Insurance Australia Limited t/as NRMA Insurance v Younas

DETERMINATION OF REVIEW PANEL
CITATION:	Insurance Australia Limited t/as NRMA Insurance v Younas [2022] NSWPICMP 212
CLAIMANT:	Muhammad Younas
INSURER:	Insurance Australia Limited t/as NRMA Insurance
REVIEW PANEL:	Member Belinda Cassidy Dr David McGrath Dr Shane Maloney
DATE OF DECISION:	3 May 2022
CATCHWORDS:	MOTOR ACCIDENTS- Medical assessment of whole person impairment (WPI) and insurer’s review under section 7.26 of the Motor Accidents Injuries Act 2017; collision involving side impact from the left. Injuries alleged included cervical spine, left and right shoulders, left and right knee; original assessment assessed WPI at 12%; attendance at hospital for left knee pain and possible neck injury. After five weeks referral for bilateral shoulder ultrasounds; right knee pain allegedly developed six months after accident; issues of causation and consistency; Held- neck injury now DRE 1; no direct injury to shoulders but shoulder restriction due to neck injury; injury to left knee but not right knee; in terms of WPI assessment shoulder movement inconsistent therefore range of motion method not adopted; left knee injury had recovered and no WPI; total WPI 3%; no real matter of principle.
DETERMINATIONS MADE:	The Review Panel: 1. Revokes the certificate of Medical Assessor David Gorman dated 29 July 2021. 2. Certifies that the degree of Mohammad Younas’ permanent impairment resulting from the injuries caused by the motor accident on 26 September 2018 is not greater than 10%.

STATEMENT OF REASONS

INTRODUCTION

On 26 September 2018, Mr Younas was driving his car along a straight stretch of road in Bardwell Park when another car came out of a street on the left and collided with the passenger side of Mr Younas’ vehicle.
Airbags did not deploy but Mr Younas’ car was towed from the scene and eventually written off. Police did not attend, and Mr Younas took a taxi to the hospital.
Mr Younas says he was injured and has made a claim against NRMA Insurance for damages (the third-party insurer of the vehicle that collided with Mr Younas’ car). NRMA admitted liability for that claim on 28 October 2020[1].
[1] Paragraph 2 of the Insurer’s submissions refer to a claim for statutory benefits, liability for which was also accepted. Copies of the claim forms for both the statutory benefits or damages claims have not been provided.
As part of his claim, Mr Younas seeks damages for non-economic loss. A dispute arose between the claimant and NRMA about whether Mr Younas is entitled to non-economic loss damages[2] and that dispute was referred to the Dispute Resolution Service (DRS) of the State Insurance Regulatory Authority and determined (in the claimant’s favour) by Medical Assessor Gorman on 9 May 2021.
[2] The claimant’s original submissions to the Dispute Resolution Service (A2) page 4 of the claimant’s bundle suggest a request was made to the insurer to concede WPI at greater than 10% on 2 September 2020 and that on 25 September 2020 the insurer advised it refused to make the concession.
The insurer was dissatisfied with that decision and lodged an application for review with the Personal Injury Commission (the Commission). Following the President’s delegate’s decision of 29 July 2021, the President has convened a panel to undertake the review of Assessor Gorman’s assessment (the Panel).

LEGISLATIVE FRAMEWORK

Jurisdiction

Mr Younas’ claim is made under the Motor Accident Injuries Act 2017 (the MAI Act). This Act provides a scheme for the compulsory third-party insurance of motor vehicles registered in New South Wales and a scheme of statutory benefits and damages to compensate persons injured in motor accidents in New South Wales.
While Mr Younas has made a claim for statutory benefits, it is his claim for damages which is before the Panel.
Part 4 of the MAI Act provides limits to the entitlement to damages. For example, no damages are recoverable at all if the claimant’s only injuries resulting from the accident are ‘minor’ injuries[3]. Section 4.11 of the MAI Act limits the entitlement to damages for non-economic loss as follows:
[3] Section 4.4 of the Act.
“No damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by a motor accident is greater than 10%.”
Pursuant to Schedule 2, clause 2 of the MAI Act, various matters are declared to be medical assessment matters, including (a) “the degree of the impairment of the injured person that has resulted from the injury caused by the motor accident (including whether the degree of permanent impairment is greater than a particular percentage)”.

The review

The insurer’s application for review is made under section 7.26 of the MAI Act. Pursuant to section 7.26(5A) the Panel is to be constituted of a Member of the Commission and two Medical Assessors. Section 7.26(6) provides that the review is a fresh assessment of all matters before the original assessor and is not limited to a reconsideration of only the matters alleged in the application to be incorrect.
Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before the Panel[4].
[4] Section 41(2)(b).
The Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act and rule 128 provides that a Review Panel can determine how it conducts and determines the proceedings before it.

Permanent impairment

Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the MA Guidelines)[5].
[5] The current version of the Guidelines applicable to the Panel’s assessment is Version 8.2, effective from 8 April 2022.
The MA Guidelines are issued under Division 10.2 of the MAI Act and adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA4 Guides). Where there is any difference between the AMA4 Guides and the MA Guidelines, the MA Guidelines are said to prevail.[6]
[6] Clause 6.2 of the Guidelines
Extracts from the MA Guidelines relevant to the claimant’s assessment are provided below.

Consistency

The MA Guidelines provide general guidance to the Panel when there is inconsistency within the examination or when considering the records including other examinations as follows:
17. “6.40 The medical assessor must use the entire gamut of clinical skill and judgement in assessing whether or not the results of measurements or tests are plausible and relate to the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears not to verify that an impairment of a certain magnitude exists, the medical assessor should modify the impairment estimate accordingly, describe the modification and outline the reasons in the impairment evaluation report.
18. 6.41 Where there are inconsistencies between the medical assessor's clinical findings and information obtained through medical records and/or observations of nonclinical activities, the inconsistencies must be brought to the injured person's attention; for example, inconsistency demonstrated between range of shoulder motion when undressing and range of active shoulder movement during the physical examination. The injured person must have an opportunity to confirm the history and/or respond to the inconsistent observations to ensure accuracy and procedural fairness.”
Clause 6.50(d) provides specific mention of consistency in respect of the assessment of the upper limbs including shoulders and says if there is inconsistency, the range of motion method should not be used. Clause 6.50(e) then provides that the medical assessors should then “use discretion in considering what weight to give other available evidence to determine if any impairment is present”.
Clause 6.84 provides a similar approach to inconsistency in respect of the assessment of the lower limbs including knees.

Assessment of the spine

When undertaking an assessment of the spine, each of the three segments of the spine (cervical, thoracic and lumbar) must be considered separately and only Diagnostic Related Estimates (DRE) can be used to determine the degree of impairment resulting from the injury to each of the three segments.
Table 6.7 in the Guidelines includes the following summary of three of these DREs relevant to this claim and the Panel’s assessment:
(a)   low back pain, neck pain or symptoms – DRE I;
(b)   low back pain or neck pain with guarding or non-verifiable radicular complaints or non-uniform range of motion (dysmetria) – DRE II, and
(c)   low back or neck pain with radiculopathy – DRE III.
The Guidelines contain in Table 6.8 a definition of non-verifiable radicular complaints which is relevant to the DRE II categorisation as follows:
24.“Non-verifiable radicular complaints are symptoms (for example, shooting pain, burning sensation, tingling) that follow the distribution of a specific nerve root, but there are no objective clinical findings (signs) of dysfunction of the nerve root (for example, loss or diminished sensation, loss or diminished power, loss or diminished reflexes).”
There is also a definition of radiculopathy which is relevant to the categorisation of an injury as DRE III as follows[7]:
26.“Radiculopathy is the impairment caused by dysfunction of a spinal nerve root or nerve roots. To conclude that a radiculopathy is present two or more of the following signs should be found:
27.6.138(a) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
28.6.138(b)positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
29.6.138(c) muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
30.6.138(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
31.6.138(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”

Assessment of the lower limb

[7] Clause 6.138 of the MA Guidelines.

There are 13 methods of assessing impairment of the lower limbs provided for in Chapter 3 of the AMA4 Guides. The method used by Assessor Gorman which has not been challenged by the parties was 3.2e “Range of Motion” and in particular Table 41 which is used for knee impairments. A loss of motion in a single direction or axis (e.g. flexion) is rated mild, moderate or severe and attracts a whole person impairment (WPI) of 4%, 8% or 14% respectively.

Assessment of the upper limb

Chapter 3 of the AMA4 Guides provides for the assessment of the upper limbs from the fingers to the shoulders with reference to amputation, sensory loss, abnormal motion and ankylosis.
Assessor Gorman used the range of motion method which has not been challenged by the parties. This method (commencing at 3.1j at page 41 of AMA4 Guides) provides for six planes of motion – flexion, extension, abduction, adduction, internal rotation and external rotation, the measurement of each, the conversion to an upper extremity impairment and further converted to a WPI percentage.

MEDICAL ASSESSMENT UNDER REVIEW

Assessor Gorman observed that the claimant walked with a limp and was well muscled. He examined all areas of the body allegedly injured and recorded his measurements. The Assessor noted “pain behaviours” and said that the claimant had to be encouraged “to fully perform the range of motion[s]” that have been recorded.
The Assessor found causation of all the listed injuries on the basis of the immediate complaints of symptoms. He did consider that the shoulder symptoms were not caused by a frank injury to the shoulders but were referred from an injury to the cervical spine. In terms of the claimant’s knees, he found the left knee was injured and that the right knee developed symptoms as a result of the claimant’s limp and Mr Younas favouring his left side.
The various diagnoses reached by Assessor Gorman were as follows:
(a)   left and right shoulder – soft tissue injury, no tears but evidence of subacromial bursitis, ongoing pain and restriction of movement;
(b)   cervical spine – soft tissue injury with no evidence of radiculopathy or disc protrusions therefore a soft tissue whiplash associated disorder causing pain and markedly restricted movement. Assessor Gorman found non-verifiable radicular symptoms in the right upper limb (relevant to DRE II) but no signs of radiculopathy (necessary for DRE III);
(c)   left knee – a soft tissue probably meniscal and cartilage injury occurred at the time of the accident. The Assessor noted there was no history of intervening injury or incident and there were ongoing symptoms and a mild limp. There was mild restriction in flexion but no crepitus, and
(d)   right knee – a soft tissue injury upon probably degenerative changes manifesting later. The impairment in this knee was associated with and related to the abnormal gait resulting from the left knee injury.
Assessor Gorman determined the claimant had a WPI of 12% in respect of the following injuries:
(a)   left shoulder (2%) assessed in accordance with Figures 38, 41 and 44 on pages 43, 44 and 44 and Table 3 on page 20 of the AMA4 Guides;
(b)   left knee (4%) assessed in accordance with Table 41 on page 78 of AMA of the AMA4 Guides;
(c)   cervical spine (5%) assessed in accordance with Table 73 on page 110 of the AMA4 Guides;
(d)   right knee (0%) assessed in accordance with Table 41 on page 78 of the AMA4 Guides, and
(e)   right shoulder (1%) assessed in accordance with Figures 38, 41 and 44 on pages 43, 44 and 44 and Table 3 on page 20 of the AMA4 Guides.

REVIEW OF THE EVIDENCE

Claimant’s evidence

The claimant provided a statement which was seen by Dr Gehr and has been provided to the panel[8].
[8] Document AD14 in the Commission’s electronic file.
The claimant will turn 44 later this year. He says he had no previous injuries or disabilities other than diabetes which was diagnosed in 2012.
The claimant says at [9] he was driving along a street in Bardwell Park when a vehicle emerged from a side street colliding with the passenger side of his vehicle. Mr Younas said he did not require an ambulance but attended hospital latter that day and saw his general practitioner (GP) the next day.
While he says he initially thought he had only injured his left knee and neck he says at [10] “shortly after the accident, I began to suffer with pain in my right knee” which he attributed to overuse due the problems with his left knee. He says he now has pain in both knees with sharp pains and stiffness. In addition to his knees, he says he sustained injury to both his shoulders.
At [15] Mr Younas says that, as an Uber driver, he would often help customers with their luggage and he washed, vacuumed and dusted his car.
He says at [19] he has to take regular rest breaks while driving his Uber and stretch his neck and legs. He says he suffers pain between his shoulder blades when driving for long periods and he gets pain in his right knee using the accelerator and brake pedals.
Mr Younas says at [21] he has lost strength because of his left knee injury and feels weak in both knees.

Chronology and document review[9]

[9] Unless otherwise stated, the documents referred to in this section of the Panel’s report are contained in the Claimant’s bundle of documents lodged following the Panel’s directions.

26 September 2018 – discharge summary from Canterbury Hospital[10]. This document records the following:
(a)   presenting complaint – “Left knee pain post MVA”;
(b)   the claimant was bought in by taxi having been a restrained driver of a car travelling at 50 km/h and sustaining a collision head on with another car (this description is incorrect. The accident was not a head-on impact from the at fault vehicle but an impact into the passenger side of Mr Younas’ car);
(c)   “immediate left knee pain” and he attended limping and with support;
(d)   no head injury was noted, and the claimant had a normal range of motion in the neck;
(e)   no chest wall tenderness was recorded along with “no seatbelt injury”;
(f)    he had a “small superficial abrasion to left patella, inferior aspect [with] mild associated swelling but no ligamentous instability”;
(g)   the impression recorded was a left knee injury and mild whiplash, and
(h)   he was x-rayed (normal chest and left knee) and allowed home.
[10] Document AD13 in the Commission’s electronic file.
10 October 2018 – MRI cervical spine. The history given was “clinical radiculopathy. Post motor vehicle accident” and a conclusion of “small disco-vertebral complex at C5/6 is not associated with neural compression or exiting nerve deviation”.
10 October 2018 – MRI left knee. The clinical history given is “? acute anterior cruciate ligament tear” and the conclusion recorded “oblique tear posterior horn body of medical meniscus extending to the articular surface zone 2. No osteochondral lesion is seen. No cruciate tear evidence”.
15 October 2018 – the date of the claimant’s application for personal injury benefits form. This document describes his injuries as follows:
“Left knee injury and swelling with pain and also feeling pain at back side of my neck.”
31 October 2018 – bilateral shoulder ultrasound. The clinical history given to the radiologist was of “shoulder pain and tenderness over the sternocleidomastoid muscle pain in both side(s)”. The diagnosis was “mild subacromial / subdeltoid bursitis bilaterally”.
29 November 2018 – bilateral shoulder injection. The sonographic assessment confirms “bilateral subacromial bursitis without significant cuff tendinopathy”. Pain was reported to have reduced from six to three out of ten on the right side and from seven to three out of ten on the left side.
14 January 2019 – Allied Health recovery request from Andrew Fayad (Fit by Physio). This document diagnoses “medial meniscus tear left knee” and “whiplash associated disorder: cervical spine pain following whiplash mechanism injury”. Current signs and symptoms include:
(a)   pain in left knee (constant ache which can change to sharp pain), reduced range of motion (90 degrees flexion vs 140 on the right);
(b)   neck pain at C5 level restricted more on the left than the right, and
(c)   left shoulder reduced range of motion (135 flexion compared to the right at 170) with pain associated in his neck.
4 March 2019 – MRI right knee. The recorded clinical history is “post MVA right knee pain and stiffness”. Conclusion was said to be “incomplete radial tear posterior tibial root attachment of medical meniscus with breach of femoral articular surface”.
29 June 2019 – MRI cervical spine. The history given was of “pain with right arm radiculopathy” and the conclusion was “normal study” with no evidence of disc protrusion or neurocentral compression and that at all levels “exit nerves pass freely”.
18 December 2019 – MRI left knee. The clinical history recorded was “progress medial meniscal tear from MVA 26/09/2018”. No meniscal tear, full-thickness cartilage defect which demonstrates “acute features” not previously demonstrated in October 2018.
26 February 2020 – Allied Health Recovery request from Benjamin Chow. Again, the diagnosis of “medial meniscus tear left knee” and “whiplash associated disorder: cervical spine” is recorded. Various signs and symptoms are recorded suggesting there was no exacerbation of symptoms with squats and that left shoulder flexion was to 110 degree and right shoulder flexion to 150 degrees. The physiotherapist records:
“Mr Younas is fearful of exacerbating his neck, shoulder and knee symptoms. Caution was taken to prevent the exacerbation of his symptoms, however it was not conducive to a speedy recovery. Mr Younas is aware that strengthening may temporarily increase his symptoms, but it will improve his function overall.”

There is a bundle of medical certificates of capacity signed by Dr Elsadig Mohammed and David Annetts, the first dated 20 August 2019 and the most recent appears to be August 2020[11]. These refer to left knee and neck pain in the diagnosis of injury section of the form. However, in the “factors affecting recovery” question this notation appears in all of the certificates “Neck pain and left shoulder. Left knee pain”. There are seven further certificates with identical annotations. Right shoulder is not mentioned.
[11] The claimant’s application for internal review refers to the certificates of capacity “date various” however the insurer’s internal review decision lists them all of which there are several not before the Panel.
In response to a query from the Panel, further certificates of capacity were provided[12] from 14 June 2020 to January 2022. The certificate completed by Dr Mohammed on 6 September 2020 has a new diagnosis “MVA while working neck, shoulder and knee pain” saying the claimant was working as an Uber driver when he had the accident and that the factors affecting his recovery were “pain”. There is one further similar certificate.
[12] These are included in document AD 15 in the Commission’s electronic file.
The certificate completed by Dr Annetts on 5 October 2020 has the diagnosis of “MVA while working – neck pain, pain both shoulders and both knees” with factors affecting recovery noted as “pain”. There are a further 10 similar certificates.
After enquiry from the Panel, Dr Leonard Kuo’s reports have been provided[13]. Dr Kuo appears to have the relevant imaging and has only seen the claimant for knee problems (and not neck or shoulder problems) and has not been seen since January 2020. He was given a history of the accident occurring while the claimant was not at work.
[13] Identified as document AD16 lodged with the Commission on 14 April 2022. The imaging studies Dr Kuo has are identified as document AD17.
Dr Kuo has written three letters to Dr Mohammed as follows:
(a)   20 December 2018 - after the accident Mr Younas developed pain in the left knee, neck and shoulder (the Panel notes the use of the singular ‘shoulder’ but no reference to which shoulder). Although he rested, symptoms did not settle, and the claimant complained of pain in the “patella-femoral region” with swelling and discomfort. The claimant had difficulty with walking and standing for long periods and could not fully squat. On examination the alignment was normal, there was no effusion and “he walked without a limp”. His left knee could extend fully but flex only to 140 degrees “without crepitus”. Dr Kuo was of the view the claimant had sustained a soft tissue contusion injury which should be treated conservatively. He did not think the “possible oblique tear through the posterior horn of the medial meniscus” was significant as the claimant was not symptomatic in that area;
(b)   3 April 2019 – the claimant was seen for pain in the right knee which was said to be a “new problem and first developed about one month ago”.
Mr Younas could fully extend his knee but flexion was limited due to pain. He considered the MRI which could have represented a partial thickness tear and suggested the claimant continue exercises but return in 6 – 8 weeks if he did not improve, and
(c)   21 January 2020 – Dr Kuo noted that the right knee pain had, with conservate treatment settled. The claimant’s main pain was in the left knee which prevented him from praying and squatting. On examination the claimant had no effusion and a full range of motion in the knee. There was “mild patella-femoral clicking”. He considered the new MRI which showed “faint new changes” and suggested Mr Younas symptoms were “more in keeping with mild patellofemoral chondropathy” (which is an inflammatory condition due to degeneration of the knee joint and which the medical members of the Panel note is not trauma related).

Dr Eugene Gehr’s report 6 August 2020

Dr Gehr examined the claimant at the request of Mr Younas’ solicitors[14]. Because of Covid, Dr Gehr and the claimant were separated by a perspex screen.
[14] The examination and report are dated 6 August 2020.
The claimant did not disclose any previous injuries or issues other than diabetes.
Mr Younas gave a history of the accident and its immediate aftermath. He said he had immediate pain in the neck and left knee then “a few months later he had pain over the right knee”.
He also reported pain “over both shoulders, left worse than right” and that Mr Younas saw his doctor the day after the accident. This history taken by Dr Gehr suggests the onset of shoulder pain occurred on the day of the accident. Dr Gehr records stiffness in both shoulders and says that the left shoulder was said to have remained the same but that there had been some slight improvement in the right shoulder
Mr Younas’ current complaints were of neck pain with varying intensity, pain over the left knee but stiffness on the right, pain over both shoulders left worse than right. In terms of pain levels, he said his neck pain was 4 - 5 out of 10, left knee 7 - 8 out of 10 and lower level of pain in the right knee. His left shoulder pain was rated as 7 out of 10 and his right, 5.
The claimant reported stiffness in both knees and Dr Gehr says that the left knee “remains significantly symptomatic especially with squatting” but that the right has seen some improvement.
Mr Younas was physically examined with a goniometer used three times and an inclinometer as well as a tape measure Dr Gehr reported no pain behaviours, no non-physiological behaviours and no exaggerations. The medical members of the Panel did not consider an inclinometer could be accurately used as the reference point for range of motion measurements is the horizontal and the medical members were of the view that it would have been difficult to obtain accurate measurements from behind a perspex screen.
Dr Gehr reported an “unsteady gait” and inability to squat.
In the neck Dr Gehr says there was evidence of spasm and dysmetria but no motor or sensory changes and equal forearm and biceps circumference suggesting no muscle wasting. Deep tendon reflexes were absent on both sides.
There was wasting of the vastus medialis oblique (VMO) in the right knee with 0–90 degrees range of motion and in the left a decreased range of motion 10–90 degrees with muscle wasting of the VMO. Calf and thigh circumferences were equal.
The claimant complained of pain in both shoulders, left worse than right. On examination there was decreased range of motion in the left, rotator cuff muscle wasting in the left and positive impingement signs in both shoulders.
Assessor Gehr diagnosed soft tissue injuries to the claimant’s neck, both shoulders and both knees but provided no reasons for his findings on causation. He rated the claimant’s impairments as 34% in total made up of:
(a)   left shoulder               11%  (Assessor Gorman 2%)
(b)   left knee   12%  (Assessor Gorman 4%)
(c)   cervical spine DRE II 5%  (Assessor Gorman 5%)
(d)   right knee                   4%  (Assessor Gorman 0%)
(e)   right shoulder            7%  (Assessor Gorman 1%)

Assessor Nel Wijetunga determination 7 September 2020

Assessor Wijetunga was referred a dispute about an Assessed Allied Health Recovery request for physiotherapy dated 26 February 2020. She found that the treatment was related and was reasonable and necessary[15].
[15] Her certificate and reasons are found at pages 22-31 and duplicated at 64-73 of the insurer’s bundle.
She was given a consistent history of the accident, a report of a small bruise on the knee and the “immediate onset of left knee and neck [pain] rated at 5-6 out of 10”.
Mr Younas told her:
(a)   he consulted his doctor with “generalised body pain”;
(b)   within a week of the accident, he said he had pain in his shoulders, neck, upper back and initially in the left arm then after a few months, the right arm;
(c)   he had left knee pain initially and then right knee pain two months after the accident;
(d)   he went to one doctor and was given medication and went to another doctor in December 2019 who referred him to a specialist, Dr Kuo, who recommended physiotherapy which he had for a few months. Mr Younas said it was not of great assistance and provided temporary relief only, and
(e)   Dr Kuo then recommended right knee physiotherapy which Mr Younas had, and which apparently improved his symptoms.
The claimant complained to the Assessor of constant bilateral neck pain which fluctuated from 5 to 7 out of 10 with pain in the shoulders in the vicinity of the trapezius. He also complained of constant pain at 6 out of 10 with some sharp left shoulder pain and constant upper back pain which fluctuates.
He was using Panadol osteo twice a week and Voltaren gel.
On examination of the neck, there was no muscle spasm or guarding but the claimant was tender along the paraspinal muscles with half the normal range of movement.
The thoracic spine examination was normal.
There was no obvious wasting of the upper arms and shoulders but there were positive impingement signs on the left although none on the right. Measurements were taken with a goniometer suggesting restrictions in flexion, extension, abduction and adduction.
Assessor Wijetunga noted the claimant walked normally, was tender in both knees (worse on the left) and there was some restriction of left knee flexion.
Assessor Wijetunga noted that, according to the claimant, the first complaints of shoulder pain occurred within a few days of the accident but that they were not mentioned in the “accident notification form” dated 15 October 2018[16]. She asked the claimant about this, but he could not explain why he did not include his shoulders in the claim form.
[16] This would appear to be a reference to the application for personal injury benefits – the statutory benefits claim form found at page 17 of the claimant’s bundle.
She says that the claimant was the driver, but no airbags deployed therefore there was no direct impact to the left shoulder (from the seat belt or airbags). She noted the one-month gap between the date of the accident and the referral for investigations to both shoulders. She expressed the view if the claimant had adhesive capsulitis you would expect to see symptoms in the first few weeks. Given the late complaint and the lack of impact she surmised the claimant’s frozen shoulder was not caused by the accident.
Assessor Wijetunga diagnosed a whiplash injury to the neck with possible radiation or referral of pain into the shoulders. She was of the view physiotherapy with an exercise program was reasonable and related for the claimant’s chronic whiplash.

Dr Rosenthal 5 November 2021[17]

[17] This report was not before Assessor Gorman but has been considered by the Panel after no objection was received from the claimant. The report is found at pages 74-86 of the Insurer’s bundle.

Doctor Rosenthal took a history of the accident noting the claimant was driving at 50 kmph, he records that no airbags were deployed, no ambulance was called but the vehicle was towed. Mr Younas was reported to have taken a taxi to the hospital complaining of neck and left knee pain.
The claimant told Dr Rosenthal that pain began immediately and started radiating to his shoulders. The next day he saw his GP and was given Nurofen. He was then referred for physiotherapy which commenced three months after the accident. This is said to have provided short term relief and he experiences flare ups when he stops. He has been prescribed “various medications” and has seen “various specialists”. He has had injections to his shoulders and trapezius.
Mr Younas reported pain related to movement and pain down his arms and fingers and that his left index finger feels numb occasionally. It is on both sides but mainly on the left. He said he had persisting neck pain (4 out of 10) and pain in the upper trapezius mainly on left side. He had left knee pain when walking and his right knee was painful and he does not know what caused this.
The claimant says he was taking Mobic, Prednisone, Diabex and Coversyl and having weekly physiotherapy.
On examination, Dr Rosenthal noted:
(a)   the claimant had a normal gait and posture;
(b)   the claimant walked into the examination and sat “comfortably” for 30 minutes in “no obvious distress”;
(c)   the neck was tender but there was no muscle spasm or guarding. There was no asymmetry of neck movement and no neurological deficits in the upper limb. There were no sensory changes and no numbness found over the left index finger;
(d)   there was inconsistency and lack of effort (for example restriction of movement by three-quarters in all directions with grimacing and grabbing of the left upper arm) and significant pain behaviours with “purposeful restriction in movement”;
(e)   there was no tenderness in the shoulder joints and no instability or crepitus. Power testing was normal and there was no obvious wasting at the shoulder joints. He was unable to use the goniometer for measuring shoulder movements, and
(f)    the claimant refused to do a squat but there was a full range of knee movement although crepitus in both knees.
Doctor Rosenthal accepted there had been a soft tissue injury to the claimant’s neck and left knee. He thinks the neck injury has caused symptoms in the upper trapezial area but says there is no diagnosable relationship between complaints in the shoulders and the pathology and no evidence of an initial right knee injury.
He assessed WPI at 0%.

SUBMISSIONS

Insurer’s submissions on review[18]

[18] These submissions are dated 3 June 2021 and are found at page 10 of the insurer’s bundle.

The insurer challenges Assessor Gorman’s finding of “non-verifiable radicular symptoms in the right upper limb” noting the definition in the Guidelines of non-verifiable radicular complaints as “symptoms in the distribution of a nerve root but no objective physical findings of nerve root dysfunction”. The insurer argues the Assessor has not given adequate detail of the specific nerve root distribution for Mr Younas’ symptoms and that there are therefore insufficient reasons for why the Assessor placed the claimant in DRE II for the cervical spine injury [16-20].
The insurer argues that Assessor Gorman had observed “pain behaviours” and found no signs of radiculopathy although “minor loss of motion” which was uniform. The insurer says the most applicable category is DRE I which attracts a 0% assessment [21-28].
While the insurer’s submissions point to an error in the assessment of the cervical spine only, the submissions also suggest the Panel consider causation of the left knee injury and says the correct test of causation requires analysis of whether the accident could cause and did cause the pathology as required by cl 6.5 and 6.7 of the Guidelines [29-34].
The insurer indicated it was attempting to obtain copies of the claimant’s treating GP’s records.

Claimant’s submissions on review

The claimant’s submissions[19] note that Assessor Gorman has found various injuries to the parts of the claimant’s body injured as a result of the accident and has set out his findings and explained his reasoning for each.
[19] The submissions are dated 16 June 2021 and are found at page 1 of the claimant’s bundle.
The claimant in particular suggests Assessor Gorman has explained the DRE II finding in respect of the claimant’s lumbar spine and has exposed his path of reasoning in respect of the claimant’s left knee and left shoulder.

The Panel’s directions

On 29 November 2021, the Panel issued a document which identified a number of additional documents the panel required. These were mainly documents referred to in medico-legal and other reports which had not been included in the bundle of documents put before the Panel. In addition there were GP notes requested and specialist notes and the hospital notes from the claimant’s admission soon after the accident.
The Panel indicated it would undertake a review of all the claimant’s alleged injuries including causation and advised the parties if they had alternative views as to how the Panel should proceed, they should provide submissions otherwise the Panel would assume there was no objection.
The claimant was directed to provide documents and any further submissions by 17 December 2021 and the insurer by 21 January 2022.
On 9 March 2022, the claimant’s solicitors uploaded to the Commission’s file a number of documents requested by the Panel including further certificates of capacity, the claimant’s statement and the hospital discharge summary (although not the hospital notes). The claimant provided no additional submissions.
On 17 March 2022, NRMA uploaded to the portal[20] a series of certificates of capacity but no further submissions. The solicitor for NRMA also uploaded a series of emails and reminders requesting signed authorities from the claimant to enable the insurer to obtain the GP notes and the records of Dr Kuo. It appears those authorities were provided in early February 2022 and letters dated 15 February 2022 were sent to the GP practice and to Dr Kuo seeking the notes. The insurer requested the Panel halt its consideration of the matter until after the documents were provided.
[20] Document AD15 in the Commission’s electronic file.
On 14 April 2022, NRMA uploaded to the portal documents from Dr Kuo.
The Panel has not received any documentation from the claimant’s treating GP. The Panel directed the insurer to obtain the records but there appears to have been a delay in the insurer obtaining authorities from the claimant which would enable them to do so. The claimant has not provided the records. On 21 April 2022 the Panel received a message from the claimant’s solicitor through the portal advising:
“Our client's treating providers have instructed that a request for clinical records has not been received to date.”
The claimant’s solicitor has not advised which providers they are referring to, but the Panel has assumed this is a reference to the claimant’s treating GPs as these appear to be the only documents the Panel requested but which have not been provided.
The Panel notes the President of the Commission convened the Panel on or about 5 November 2021 and the Panel first met on 24 November 2021. Mr Younas was re-examined by Medical Assessors Maloney and McGrath on 15 February 2022.
The guiding principle enshrined in section 42 of the PIC Act is for the “just, quick and cost effective” resolution of disputes such as this medical assessment matter. One of the objects of the MAI Act[21] is “to encourage the early resolution of motor accident claims and the quick, cost effective and just resolution of disputes”.
[21] Section 1.3(2)(g).
The insurer advised in its submissions in support of the review application that treatment records had been requested. It has been close to six months since the Panel was convened and over two months since the Panel e-examined Mr Younas. The Panel is of the view that it has sufficient information before it to complete its assessment and the Panel is not of the view it should continue to wait for the production of the records from the claimant’s GP.
The Panel has therefore decided to determine the matter now on the information before it. In the light of the Panel’s findings, the Panel is of the view that if the GP notes reveal anything that might alter the outcome of this dispute, the claimant can always avail himself of the further assessment provisions of section 7.24 of the MAI Act.

RE-EXAMINATION REPORT

General

Mr Younas confirmed that he was born in Pakistan and migrated to Australia in 2010. He had been working as a network engineer in Pakistan and on arriving in Australia initially worked at petrol stations and later as a taxi driver. Before coming to Australia, he was a keen cricketer (bowler).
The claimant states he had had no previous injuries to those assessed today. He also confirmed there were no intervening incidents or accidents. He received a diagnosis of diabetes type 2 from 2012 which is treated with oral medications. In 2009 he had surgery for renal stone and later in Australia lithotripsy.

The claimant attended the re-examination on 15 February 2022. The medical members of the Panel note he walked with a slight limp. He was observed to be well muscled. This suggests that the claimant had a physical lifestyle before the accident and he has remained active since the accident.

History of the motor accident and subsequent treatment

Mr Younas was driving his car when another vehicle failed to give way coming out of a side street and hit him on the passenger side. The ambulance and police did not attend the scene of the accident and he states that the other driver helped him out of his car which was not driveable and he took a taxi to Canterbury Hospital. At that stage he states that he had pain in the neck and the left knee.
Mr Younas said he consulted his GP the next day and was referred for physiotherapy. He also consulted a psychologist due to anxiety when driving. He states that he returned to work one year after the accident. Due to shoulder pain, cortisone injections were given.
He was referred to Dr Kuo, an orthopaedic surgeon for assessment of his left knee.
Dr Kuo suggested further physiotherapy treatment. Mr Younas states that his right knee became painful a few months after the accident. He eventually changed GPs to Dr Mohammed.
At present Mr Younas drives an Uber for about 12 hours per week.

Current symptoms

Mr Younas says he has persistent pain in the left knee over the patella and posteriorly to the joint. He states that the right knee aches in the medial side. The medical members of the Panel observed a mild limp.
The claimant says he has pain in both shoulders over the entire shoulder including the right scapula and the medial side of the left scapula. On the left side, there is no pain radiating into the left trapezius muscle but Mr Younas complains of intermittent numbness in the left thumb and index finger.
Mr Younas also complained of occasional discomfort in the mid thoracic region which is associated with numbness in the upper thoracic spine. He said he gets an occasional ache in the lower back.

Current treatment

Mr Younas is currently taking Mobic 7.5 mg (one per day) and he uses Voltaren gel. He undertakes home exercises and takes Diabex and Coversyl medications for his diabetes and heart.
Mr Younas states that he was having regular physiotherapy which the insurance company ceased in June 2021. He estimates he would have had 50 – 100 physiotherapy treatments.

CAUSATION OF INJURIES

Neck and left knee

The Panel is satisfied, on the basis of the claimant’s evidence, the contemporaneous medical records, the certificates of capacity and the consistent histories that the claimant sustained an injury to his neck (and upper back) and left knee in the accident.
The neck / upper back injury is a soft tissue whiplash type injury.
The left knee injury involved a knock to the front of the knee as the claimant came into contact with a part of the car likely to be the dashboard or lower part of the steering wheel or column. The medical members of the Panel are of the view that in their clinical judgment the knock to the front of the knee could not have created the meniscus tear identified in the October 2018 MRI. The Panel is of the view that this pathology was pre-existing and age-related noting the claimant’s pre-accident recreation and employment history. These imaging findings are, in the experience of the medical members of the Panel often asymptomatic and caused by old work or sporting injuries or general wear and tear. The more recent MRI of December 2019 failed to identify the meniscus tear and identified a new pathology, articular cartilage damage. If the meniscus pathology (seen in the October 2018 imaging) was a cause of the cartilage damage and loss seen in the December 2019 MRI, it is unlikely, in the Medical Assessors’ view that the MRI would show improvement of the outline of the meniscus and that the absence of the meniscus tear in 2019 which raises doubts as to the quality of the MRI reporting.
The Panel notes the recently produced records of Dr Kuo suggests the claimant had, by January 2020 improved his left knee function with a full range of motion in the left knee.
The Panel is therefore of the view that the injury to the claimant’s left knee caused by the accident was a soft tissue injury aggravating pre-existing pathology from which the claimant (according to the notes of his treating surgeon Dr Kuo), recovered. Any ongoing symptoms in the left knee are not, in the view of the Panel related to any injury caused by the accident.

Shoulders

The Panel notes the immediate records (the hospital discharge summary and the claim form) do not mention Mr Younas’ left or right shoulder.
The Panel has a consistent set of certificates of capacity completed by the claimant’s long time GPs which at first only mention injuries to the neck and left knee but that left shoulder pain was likely to impede recovery. This is strongly suggestive of shoulder pain having been referred from the neck injury. The early certificates of capacity do not suggest there was a frank or direct left shoulder injury sustained in the accident. Two certificates from September 2020, two years after the accident mention a shoulder injury and in October 2020 and thereafter the certificates refer to injuries to both shoulders.
The first Allied Health recovery request from January 2019 refers to left shoulder reduced range of flexion motion (135 degrees) apparently associated with the neck but almost full range of motion in the right shoulder (170 degrees). The second Allied Health recovery request from February 2020 refers to shoulder symptoms, a fear of aggravating them and further restriction of flexion to 110 degrees in the left and 150 degrees in the right. This suggests to the medical members of the Panel that the decreasing range of flexion was not related to a physical injury or condition but is related to fear avoidance. Therefore, the Panel considered these measurements do not reflect a deterioration of any shoulder complaint.
As the driver with a seatbelt going over his right shoulder, it is more likely for this shoulder to have sustained an actual injury in the accident. There is no mention of any right shoulder problem in the hospital discharge summary although there was a particular note in that summary that there was no evidence of a seatbelt injury.
The Panel considers it noteworthy that the claimant’s claim form, signed and dated 15 October 2018 does not mention either shoulder.
The Panel notes both shoulders were the subject of imaging dated 31 October 2018 with a history of a complaint of tenderness in the muscles of the neck and pain in the shoulders. Doctors Gehr and Rosenthal have a history of immediate pain in the shoulder however the claimant told Assessor Wijetunga shoulder pain came on a week after the accident. The claimant could not explain why his claim form then did not include injuries to his shoulders.
The Panel also notes that the claimant has seen an orthopaedic surgeon three times about his knee problems but there is no evidence before the Panel of the claimant having been referred to any shoulder specialist or surgeon for his shoulder problems. The claimant mentions shoulder pain in passing in his statement.
The medical members of the panel noted that Dr Gehr allegedly found positive impingement signs in both shoulders. This is a sign associated with subacromial bursitis. However true impingement has, in the clinical judgment of the medical members of the Panel a hard end feel, with strong pain from compressed structures in the shoulder joint. Discomfort about the shoulder girdle restricting effort on range of motion testing and muscle tension about the shoulder demonstrated by Mr Younas to the Panel, are not true signs of impingement.
The Panel also notes that Dr Gehr, from behind a perspex screen found wasting of the left rotator cuff musculature. Assessors Gorman and Wijetunga along with
Dr Rosenthal did not find any left upper limb muscle wasting. The medical members of the Panel did not find any evidence of upper limb muscle wasting on their examination of Mr Younas’ shoulders.
The Panel is not satisfied that the claimant sustained any tissue injury[22] to his left and right shoulders in this accident.
[22] The Panel notes that in a compensation setting the term “frank” or “specific” injury can be used. The Panel has used the phrase “tissue damage” as, in its view this is more precise, distinguishing local damage from a functional disturbance with symptoms spread from some other structure.
The claimant has been inconsistent in his reports of the onset of shoulder pain. The Panel notes the 31 October 2018 clinical history given to the radiologist was of shoulder pain and tenderness over the sternocleidomastoid muscle (the muscle on of either side of the neck) with pain on both sides. The first Allied Health request noted left shoulder reduced range of motion with pain in the neck. The certificates of capacity before September 2020 note only neck and left knee as being injured but that shoulder pain would probably impede recovery. The Panel is therefore satisfied that the claimant’s shoulder symptoms arise from his neck injury and that this pain, and the perception of pain has restricted the range of motion in his shoulder.

Right knee

Mr Younas’ right knee was the subject of radiology in March 2019. The claimant’s statement suggest he had right knee pain “shortly after the accident” although he told Dr Gehr and Assessor Wijetunga this started a couple of months after the accident.
Dr Kuo reported in April 2019 the right knee symptoms started a month before that. The Panel notes that in January 2019 when physiotherapy was requested, the claimant had full range of motion in the right knee with no complaints of pain or symptoms in that knee. This does suggest that the right knee symptoms did not arise until almost six months after the accident.
The claimant’s statement gives no history of a direct injury to his right knee. Mr Younas says in his statement that his right knee pain arose because he was favouring his left knee although he told Dr Rosenthal he did not know what caused his right knee symptoms. The claimant told Dr Kuo (his treating doctor) that he thought he was favouring his right leg because of the problems with his left leg.
The Panel notes when Mr Younas saw Dr Kuo in December 2018 he had no limp and both Assessor Wijetunga and Dr Rosenthal recorded that the claimant walked normally without a limp and was therefore not at those times favouring any leg over the other leg. Assessor Gorman in May 2021 observed the claimant walking with a limp and the Panel observed a mild limp when the Medical Assessors examined Mr Younas in February 2022.
The right knee imaging suggests a finding that could not, in the Medical Assessors’ clinical experience be caused by a favouring of one leg over another. In their clinical judgment, the medical members of the Panel are of the view that the imaging finding is more likely due to his age and pre-accident sporting and employment history and that any symptoms in the right knee are unrelated to the motor accident.
The Panel is not therefore satisfied that the claimant sustained any direct injury to the right knee or that any symptoms in relation to the right knee result from the accident-related injury to Mr Younas’ left knee.

EXAMINATION FINDING AND ASSESSMENT OF WPI

Cervical spine

Mr Younas has complaints of pain and other symptoms in his neck. He satisfies DRE I on that basis and has a 0% WPI for his neck injury.
Mr Younas does not satisfy DRE II because that classification requires (as per Table 6.7 in the MA Guidelines):
(a)   neck pain, and
(b)   guarding, or
(c)   non-verifiable radicular complaints, or
(d)   non-uniform range of motion (dysmetria).
Guarding - on palpation during the re-examination by the medical members of the Panel, there was no guarding or spasm observed.
Non-verifiable radicular complaints are symptoms that follow the distribution of a specific nerve root but in circumstances where there are no objective clinical findings (signs) of dysfunction of the nerve root (for example the loss or diminution of sensation, power, or reflexes). The Panel makes the following comments:
(a)   Loss or diminution of sensation – Mr Younas had a peripheral loss of sensation over the left thumb and index finger to light touch. Mr Younas states this was worse at night and wakes him. This is consistent with a possible carpal tunnel syndrome and is not a non-verifiable radicular complaint. It is also consistent with a possible peripheral nerve issue. It does not conform to a dermatomal pattern such as C6 or C7 which would be evidenced by loss of sensation along the whole of arm and not just the thumb and index finger;
(b)   Loss or diminution of power - on neurological examination of the upper limbs, the medical members of the Panel noted power was equal bilaterally with normal reflexes and normal sensation with no muscle wasting apparent. The circumferences of the upper arms were 30 cm bilaterally (10 cm above the olecranon process) and in the upper forearms 25 cm bilaterally (10 cm below the olecranon process), and
(c)   Loss or diminution of reflexes – the medical members of the Panel noted brachial plexus tension tests were negative.
Non-uniform range of motion - on testing, flexion/extension, side bending, and rotation of the neck were all measured at 70% of the expected normal range. The restriction of motion was symmetrical with no dysmetria evident to the Medical Assessors.
The claimant has no radiculopathy and no non-verifiable radicular signs he is therefore assessed as falling into category DRE I which equates to a WPI of 0%. The Panel notes that both Dr Gehr over 18 months ago and Medical Assessor Gorman almost a year ago found non-verifiable radicular signs, but there were no such signs when the claimant was examined on 15 February 2022.
The Panel is satisfied that the claimant did sustain a soft tissue injury to his neck in the accident but that his neck injury has improved with time which is the natural progression expected in the clinical experience of the medical members of the Panel.

Thoracic and lumbar spine

Mr Younas has complaints of pain and has had other symptoms in his upper back from time to time. On examination by the medical members of the Panel, there was a normal range of movement in the thoracic spine with no guarding and no signs of radiculopathy or non-verifiable radicular complaints. The occasional discomfort and numbness complained of in the upper spine does not conform to any nerve root distribution or a radicular pattern.
Mr Younas satisfies DRE I on that basis and has a 0% WPI for any thoracic spine or upper back injury.
There is no contemporaneous complaint of lumbar spine injury in the records made available to the panel and no allegation by Mr Younas in his claim form or application form of any lower back injury sustained in this accident. His complaint of occasional lower back ache is therefore unrelated to the accident and will not be considered further. If it was connected to the accident, then it would not attract a WPI greater than 0% in any event as it would fall into the category of DRE I.

Examination findings and assessment of WPI - shoulders

The Panel has found that the claimant did not sustain a direct or frank injury to his left shoulder. However, it is the medical members’ clinical judgment that any symptoms including restricted range of motion (and the resulting impairment) could be referred from the claimant’s neck injury and should be included in the impairment assessment.
The Panel has considered that the claimant’s shoulder restricted range of motion is caused by pain, or the perception of pain related to the claimant’s neck injury. If any impairment to the shoulders results from an injury to the neck, then, in accordance with the decision of the Court in Nguyen v Motor Accidents Authority of New South Wales and Anor[23] that impairment must be assessed and its value included in the determination of the claimant’s total WPI.
[23] (2011) NSWSC 351
The panel recorded the following measurements during the course of the examination - flexion 100°/90°, extension 30°, adduction 40°, abduction 90°/100°, internal and external rotation 80° and these have been incorporated into the comparative table below.

Examiner	Allied health req 01.19/02.20		Doctor Gehr 6.08.20	Assessor Wijetunga 7.09.20	Assessor Gorman 9.05.21	Doctor Rosenthal 5.11.21	Panel Members 15.02.22
Left
Flexion	135	110	90	100	160	70	100/90/100
Extension	30	30	40	No measure	30
Abduction	40	100	160	90	90/100/90
Adduction	20	30	40	No measure	40
Ext Rot’n	20	90	90	No measure	80
Int Rot’n	30	90	70	No measure	80

The panel notes the following measurements – flexion 110°/90°/100°, extension 30°, adduction 40°, abduction 90°/100°/90°, internal and external rotation 80° which have been added to the comparison table below.

Examiner	Allied health req 01.19/02.20		Doctor Gehr 6.08.20	Assessor Wijetunga 7.09.20	Assessor Gorman 9.05.21	Doctor Rosenthal 5.11.21	Panel Member 15.02.22
Right
Flexion	170	150	130	160	170	70	110/90/100
Extension	50	50	50	No measure	30
Abduction	90	160	170	90	90/100/90
Adduction	30	50	40	No measure	40
Ext Rot’n	30	90	90	No measure	80
Int Rot’n	50	90	80	No measure	80

The medical members of the Panel discussed with Mr Younas the variability obtained in measuring active range of movement using a goniometer and in particular the dramatic difference compared to that recorded by Assessor Gorman in May 2021.
Mr Younas could not explain why there had been such a deterioration in the range of movement but just said that pain limited his movements.
The medical members of the Panel explained to Mr Younas that due to this inconsistency, in accordance with clauses 6.40 and 6.41 of the MA Guidelines, the recorded range of movement does not have to be used to assess the impairment of the shoulders. He said that he understood this.
On the best measurements obtained by the Panel, the claimant has a 7% left upper extremity impairment which translates to a 4% WPI in accordance with Table 3, page 20 AMA4 Guides. The right shoulder has a 6% upper extremity impairment which also translates to a 4% WPI however, the Panel does not accept these as a true indication of the impairment in the shoulders because of the inconsistency and variability of the claimant’s measurements over time. The Panel therefore looked to the other evidence.
Clause 6.40 requires the medical members of the Panel to use their “clinical skill and judgment” in assessing whether its measurements are plausible. If the Panel has concerns as to the plausibility or veracity of the measurements, the medical members of the Panel are permitted to “modify the impairment estimate accordingly, describe the modification and outline the reasons”.
The Panel has therefore considered the other evidence as to whether there is any shoulder impairment and if so the degree of that shoulder impairment.
Dr Gehr’s findings should probably be discounted due to the difficulty he would have had using a goniometer and inclinometer and examining range of motion from behind a perspex screen. The Panel notes that the claimant’s treating physiotherapist recorded in early 2020 that the claimant’s perception of pain was limiting his movements and the Panel notes that Dr Rosenthal observed pain behaviours with “purposeful restriction of movement”. The Panel notes that Assessor Gorman also observed pain behaviours but that the measurements he took were obtained after encouragement.
The Panel accepts the measurements of Assessor Gorman as more likely to be the true indication of the claimant’s restriction of movement. They appear to be the claimant’s best efforts.

The Panel did consider undertaking an assessment “by analogy” to a similar condition but the Panel was not satisfied there was an analogous condition that could be used to provide a more accurate assessment.

Left shoulder

For the above reasons the Panel finds a 2% WPI for what it considers to be a more plausible restriction of left shoulder motion due to the injury to the neck.

Right shoulder

The Panel notes there has been little mention of the right shoulder in any of the treating medical records and that the claimant has complained of greater symptoms in his left shoulder than his right which is borne out by all of the other assessments in this matter.
The Panel considers it significant that in the request for physiotherapy dated 14 January 2019 the claimant had almost full flexion in the right shoulder and has, when examined by another independent examiner (Assessor Wijetunga) demonstrated a much greater range of motion than the experts retained by the parties.
For the same reasons as given for the finding in relation to the left shoulder, noting the claimant’s reluctance to move expressed to his physiotherapist in the February 2020, the Panel considers the findings of Assessor Gorman, obtained with encouragement better reflect the true impairment of shoulder motion which equates to a 1% WPI.

Knees

The following comparative table is provided in respect of the range of motion detected in the claimant’s knees since the accident.

Examiner	Allied health req 14.01.19	Doctor Gehr 6.08.20	Assessor Wijetunga 7.09.20	Assessor Gorman 9.05.21	Doctor Rosenthal 5.11.21		Panel Members 15.02.22
Right
Flexion	140	90	130	130	Full	130
Extension	0	0	0	Full	0
Left
Flexion	90	90	120	100	Full	110
Extension	10	0	0	Full	0

The Panel has accepted the contemporaneous and consistent records of left knee complaints and is satisfied that Mr Younas injured his left knee at the time of the accident. However, the Panel has also found that, on the basis of Dr Kuo’s records, any ongoing impairment in the left knee is due to the claimant’s underlying degenerative changes in the knee and therefore any current impairment is not accident related.
Had the Panel considered the claimant’s current left knee symptoms were due to the knock to the knee sustained in the accident, the Panel considers the impairment would have been in the order of 2% for the following reasons:
(a)   the range of flexion in Mr Younas’ left knee was measured by the Panel at 110 degrees. The claimant has been examined at other times with flexion measuring 90 - 130 and Dr Rosenthal measured full movement (as did the physiotherapist in 2019 as 135 is considered normal). The Panel also notes the claimant’s treating specialist, Dr Kuo documented flexion of 140 degrees in December 2018 and full range of motion in the left knee in January 2020. This inconsistency in measurements suggests the range of motion is an unreliable method and, in accordance with clause 6.84(e) it should not be used. The Panel notes that Table 41 requires there to be a restriction of knee flexion to less than 110 degrees for there to be considered a mild impairment of motion (4% WPI). However, the Panel’s measurement was 110 degree which is of course not less than 110 degrees;
(b)   when the claimant’s left knee was examined by the medical members of the Panel, there was no ligament laxity detected and no apparent effusion but there was some retro-patella tenderness in the medial side of the left knee. There was no crepitus. Table 62 on page 83 of the AMA4 Guides provides for the assessment of lower limb impairment where the prevailing medical condition is arthritis. The second note to that table provides for a finding of 2% if there had been a history of trauma (which there was) and patella femoral pain (there was some tenderness when examined by the Panel) and if crepitations were felt or heard (they were not and have not been recorded as present by other examiners), and
(c)   there is no other method of assessment that could be used in the Panel’s view.
Mr Younas’ right knee is virtually asymptomatic. The Allied Health request dated 14 January 2019 suggested the claimant’s right knee flexion at that time was 140 degrees and Dr Kuo in April 2019 records a 10 degree loss of range of flexion motion due to pain. Assessor Gorman recorded a full range of motion in the right knee. On examination by the Panel there was flexion of 130° and extension 0° with no ligament laxity and no effusion or tenderness of the knee joint and no crepitation. Noting the right knee recovery documented by Dr Kuo and the degenerative changes on MRI, the medical members of the Panel using their clinical judgment are of the view that any reduction in flexion in the right knee is due to further progression of these degenerative changes and is not related to any injury to the left knee.
Were the right knee injured in the accident or have any relationship to the left knee injury, it would attract a 0% WPI in any event considering Tables 41 and 62 of the AMA4 Guides and there being no other suitable method of impairment.

CONCLUSION

In summary the Panel is satisfied that the claimant sustained soft tissue injuries to his neck (which has caused impaired range of motion in the left and right shoulders) and left knee. The Panel is not satisfied that the claimant sustained any injury to his right knee in the accident or that any impairment in the right knee is related to the left knee injury.
The Panel is satisfied that the claimant’s WPI should be assessed as follows:
(a)   cervical spine – DRE I                  0%
(b)   left shoulder  2%
(c)   right shoulder  1%
It therefore follows that the claimant does not have a WPI of greater than 10% and the certificate of Assessor Gorman should be revoked.

[2022] NSWPICMP 212

3 May 2022