would not record the claimant’s denial unless they had asked him about previous problems and the claimant responded. The Panel notes the claimant did not disclose left shoulder symptoms to Dr Shatwell and Dr Pierides but when confronted did concede previous accidents. In 2016 the claimant did not disclose any relevant conditions to Medical Assessor Couch when questioned. In 2018, the claimant remembered his teenage shoulder dislocation but did not remember the 11 February 2011 water tank incident.
The claimant has never filed submissions addressing the issue of credit in response to those of the insurer. The Panel notes that none of the claimant’s experts have provided reports commenting on the surveillance film and the claimant’s statement says he has not provided the film to any of his doctors. It is also noteworthy that there has been no expert from the claimant to counter the opinions expressed by Dr Roldan that the claimant is over-reporting his physical symptoms.
The Panel is of the view that the claimant’s evidence is unreliable. The Panel is of the view that the claimant’s evidence about the nature and extent of his symptoms should not be accepted without documented support and objective findings.

What injuries were caused by the accident?

Neck

The claim form, Dr Yousef’s certificate and records note a neck injury. Dr Maniam recorded some improvement in May 2014 and there was a failure to attend a third appointment on in July 2014 suggesting further improvement (and no need for the third appointment). The physiotherapist does not mention a neck injury and there appears to be no treatment for it since January 2015, sporadic attendances for physiotherapy in 2015 and rare mentions of neck pain in the treatment records.
There have however been consistent complaints of neck pain in the medico-legal reports.
On examination by Medical Assessor Assem, there was a record of “fluctuating neck symptoms” and “none at the moment” and on examination there was some restriction of movement but no asymmetry.
It is the Medical Assessor’s clinical judgment that the claimant sustained a soft tissue injury to his neck. Noting the claimant’s history given to Medical Assem that he has worked as a plumber undertaking heavy work since one year after the accident and again one year after the shoulder surgery, the Panel is of the view that any effect of that soft tissue neck injury has resolved and that any current impairment to the claimant’s neck function is not a result of the soft tissue injuries caused by the accident.

Back

The claim form, medical certificate as well as the clinical notes of the GP and Dr Maniam include a report of lower back injury. There were no reports of significant sciatica or radicular symptoms in the treating records in the early years.
Dr Shatwell for the insurer recorded in December 2014 complaints from the claimant of pain radiating to the left thigh and left calf from the lower back. Dr Maniam (treating) and Dr Giblin (medico-legal) do not record any such complaints when they examined the claimant before December 2014. The Panel would expect there to be records of sciatic complaints if there were any at any stage prior to December 2014 particularly in the records of Dr Maniam who was a treating doctor. Dr Guirgis in March 2015 has a history of lower back pain and stiffness (no mention of sciatica).
Medical Assessor Couch in December 2018 recorded complaints of intermittent radiation to the back of the thighs and sometimes to the calf more marked on the left than right. In October 2019, Medical Assessor Home did not record any radicular symptoms of radiating pain.
Complaints of sciatica, emerge for the first time in the treating records of Dr El Jaam in March and June 2021.
In September 2021 Dr Guirgis records worsening back pain with attacks of left sided sciatic radiation.
The radiology shows progression of degenerative changes between the CT scan of November 2014 and MRI in July 2021.

It is the Medical Assessor’s clinical judgment that the claimant sustained a soft tissue injury to his lower back in this accident. While the claimant has now conceded he has worked in heavy plumbing since a year after the accident and therefore some of his current symptomatology might be due to that work, the Panel accepts the soft tissue injury may still be causing problems for the claimant with his lower back.

Left knee

The claim form and the medical certificate supported by the initial notes document a left knee injury.
SportzFizz records a “long history of problems with the left shoulder and left knee”. Imaging studies in 2014 show a constitutional problem (bipartite patella) and no explanation for the claimant’s complaints of symptoms. The Medical Assessors note that a bipartite patella does not usually cause symptoms but can become symptomatic if the knee is injured or overused or there is strenuous physical activity.
The Panel notes the claimant complained to Medical Assessor Assem of pain in the left knee, but on examination pain was not elicited with testing although there was, in both knees, tenderness, no effusion (no swelling) and a completely normal range of motion in both knees. While there was some crepitation it was found in both knees and the crepitation was fine. The Panel also notes that Dr Giblin in 2014 found no effusion and a stable knee with some tenderness. Dr Shatwell in 2014 and Dr Pierides in 2016 recorded no crepitations, no effusion and in the case of Dr Shatwell a normal range of movement. Medical Assessor Couch found no significant crepitation and did not record an effusion in 2016, there was no crepitation at all in 2018 and no effusion noted. Medical Assessor Home did not record any crepitation in 2019 (and records there was no joint effusion) and Medical Assessor Herald and Dr Machart found no crepitation either. Dr Guirgis did not record any left or right knee symptoms in September 2021.
The Panel notes Medical Assessor Herald in October 2022 was the first and only examiner to record a finding of an effusion in the left knee. There was no swelling in either knee when Medical Assessor Assem examined the claimant. Medical Assessor Assem found fine crepitations whereas no other examiner has found or recorded crepitations. This suggests to the Panel that the claimant has developed new symptoms (manifesting in an effusion in October 2022 and crepitations in November 2023). It is not medically plausible that these symptoms could relate to the soft tissue injury sustained eight to nine years ago.
The Panel accepts the contemporaneous records and accepts the claimant hit his left knee in the accident and sustained a soft tissue injury to his knee. The Medical members of the Panel, in the exercise of their clinical judgment do not accept that there is now any symptomatology as a result of that soft tissue injury. Both knees (injured and uninjured) show similar symptoms and both knees are congenitally bipartite. Noting the pre-accident history, the physiotherapist’s notes recording longstanding complaints in the left knee and the claimant’s heavy work as a plumber, the Panel is of the view any effects of the soft tissue injury sustained in the accident have settled and any continuing or new symptoms in the left knee are not caused by the accident.

Left shoulder

The claimant nominated a left shoulder injury in the claim form and Dr Youssef’s medical certificate and notes record contemporaneous complaints of left shoulder pain. The claimant was the driver of a motor vehicle with the seat belt going over his right shoulder and there was an impact from the left. While this mechanism of injury does not usually lead to a left shoulder injury, the medical members of the Panel accept the history given by the claimant that he was gripping the steering wheel at the time of impact. On the basis of that history and the contemporaneous notes the Panel finds that the claimant could have injured his left shoulder in the accident and did injure his left shoulder.
It is the clinical judgment of the Medical Assessors that the nature of the injury was a soft tissue injury on a background of a previous history of left shoulder injuries, in particular a previous partial tear of the rotator cuff evident in imaging undertaken in February 2011. Imaging undertaken in April 2014 suggest a further tearing of the supraspinatus and by 2019 the claimant had developed a full thickness tear of the supraspinatus which was repaired with surgery.
The Panel notes there have been incidents and accidents that are also likely to have contributed to the worsening of the claimant’s left shoulder condition after February 2011 including the April 2013 car accident and the current car accident. Since then, there have been further incidents including the October 2014 lifting incident at work, a July 2015 motor accident (where the claimant’s vehicle was hit with such force that it tipped onto its side) and the left shoulder strain whilst lifting the refrigerator reported to Medical Assessor Home. And, if the claimant’s work history given to Medical Assessor Assem is correct, the claimant has worked as a plumber since a year after the accident and then again, a year after the surgery.
The Panel is not satisfied that the claimant’s current left shoulder presentation is wholly a result of the soft tissue aggravation injury caused by the accident but is satisfied that the accident has contributed to the current presentation.

Right shoulder

The claimant alleges a right shoulder injury consequent upon the left shoulder injury. He says because his left shoulder was injured, he has been favouring and overusing his right shoulder.
Right shoulder symptoms appear in the treating records of Dr Youssef in March 2015, when the claimant was supposedly on light duties and again in October 2015 (when Mr Yaghi may have returned to his plumbing work). Right shoulder pain was reported in Dr Shatwell’s report of December 2015. Medical Assessor Couch and Dr Guirgis also noted this in September 2021.
No investigations have been ordered of the right shoulder by any of the claimant’s GPs.
In October 2014, Dr Giblin records a full range of motion in the right shoulder as did Dr Guirgis in March 2015, Dr Pierides in April 2016 and Medical Assessor Home in March 2019. In between some of those examinations there has been measurement suggesting restriction of movement (see attachment A at the end of these reasons) and deterioration in restriction since 2016.
The claimant gave a history to Medical Assessor Assem that he has worked in physically demanding work as a plumber from one year after the accident with the aid of daily medication and again one year after his shoulder surgery.
The claimant says his right shoulder symptoms of pain and restriction of movement are due to him favouring the use of his uninjured arm in activities of daily living and work-related activities to minimise the pain he feels in his injured shoulder.
The claimant however says that he takes medication so that he can use both his injured and his uninjured arms and the surveillance video suggests he is using both without any significant restriction and certainly not favouring one arm over the other.
The medical members of the Panel note that the examination of the claimant’s upper limbs showed no wasting in the upper limbs or shoulder musculature which would suggest there is no favouring of one limb over the other.
On the basis of the objective material, the medical members of the Panel are not satisfied there has a consequential overuse injury of the claimant’s right shoulder. Any pain reported by the claimant is not accepted due to the Panel’s concern about the unreliability of his evidence and any restriction of movement in the right shoulder is, in the Panel’s view, a result of the claimant’s physical work and likely degenerative changes and not the accident.

ASSESSMENT OF IMPAIRMENT

How is spinal impairment assessed?

Assessment of the spine required consideration of Chapter 3 of AMA4 Guides. Only the diagnostic related estimate (DRE) method of assessment is allowed (cl 1.111 of the Guidelines).
The spine is divided (cl 1.131) into three regions:
(a)    cervical;
(b)    thoracic, and
(c)    lumbar.
In Mr Yaghi’s claim, he alleges injury to the cervical and lumbar regions.
There are five diagnostic related categories and a number of indicia provided to assist an examiner or assessor determining which of the categories is the correct category (see Table 7). The first is DRE category I which is selected if there are symptoms which may include pain.
A classification of DRE category II requires there to be:
(a)    pain with guarding; or
(b)    non-uniform range of motion (that is dysmetria), or
(c)    non-verifiable radicular complaints defined in table 6.8 /8 as:
(i)symptoms (such as shooting pain, a burning sensation or tingling), and which
(ii)follow the distribution of a specific nerve root but where there are no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes.
DRE category III requires there to be two or more of the five signs of radiculopathy which are spelt out in cl 1.138:
264.   “(a) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 8 in these Guidelines);
(b)    positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 8 in these Guidelines);
(c)    muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 8 in these Guidelines) ;
(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.”

What is the neck impairment?

As the Panel has found that the claimant’s accident-related neck injury has resolved, there is no impairment to be assessed in respect of it.
Had there been a neck injury continuing to cause symptoms the Panel notes the claimant does not satisfy the requirements of DRE II as there was no guarding, no dysmetria and no non-verifiable radicular complaints. The Panel also notes no neurological signs of radiculopathy on examination warranting a finding of DRE III.
The claimant would have been assessed as DRE I which translates to 0% WPI.

What is the lower back impairment?

There was no muscle guarding but there was dysmetria in one plane of motion when Mr Yaghi was examined (flexion and extension). While the claimant complained of intense pain radiating down both legs, the Panel has earlier found that this radicular symptomatology is likely not related to the accident.
However, on the basis of the presence of dysmetria at the examination, the Panel assesses the claimant as falling into DRE Category II which attracts a WPI of 5%. The Panel notes the consistent assessments by previous Medical Assessors of a similar impairment.
Mr Yaghi does not satisfy a finding of DRE III as there were no signs of radiculopathy (within the meaning of the Guidelines) present at the examination with Medical Assessor Assem.

How is lower limb impairment assessed?

The assessment of lower extremity impairment is governed by Chapter 3, section 3.2 of the AMA4 Guides. There are 13 methods of assessment provided for as follows:
(a)    limb length discrepancy (3.2a);
(b)    gait derangement (3.2b);
(c)    muscle atrophy (3.2c);
(d)    manual muscle-testing (3.2d);
(e)    range of motion (3.3e);
(f)    joint ankylosis (3.2f);
(g)    arthritis (3.2g);
(h)    amputations (3.2h);
(i)    diagnosis-based estimates (3.2i);
(j)    skin loss (3.2j);
(k)    peripheral nerve injuries (3.2.k);
(l)    causalgia and reflex sympathetic dystrophy (3.2l), and
(m)     vascular disorder (3.2m).

Is there a left knee impairment?

The Panel has previously found that any injury the claimant sustained to his left knee has resolved leaving no impairment caused by the accident.
If the claimant did have symptoms and an ongoing impairment as a result of the accident, the usual method of assessment is range of motion. As the claimant has a normal range of motion in both the injured left knee and uninjured right knee, this would result in a 0% impairment.
The Medical Assessors note that it is also common in motor accidents, when there is a history of a blow to the knee causing symptoms in the knee, for the arthritis method of assessment to be used. The footnote to table 62 at page 83 of AMA4 Guides provides that where there is a history of direct trauma, a complaint of patellofemoral pain and crepitation on physical examination, a 2% WPI can be given. Mr Yaghi did complain of pain, there was fine crepitation found and there is a history of direct trauma.
Clause 1.72 of the Guidelines provides that:
“If the contralateral uninjured joint has a less than average mobility, the impairment value(s) corresponding with the uninjured joint can serve as a baseline and are subtracted from the calculated impairment for the injured joint, only if there is a reasonable expectation that the injured joint would have had similar findings to the uninjured joint before injury. The rationale for this decision must be explained in the impairment evaluation report.”
Mr Yaghi has not complained of hitting his right knee in the accident. Right knee symptoms were first documented in the GP notes in May 2014, investigated with radiology suggesting pre-patella bursitis) but resolved according to Dr Rahme’s records in 2015. The claimant has not referred his right knee for impairment assessment. The Medical Assessors therefore consider it appropriate for the claimant’s right knee to be assessed as an uninjured joint for the purposes of a baseline impairment.
Noting that the claimant’s examination findings were the same in both the injured and uninjured knees (no effusion, mild crepitations, normal range of motion, tenderness) the Panel is of the view that if 2% was to be allowed for the injured left knee, on the basis of the footnote to table 62, then 2% should be deducted on the basis of a similar impairment in the uninjured knee. The net effect of that would be a 0% WPI if the Panel had been satisfied there was an injury to the left knee continuing to cause symptoms.

How is upper limb impairment assessed?

The assessment of upper extremity impairment (UEI) is governed by Chapter 3, section 3.1 of the AMA4 Guides. The upper extremity is divided into four regions: the shoulder, the elbow, the wrist and the hand. There are specific rules for combining certain impairments (such as the four different impairments for the index finger are combined to determine the index finger impairment) and adding (such as the impairments for the thumb and the fingers are added to obtain a hand impairment). Regional impairments such as the hand and wrist impairments are combined to obtain a total UEI which is then converted to a WPI using Table 3 on page 20 of AMA4 Guides.
There are several methods of assessment:
(a)    amputation (part 3.1b);
(b)    sensory loss of the digits (part 3.1c);
(c)    abnormal range of motion (part 3.1d);
(d)    peripheral nerve disorders (part 3.1k);
(e)    vascular disorders (part 3.1l), and
(f)    other disorders (part 3.1m).
The abnormal range of motion requires the measurement of six functional units of motion:
(a)    flexion and extension;
(b)    abduction and adduction, and
(c)    internal and external rotation
Measurement of motion is done using a goniometer and only active motion (not passive) is measured. Each of the six UEI figures is added to get a total UEI percentage impairment which is then converted to a WPI in accordance with Table 3 on page 20 of AMA4 Guides.
Clause 1.50 provides guidance for the use of the range of motion method as follows:
“Range of motion is assessed as follows:
1.50.1 A goniometer should be used where clinically indicated.
1.50.2 Passive range of motion may form part of the clinical examination to ascertain clinical status of the joint, but impairment should only be calculated using active range of motion measurements.
1.50.3If the medical assessor is not satisfied that the results of a measurement are reliable, active range of motion should be measured with at least three consistent repetitions.
1.50.4If there is inconsistency in range of motion, then it should not be used as a valid parameter of impairment evaluation.
1.50.5 If range of motion measurements at examination cannot be used as a valid parameter of impairment evaluation, the medical assessor should then use discretion in considering what weight to give other available evidence to determine if an impairment is present.”
Clause 1.51 of the Guidelines provides for the adjustment of the assessment of an injured joint by any impairment of the uninjured joint.
“If the contralateral uninjured joint has a less than average mobility, the impairment value(s) corresponding with the uninjured joint can serve as a baseline and are subtracted from the calculated impairment for the injured joint only if there is a reasonable expectation that the injured joint would have had similar findings to the uninjured joint before injury. The rationale for this decision must be explained in the impairment evaluation report.”

What is the shoulder impairment based on range of motion?

The claimant’s left shoulder impairment based on the measurements taken by Medical Assessor Assem are as follows:
(a)    flexion  100 degrees    5% UEI
(b)    extension               30 degrees     1% UEI
(c)    Abduction               90 degrees     1% UEI
(d)    adduction               30 degrees     4% UEI
(e)    internal rotation      80 degrees     0% UEI
(f)    external rotation     30 degrees     1% UEI.
The total of these figures is a 12% UEI for the left shoulder.
The claimant’s right shoulder impairment based on the measurements taken by Medical Assessor Assem are as follows:
(a)    flexion  140 degrees    3% UEI
(b)    extension               40 degrees     1% UEI
(c)    abduction               110 degrees    3% UEI
(d)    adduction               40 degrees     0% UEI
(e)    internal rotation      80 degrees     0% UEI
(f)    external rotation     40 degrees     1% UEI.
The total of these figures gives 8% UEI for the right shoulder.
As the Panel had earlier found no consequential overuse type injury of the claimant’s right shoulder caused by the accident and that there is no right shoulder impairment resulting from the motor accident.
When there is an injured joint, such as a shoulder and an uninjured joint, such as the other shoulder, the uninjured shoulder is used as a baseline measure in accordance with cl 1.51 and 1.52 of the Guidelines. If that applied in this case, the total UEI of the right shoulder (8%) would have been subtracted from the total UEI of the left (12%) to give a UEI of 4% which would then be converted to a WPI of 2% using table 3 on page 20 of the AMA4 Guides.
While the claimant’s right shoulder was not injured in the accident or consequentially because of the accident, it is a shoulder that does not have a normal range of motion. The Panel is therefore of the view that the claimant’s right shoulder should not be used as a baseline measure.
For the reasons that appear below, the Panel is of the view that the range of motion method should not be used.

Is the range of motion method an appropriate method of assessment?

Mr Yaghi had previous injuries to his left shoulder that he says subsided prior to the subject motor vehicle accident. Although there was no objective evidence of a pre-existing symptomatic impairment, he did have a partial thickness articular surface tear to the supraspinatus tendon in 2011 with similar pathology documented immediately after the 2014 motor vehicle accident. The Medical Assessors note that he was able to return to physically demanding work as a plumber and over time and the natural progression of the rotator cuff pathology would be to a full thickness tear which has led to the arthroscopic surgical repair.

The Panel also notes that the claimant had a right shoulder injury in 2002 and Mr Yaghi’s work-related activities before the car accident would have impacted the function of that shoulder.
The Panel notes that in December 2014 the claimant was examined by Dr Shatwell for the insurer who recorded that “both shoulder girdles had a good range of movement” with some limitation of movement and pain at the extremes of movement. Abduction and flexion were measured at approximately 170 degrees. However, by December 2015 the range of abduction and flexion motion in the left side had deteriorated to 90 degrees. The Panel notes according to Dr Shatwell, the claimant had returned to work at that stage and the Panel notes the claimant told Medical Assessor Assem that he had returned to work doing heavy plumbing work at that time.
The comparative table of medical assessments shows that the claimant’s range of movement has never been as good as it was when Dr Shatwell examined the claimant in 2014 (170 degrees) but that Medical Assessor Couch found a better range of motion than the 90 degrees found in December 2015 when he examined the claimant in 2016 and 2018. The Panel also notes that Dr Rahme measured the range of movement in flexion and extension in May 2020 (before the claimant’s surgery) at 130 degrees.
The variable range of left and right shoulder motion over the past nine years combined with the nature of the claimant’s stated work activities and the evidence from the video surveillance would indicate that range of motion is not a valid and reliable method of assessing his level of impairment.

How then should impairment be assessed?

In accordance with cl 1.50.5 of the Guidelines if the range of motion method cannot be used, the Panel “should then use discretion in considering what weight to give other available evidence to determine if an impairment is present.”
It is the Medical Assessor’s view that Mr Yaghi’s impairment should be assessed in accordance with section 3.1m of the AMA4 Guides. The continuing effects of any soft tissue injury from the motor accident (and further tear) could produce an impairment similar to an arthritic condition which results in mild crepitation of the left acromioclavicular joint.
The acromioclavicular joint is given (in Table 18 page 58 of AMA4 Guides) an upper extremity value of 25%. Mild crepitations in the left joint attracts, in accordance with Table 19, a 10% joint impairment. When the 10% joint impairment is multiplied by the 25% joint value this produces a 2.5% UEI which is rounded up to 3% UEI and then converted to 2% WPI.
While the Panel has reservations about whether there is any impairment resulting from the injuries caused by the accident, due in particular to the history from the claimant given to Medical Assessor Assem that he has been working as a plumber since 2015 (less the year after the surgery), the Panel will allow the impairment of 2% as assessed using this method.

CONCLUSION

In summary the Panel is satisfied that the claimant has the following impairments resulting from the injuries sustained in the accident:
(a)    cervical spine         resolved, or     0%
(b)    lumbar spine          DRE II            5%
(c)    left knee                 resolved, or     0%
(d)    left shoulder  2%
(e)    right shoulder         no injury caused by the accident.
The claimant’s combined WPI is 7% which is not greater than 10%.
As the Panel has come to a different conclusion to Medical Assessor Herald, it follows therefore that his certificate should be revoked.

ATTACHMENT A – SHOULDER IMPAIRMENT ASSESSMENTS

Movement Left Shoulder in degrees	Med Ass Couch March 2016	Med Ass Couch December 2018	Review Panel August 2016	Med Ass Herald October 2022	Review Panel November 2023
Flexion	110	130	Not measured	90	100
Extension	40	30		50	30
Abduction	90	70		90	90
Adduction	20	70		50	30
Internal rotation	60	60		60	80
External rotation	70	70		60	30

Movement Right Shoulder in degrees	Med Ass Couch March 2016	Med Ass Couch December 2018	Review Panel August 2016	Med Ass Herald October 2022	Review Panel November 2023
Flexion	160	170	Not measured	150	140
Extension	50	60		50	40
Abduction	140	130		150	110
Adduction	40	50		50	40
Internal rotation	80	70		80	80
External rotation	90	90		80	40

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	140	100
Extension	40	30
Adduction	40	30
Abduction	110	90
Internal Rotation	80	80
External Rotation	40	30

[2023] NSWPICMP 672

13 December 2023