Jabarian v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPICMP 796
•16 October 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Jabarian v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 796 |
CLAIMANT: | Eveline Jabarian |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
REVIEW PANEL | |
MEMBER: | Member Gary Victor Patterson |
MEDICAL ASSESSOR: | Christopher Oates |
MEDICAL ASSESSOR: | Sophia Lahz |
DATE OF DECISION: | 16 October 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; assessment of degree of permanent impairment dispute; claimant was driving to work when the insured vehicle ran a red light and collided with the passenger’s side of the claimant’s vehicle; ambulance attended and conveyed the claimant to Bankstown Hospital; claimant says she sustained head, cervical spine, thoracic spine, lumbar spine injury, left shoulder, right shoulder, left wrist, right wrist, hip, right leg, right foot, and right knee injuries as a result of the accident; insurer disputes the duration and extent of those alleged injuries and impairments; Medical Assessor found all injuries caused by motor accident and assessed 2% whole person impairment (WPI) for left shoulder by analogy; Held – Review Panel found 5% WPI for cervical spine (persistent dysmetria) and 2% WPI for each shoulder (by analogy); total 9% WPI; certificate revoked. |
DETERMINATIONS MADE: | CERTIFICATE REVIEW PANEL ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENT Certificate issued under s 7.26(7) of the Motor Accident Injuries Act2017 (the Act) 1. The Review Panel revokes the certificate dated 18 January 2025 and issues a new certificate determining that: (a) The following injuries caused by the motor accident give rise to a permanent impairment of 9% and IS NOT GREATER THAN 10%: · cervical spine – soft tissue injury with dysmetria; · thoracic spine – soft tissue injury; · lumbar spine – soft tissue injury with referred pain to hips; · left shoulder – soft tissue injury; · right shoulder – rotator cuff tear; · right leg – soft tissue injury; · right knee – soft tissue injury; · right foot – soft tissue injury; · left wrist – soft tissue injury; · right wrist – overuse symptoms, and · left knee – soft tissue injury. The soft tissue injuries to the head have resolved with no assessable permanent impairment. (b) The following injuries referred to the Panel have been assessed and determined to be not caused by the motor accident: · right wrist – soft tissue injury; and · hips – soft tissue injury. An assessment of degree of permanent impairment of these injuries is therefore not required. |
(a)
STATEMENT OF REASONS
INTRODUCTION
On 11 December 2021, Eveline Jabarian (the claimant) was driving to work. Her vehicle was proceeding through the intersection of Brunker Road and Rookwood Road at Yagoona with a green light. The insured vehicle ran a red light and collided with the passenger’s side of the claimant’s vehicle. The claimant was unsettled and unclear on what exactly had occurred. An ambulance attended and conveyed the claimant to Bankstown Hospital where she was assessed, treated and discharged after about twelve hours. The claimant’s vehicle was written-off for insurance purposes.
The claimant says that, as a result of the accident, she sustained the following injuries/disabilities:
(a) head injury – soft tissue injury
(b) cervical spine injury – multi-level cervical foraminal stenosis/discal injury with radiculopathy into the upper limbs and fingers
(c) thoracic spine injury – discal injury
(d) lumbar spine injury – disc bulges at multi-levels with radiculopathy into the lower limbs
(e) left shoulder injury – soft tissue injury due to referred pain from the cervical spine and overuse due to the right shoulder injury
(f) right shoulder injury – complete tear of the long head of the biceps, partial thickness tear of the subscapularis and a large full thickness tear of the supraspinatus tendon
(g) left wrist injury – soft tissue injury
(h) right wrist injury – soft tissue injury
(i) hip injury – soft tissue injury and referred pain from lower back
(j) right leg injury – soft tissue injury
(k) right foot injury – soft tissue injury
(l) right knee injury – soft tissue injury
The insurer disputes the duration and extent of those alleged injuries and impairments.
NRMA (the insurer) indemnifies the owner and/or the driver of the at-fault vehicle for liability to pay to the claimant any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (Act). The insurer admitted liability for payment of statutory benefits after twenty six (26) weeks from the date of the accident. The insurer also admitted liability for payment of Common Law damages. The insurer declined to concede that the claimant’s accident-related permanent impairment exceeds the 10% threshold for both physical and psychiatric injuries. That decision was based upon medical evidence.
ASSESSMENT UNDER REVIEW
As there is a dispute between the parties about the degree of permanent impairment under Schedule 2, cl 2(a) of the Act, the claimant was referred to Medical Assessor Ian Cameron for determination of the dispute.
Medical Assessor Cameron certified on 18 January 2025 as follows:
The following injuries caused by the motor accident give rise to a permanent impairment of 2% and IS NOT GREATER THAN 10%:
- head – soft tissue injury
- cervical spine – soft tissue injury
- thoracic spine – soft tissue injury
- lumbar spine – soft tissue injury
- right shoulder – soft tissue injury
- left shoulder – soft tissue injury
- right wrist – soft tissue injury
- left wrist – soft tissue injury
- right hip – soft tissue injury
- right leg – soft tissue injury
- right foot – soft tissue injury
- right knee – soft tissue injury
- left knee – soft tissue injury
Medical Assessor Cameron assessed impairment in the left shoulder by analogy. That was because movements of the left shoulder were inconsistent due to pain. He did not think it appropriate to rely on the measured range of motion. Medical Assessor Cameron assessed 2% whole person impairment (WPI) by analogy with mild crepitation. He made no apportionment for pre-existing/subsequent impairment, nor adjustment for treatment effects.
Medical Assessor Cameron found that radiculopathy, as defined in the Motor Accident Guidelines (Guidelines), was not present at the cervical spine or the lumbar spine.
THE REVIEW
The claimant sought a review of Medical Assessor Cameron’s certificate, on the grounds that the medical assessment was incorrect, within the meaning of s 7.26 of the Act, in a number of material respects. The claimant relied upon the particulars set out in the application and supporting documentation.
The claimant brought the application within the time prescribed by s 7.26(10)(a) of the Act and cl 34 of Procedural Direction PIC 7 (28 days).
The claimant’s grounds for review are as follows:
(a)Medical Assessor Cameron failed to properly assess the claimant’s right shoulder impairment as he concluded that the only available method of evaluation related to abnormal range of motion. The claimant says that approach was a misapplication of the Guidelines contrary to the claimant’s objective evidence of significant injury and disability in the right shoulder, as a direct result of the subject accident, which has required surgical intervention. (The Panel notes that Medical Assessor Cameron found a full range of motion at the right shoulder).
(b)The claimant maintains that Medical Assessor Cameron erroneously concluded the assessment of permanent impairment in the left shoulder should be made by analogy as the clinical information does not show that there are major significant pathological changes present in the left shoulder. The claimant submits that an ultrasound of the left shoulder performed on 17 December 2024 is evidence of significant objectively demonstrable pathology in terms of causation and impairment.
(c)The claimant also relies upon the Nguyen principle[1] noting the claimant’s consistent complaints and evidence of pathology in both the cervical and lumbar spines with consistent respective reports of radicular pain into the other and lower limbs as a result of same (claimant’s emphasis).
(d)Medical Assessor Cameron failed to take accurate and mandated loss of range of motion measurements with the required use of a goniometer.
(e)Medical Assessor Cameron provided inadequate reasons for opting not to employ the most appropriate and accurate assessment method, being the active range of motion measurement method with the assistance of a goniometer, and has not provided any evidence or detail with respect to his statement that the claimant’s shoulder movements were inconsistent or abnormal.
(f)Medical Assessor Cameron failed to identify any pre-existing symptomatic injuries and impairments and to undertake the usual mandatory deduction assessments in terms of impairment and/or causation.
(g)Medical Assessor Cameron made findings which are speculative and which contradict the medical evidence.
(h)None of Medical Assessor Cameron’s “erroneous and negative findings on impairment and/or causation which contradict the preponderance of the evidence” were put to the claimant for comment.
(i)Medical Assessor Cameron failed to perform any of his assessment measurements regarding the claimant’s loss of range of motion with the use of an inclinometer and/or goniometer with regard to the claimant’s spinal and limb impairments as mandated in Chapter 3 of the AMA 4 Guides.
[1] Nguyen v The Motor Accidents Authority of NSW and Zurich Australian Insurance Limited [2011] NSWSC 351
There is a detailed summation of the claimant’s post-accident treating evidence which it is not necessary to repeat in detail. Briefly, the claimant refers to the ultrasound right shoulder dated 14 December 2022 which reports a complete tear of the long head of biceps, a small partial thickness tear of the subscapularis and a large full thickness tear of the supraspinatus tendon. The claimant also refers to an arthroscopic rotator cuff repair surgery performed on 16 May 2023 by Dr Jonathan Herald. Reference also is made to the findings of a MRI right shoulder performed on 29 March 2023.
The claimant’s application for review was opposed by the insurer on various grounds. As those submissions were not accepted by the President’s delegate, it is not necessary to state them in detail. They can be summarised as follows:
(a)As to the alleged Failure to assess the Claimant’s right shoulder impairment, the insurer notes the Medical Assessor found a full range of motion at the right shoulder and that his determination of permanent impairment was made in accordance with Chapter 3 Figures, 38, 41 and 44 (pages 42 – 44 of AMA 4). The insurer submits that the Medical Assessor assessed the claimant’s right shoulder in accordance with the Guidelines.
(b)As to the alleged Failure to assess the Claimant’s left shoulder impairment, the insurer submits that the Medical Assessor had regard to the ultrasound performed on 17 December 2024 and that he found inconsistencies in range of motion of the left shoulder on examination. The insurer submitted that the Medical Assessor carefully set out the methodology he was required to adopt in accordance with the Guidelines and gave comprehensive reasons for his findings.
(c)As to the alleged Failure to use a goniometer, the insurer refers to cl 6.50 of the Guidelines which states that, if there is inconsistency in range of motion, then a goniometer should not be used to evaluate impairment. The insurer also submitted that there is no evidence that the Medical Assessor did not use a goniometer for his measurements.
(d)As to the alleged, Failure to apply the Nguyen principle, the insurer referred to cl 6.21 of the Guidelines, which requires “The evaluation should only consider the impairment as it is at the time of the assessment”. The insurer submitted that, having found no neurological abnormality in the cervical or lumbar spine, it was appropriate for the Medical Assessor to find that the Nguyen principle did not apply.
(e)As to the alleged Failure to assess the claimant’s radiculopathy, the insurer refers to cl 5.8 of the Guidelines and submits that the claimant has not provided any evidence that she has two or more of the prescribed clinical signs of radiculopathy, related to the subject accident. The insurer submits that the medical reports do not contain evidence of clinical signs of radiculopathy necessary to meet the method prescribed by the Guidelines and therefore, Medical Assessor Cameron has not made a reviewable error.
Further, the insurer says the claimant does not address how the reported symptoms, recorded by the Medical Assessor at the date of the examination, meet the definition of radiculopathy under the Guidelines.
The insurer submitted that the Medical Assessor reached a finding that the claimant’s cervical spine symptoms, caused by the accident, were as a result of soft tissue injuries, for which the Medical Assessor provided adequate reasons.
(f)As to the alleged Failure to deal with the issue of causation, the insurer submitted that there is no causation issue in this matter and that the Medical Assessor dealt with all aspects of the dispute between the parties.
(g)As to the alleged Denial of procedural fairness by failing to properly address inconsistencies, the insurer disputes there was an “inconsistency” as to the claimant’s alleged injuries and, specifically, the presence of radiculopathy that the Medical Assessor ought to have brought to the attention of the claimant. The insurer says it is unclear from the claimant’s submissions what exact findings made by the Medical Assessor are speculative. The insurer submitted that the Medical Assessor’s findings are in direct correlation of the evidence that was before him at the time of his assessment. The insurer further submitted that there is no inconsistency and, in fact, the evidence is consistent that there were no complaints of radiculopathy pre-dating the surgery referred for determination by the Medical Assessor.
The insurer concluded by noting the claimant does not challenge or dispute that any of the history contained in the Certificate is incorrect or inconsistent with the history the claimant provided to the Medical Assessor.
President’s delegate Stephanie Wigan issued a Determination of an Application for Review of a Medical Assessment on 20 March 2025 which stated the satisfaction of the President’s delegate there is a reasonable cause to suspect that Medical Assessor Cameron’s assessment was incorrect in a material respect The basis of that decision was stated to be some confusion regarding precisely what inconsistencies may have been put to the applicant for comment. The applicant submitted that the Assessor failed to properly put inconsistencies to her for comment. It was also submitted that the Assessor had failed to provide sufficient reasons regarding the inconsistencies that were put to the applicant for comment. Accordingly, the claimant’s review application was accepted.
Pursuant to cl 128(1) of the Personal Injury Commission Rules 2021 (PIC Rules), the Panel is to conduct and determine the proceedings, in accordance with procedures determined by the Panel.
Medical Assessor Cameron found 4% whole person impairment (WPI) for the left shoulder and 0% WPI for each of the other referred injuries. He made no adjustment for pre-existing/subsequent impairment, apportionment or treatment effects.
OTHER ASSESSMENT
Medical Assessor Gerald Walsh certified on 13 November 2024 as follows:
The following injuries caused by the motor accident give rise to a permanent impairment of 7% and IS NOT GREATER THAN 10%:
- post-traumatic stress disorder; and
- major depressive disorder.
Medical Assessor Walsh made no adjustment for pre-existing/subsequent impairment or treatment effects.
STATUTORY PROVISIONS
A medical assessment matter is determined in accordance with Division 7.5 of the Act. The matter is determined at first instance by a Medical Assessor and, on review, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
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 a Panel, reviewing a decision of a Medical Assessor.[2]
[2] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written Application.[3]
[3] 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.[4]
[4] Section 7.26(6) of the Act.
All members of the Review Panel had no previous involvement with the claimant or with this matter.
CAUSATION OF INJURY
Causation of injury is addressed in the Guidelines as follows:
“6.5 An assessment of the degree of permanent impairment is a medical assessment matter under cl 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical Assessors must be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.
6.6 Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:
Causation means that a physical, chemical or biological factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contributed to the worsening of the impairment, which is a non-medical determination.
This, therefore, involves a medical decision and non-medical informed judgment.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
See Briggs v IAG Limited t/as NRMA Limited.[5] See also Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956,[6] wherein his Honour Justice Wright stated at (35):
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principes were intended to be applied when a medical assessment was being made in relation to causation of minor injuries.”
[5] Briggs v IAG Limited t/as NRMA Insurance [2022] NSWSC 372.
[6] Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956.
Wright J then described the Panel’s role in a medical review which is to:
“Consider whether the motor accident did cause or contribute to (the claimant’s condition). This requires, not a consideration of material derived as a result of an internet search… but rather a consideration of the material referred to in 5.6 of the Guidelines, namely all the evidence available to the Panel, including all relevant findings derived from:
(1) a comprehensive, accurate history, including pre-accident history and pre-existing conditions;
(2) a review of all relevant records available at the assessment;
(3) a comprehensive description of the injured person’s current symptoms;
(4) a careful and thorough physical examination;
(5) diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
BUNDLES OF DOCUMENTS
The parties have presented their respective bundles of documents upon which they rely. The Review Panel (Panel) has read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel, or a Panel Member, has not read it, nor taken it into consideration. The same principle applies to parties not referring to, nor specifically relying upon, a document in their own bundle and submissions.
The fact that evidence is not referred to in these reasons does not mean it has been overlooked. It is not required that each piece of evidence be mentioned. The Panel is not required to “analyse every piece of information from every opinion contained in a document with which it was provided”. The Panel has come to its own conclusions and has taken its own history.
MATERIAL BEFORE THE REVIEW PANEL
The claimant relied upon the following material which the Panel has considered:
DOC
Document Name
Date
Page
1
Claimant’s submissions
18.09.2024
1 – 2
2
Application for personal injury benefits
29.12.2022
3 – 8
6
Report of Dr Aman Suman, psychiatrist (x2)
28.03.2024
22 – 38
7
Clinical notes from Orthopaedic Clinic Sydney
As of 22.01.22
39 – 124
8
Bankstown Lidcombe Hospital Discharge Summary
12.12.2022
135 – 139
9
Clinical notes form Yagoona Medical Centre
As of 24.10.23
140 – 205
10
Clinical records from Zen Psychology
As of 07.02.23
206
11
Updated clinical notes from Zen Psychology
As of 02.09.24
207 – 231
12
Clinica notes from Dr Prakash Damodaran
As of 17.01.24
232 – 261
13
Updated clinical notes from Dr Damodaran
As of 06.09.24
262 – 265
14
Recovery Plan
07.02.2023
268 – 273
15
Various IPAR Rehab Plan
Various
274 – 286
16
Various Allied Health Recovery request
Various
287 – 303
17
Reports from Dr Jonathan Herald, orthopaedic surgeon
Various
304 - 306
This report deals with treatment plan and working capacity.
18
Report from Dr Supriya Chowdhury, pain specialist
20.06.2024
307 - 308
This report deals with treatment plan.
19
Functional Capacity Evaluation Report by Robert Henriques Exercise Physiotherapist
26.07.2024
309 – 321
20
Claimant’s review submissions
17.02.2025
340 – 355
2A
Claimant’s further submissions in relation to WPI dispute
19.12.2024
324 – 328
These submissions go to procedural matters arising from the acknowledged fact that the claimant did not provide a Medico-Legal report quantifying the extent of whole person impairment arising from her physical injuries. The claimant submitted that sufficient medical evidence had been provided from the treating practitioners that support the contention that her degree of impairment is greater than 10% WPI.
3A
Certificate and Reasons of Medical Assessor Cameron
18.01.2025
329 – 339
6A
Police Report
17.04.2026
359 – 366
7A
Clinical records of Dr Chowdhury
10.04.2025
367 – 390
8A
Clinical records of Dr Damodaran
07.03.2025
391 – 428
9A
Clinical records of Dr Herald
06.01.2025
429 – 490
The insurer relied upon the following material which the Panel has considered:
| DOC | Document Name | Date | Page | |
| R1 | Insurer’s submissions in reply to claimant’s review application (see previously) | 10.03.2025 | 5 | |
| R2 | Submissions in reply to WPI dispute application | 10.10.2024 | 13 | |
| The insurer submitted that the application for assessment of WPI arising from the claimant’s physical injuries should be dismissed for lack of evidence. | ||||
| R3 | Imaging and Injection Reports | Various | 35 | |
| R4 | Medical records of Dr Herald (orthopaedic surgeon) | Various | 54 | |
| R5 | Physiotherapy reports | Various | 66 | |
| R6 | Exercise Physiology Records | Various | 106 | |
| R7 | Certificates of Capacity and Medical Certificates | Various | 127 | |
| R8 | Rehabilitation records | Various | 204 | |
| R9 | Clinical notes – Yagoona Medical Centre | 13.01.2023 | 450 | |
| 28. | R5 | Report of Dr Andrew Keller, occupational physician to insurer’s lawyers | 19.03.2025 | 461 |
Dr Keller stated the Diagnosis and Disabilities (from the accident) as follows:
“From the initial ambulance and hospital records, it appears she suffered injuries to her neck and left hand. No fractures were diagnosed. The diagnosis would be of a temporary exacerbation of cervical spine facet joint arthritis. Resolved. Left hand soft tissue injury. Resolved.”
Under the heading Prognosis, Dr Keller said as follows:
“I would expect that she recovered from the physical effects of the accident in less than 3 months from the time of the accident.”
Under the heading Whole person impairment, Dr Keller says as follows:
“Ms Jabarian makes claims of non-verifiable pain in her neck and lower back, hips and shoulders. She has investigative evidence for constitutional age-related degeneration in her cervical and lumbar spine, her hips and knees. She has a right shoulder arthroscopic repair for what is reported as a chronic rotator cuff tear. Due to the inconsistent physical presentation during today’s assessment, no reliable assessment of permanent physical impairment of the left shoulder can be made. I am unable to find objective evidence of any physical conditions caused by the accident that can assessed for permanent impairment in accordance with the Guides.”
Dr Keller ascribes the whole of the claimant’s condition to age-related degeneration.
EXAMINATION REPORT
The report of Medical Assessor Christopher Oates and Medical Assessor Sophia Lahz is as follows:
“Medical Assessment of Mrs Eveline Jabarian PIC Suites 1130-130 2 Hours Assessor Sophia Lahz and Assessor Chris Oates 17/7/25
Mrs Jabarian is aged 68 and right-handed and presented punctually for the appointment. She was neatly attired and well-presented whilst remaining pleasant and cooperative throughout the 120-minute medical assessment.
Pre-accident
Mrs Jabarian told the medical assessors that she had been born in Lebanon, arriving to live in Australia at the age of 12-13. She has lived in Yagoona with her husband for 38 years and had three children, only two of whom survive. She has a daughter living in Nelson Bay and a son/daughter-in-law living close to her Sydney home.
Her husband receives some funded care due to work-related asbestosis.
For 12 years before the motor accident on 11/12/22, she worked at Coles Greenacre, 2IC in the self-service area 32-36 hours per week. She was unable to resume work after the motor accident because the employer would not accept suitable duties certificates. In April 2025, she received a formal termination letter from Coles. She is not receiving any Centrelink or else Insurer income, in part because of a family auto mechanical business, which her son runs.
Mrs Jabarian denied any physical problems before the subject motor accident. She said that she had been physically very active and there was no history of any kind of surgery. Her general health had been excellent and the only medication she was taking before the motor accident had been a statin.
She has never smoked and only consumed alcohol on special occasions.
Due to widespread aches and pains along with sleep disturbance, she now takes numerous medications including Voltaren Emulgel, Celecoxib 200 mg twice daily, Melatonin 2 mg nocte, Duloxetine 30 mg daily, Voltaren 25 mg daily, Endep 20 mg daily, Mersyndol 2 tablets at night and Ibuprofen 150/Panadol 500.
She has not gained weight since the accident, although she has developed pre diabetes and been prescribed Metformin 1 g daily. She also takes Pantoprazole to counter the gastrointestinal adverse effects of anti-inflammatory medications. She continues Crestor, a statin for elevated cholesterol.
Subject accident
Mrs Jabarian confirmed her involvement in the subject motor accident. On 11/12/22, she was the restrained driver of a Toyota Kluger, close to home and been proceeding through a green light at an intersection when a 4WD allegedly transgressed the light, with resultant T-bone collision with the driver’s side of her vehicle. The impact caused her vehicle to be pushed to the other side of the road without secondary impact although the airbags deployed.
She said at the time of the crash, both her hands, especially the left were tightly gripping the steering wheel. She attributes some ongoing discomfort at the radial wrist and thumb to this. She believes the left knee hit the base of the steering wheel. Her recollections of the events were hazy due to shock and she thought that in the immediate aftermath she had been “in and out of consciousness”. She described her whole body as “rocked” by the accident.
Ms Jabarian thinks although she is not entirely sure that the right shoulder struck the driver’s door.
After the accident, emergency workers “cut her out” of the car and she said that she was considerable bruising. She said too that there were also “people everywhere” and her car was later written off.
The ambulance, fire and police attended the scene.
Subsequently, Ms Jabarian was taken to Bankstown Hospital where she remained for approximately 24 hours. X-rays and “pan” scans were undertaken with “nothing broken” although she found she was unable to lift the right arm beyond the horizontal and there was pain “everywhere”.
The hospital records 11/12/22 refer to the symptomatic complaints made at the time for headache, neck and right shoulder. CT scans of the brain and neck showed no acute injuries although there was multilevel degenerative change at the neck. She was to see the GP in a few days and have a right shoulder ultrasound if pain persisted.
Her husband who was with her throughout the hospital encounter, took her home the next day.
She saw a GP on 13/12/22 at which stage the painful right arm was in a sling.
A right shoulder ultrasound on 14/12/22 showed complete tear of the long head of biceps and large full thickness supraspinatus tear with retraction and bursitis.
Ongoing, there was pain in the right shoulder, neck, knees, right leg, thoracic back, lower back with spread to the right lateral thigh, left wrist/hand/thumb (tingling thumb and index), and to a lesser extent the left shoulder (compared with the right).
Regarding the spine, she described persistent pain from the neck all the way down the spine into the buttocks. The above mentioned body parts (aside from the left shoulder) were all mentioned in the early (December 2022 GP records) although the left shoulder was noted in physiotherapy AHRRs dated 22/1/23 five weeks post MVA.
s to claimed injury of the right wrist, the Panel could find no contemporaneous record and the claimant says that apart from mild symptoms at the right shoulder, there is “nothing wrong” with the right upper limb. As to the hips, the contemporaneous records do not indicate any specific hip injury although the claimant indicated that persistent lower back symptoms do radiate around the lateral hips. There were some investigations of the buttocks during January 2023 due to symptoms referred from the back to the buttocks/hips.
There have been multiple investigations of Ms Jabarian’s painful body parts undertaken since the accident, and throughout 2023-2024.
A CT of the left wrist on 14/12/22 showed no fractures.
She received a right shoulder steroid injection without enduring benefit on 16/12/22 two days after the ultrasound showing rotator cuff tear with retraction.
She said the left shoulder had to “compensate” for the initially injured right shoulder and symptoms here gradually worsened after the accident. It became significantly bothersome at some (unknown) stage during 2023.
After the accident, she initially received physiotherapy twice weekly to painful body parts. Treatment has comprised massage, exercise and hydrotherapy. (She is still receiving treatment which the Insurer funds.) Treatment helps short-term though benefits are not enduring.
A CT scan of the lumbar spine on 19/1/23 had shown slight anterolisthesis of L3 on L4 secondary to advanced degenerative disease involving the facets and moderate degenerative change of the L45 facets. The L5S1 facets were fused. There were mild degenerative changes of the SIJ. There was no evidence of recent fracture. There were mild circumferential bulges at L23 and L34 and discophyte at L45 without significant canal stenosis. There were bilateral L4 foraminal stenoses, severe on the left and moderate on the right.
An ultrasound of the hips and buttocks on 19/1/23 showed bony enthesopathy at the gluteal tendon insertions at the greater trochanters bilaterally. There was no associated trochanteric bursitis. The hamstring origins at the ischial tuberosities remain intact and gluteal bellies intact.
In March 2023, she commenced seeing a spinal surgeon Dr Damodaran due to spinal pain, mostly the neck and lower back, and to a lesser degree the middle back.
Dr Damodaran’s report dated 1/3/23 referred to the claimant’s multiple pain issues since the motor accident involving the back, neck with bilateral upper limb radiation, right shoulder and bilateral knee pain. His examination findings referred to pain-related motion limitations without obvious weakness. There were no fracture dislocations. There was C56 and C67 degenerative change on imaging. She was referred for MRI scans of the neck and lower back. She was to continue physiotherapy.
An MRI of the cervical spine 27/3/23 showed narrowing of left C3 and C4 foramina as well as bilateral C6 and right C7 foramina. There was severe left facet disease at C23 and bilateral C34.
An MRI of the lumbar spine 27/3/23 showed left paracentral bulging at L5S1 with extension to the left neural foramen and L5S1 narrowing with abutment of left L5 and S1 roots. There was left L45 foraminal narrowing with abutment of the L4 nerve root and bilateral L45 and L5S1 facet osteoarthritis.
Mrs Jabarian explained to the medical assessors that her understanding was of accident-induced severe damage to all three spinal regions. She said that she must always be very careful how she moves her back in case of worsening pain.
An MRI and x-ray of the right shoulder 28/3/23 indicated small osteophytes at the humeral head and mild reduction of the AC joint space. The right shoulder MRI showed chronic tears with full thickness involvement of the supraspinatus and extension to the superior subscapularis. There is a tear in the anterior part of the infraspinatus.
A bone scan on 28/3/23 showed degenerative change of the cervical and lumbar spine with facet disease most active at right L45 and left C45.
The GP referred Ms Jabarian to Dr Jonathan Herald, an orthopaedic surgeon regarding the right shoulder, and in May 2023 he performed a right rotator cuff repair which was very helpful for both pain and motion restriction.
On 3/5/23, Dr Damodaran (spinal surgeon) referred to lumbar spine MRI findings of severe degenerative change at L5S1 with Modic changes/grade 1 listhesis/facet osteoarthritis at L45. His stated diagnosis was L45 and L5S1 facet mediated back pain. He described complaints of back pain with intermittent leg pain.
He did not recommend spinal surgery, instead advising painkillers, many of which she is still taking, and also sent her to pain physician Dr Chowdhury whom she started consulting in mid-late 2023. She was also still attending physiotherapy and hydrotherapy.
An ultrasound and x-ray of the right shoulder 18/7/23 showed mild degenerative change of the humeral head and AC. Anchors were present in the long head of biceps. Proximal to the anchors, there was thinning of the biceps tendon. The short head of the biceps was normal. Anchors are present in the posterior fibres of the SS. There were no anterior or mid fibres seen which could be secondary to an old injury.
A left wrist x-ray was also done on 23/10/23 showing scaphotrapezial-trapezoid degenerative change.
MRI left wrist 23/10/23 showed cystic change at the lunate and triquetrum without discrete tearing. There was reference to possible “hairline fracture” at the capitate.
X-rays of both knees 23/10/23 showed mild medial joint compartment narrowing with marginal osteophytes.
X-ray of the right ankle 23/10/23 showed mild anterior joint space narrowing with dorsal calcaneal enthesopathy.
The pain physician (Dr Chowdhury) arranged various injections/nerve blocks to the lower back.
Ms Jabarian received CT-guided L45 facet joint injections 24/5/23 and 24/8/23, steroid injections to both ischial tuberosities 31/7/23, lumbar medial branch blocks (reportedly helpful in January 2024 and then again in June 2024) and then lumbar radiofrequency procedures on 12/9/24.
Ms Jabarian told the medical assessors there were four procedures to the lumbar spine in total (occurring in hospital), the first two being helpful, the third causing greater pain and the fourth bilateral cluneal nerve injections giving some transient effect before lower back symptoms with bilateral buttock radiation, recurred.
Ms Jabarian discussed neck symptoms with Dr Damodaran. His correspondence on 3/5/23 referred to neck pain with bilateral upper limb symptoms, worse on the left in a C6 pattern with complaint of numbness at the thumb.
Dr Damodaran 3/5/23 referred to MRI cervical findings including C45, C56 and C67 disc prolapses/discovertebral disease associated with multilevel facet arthritis especially affecting left C45.
Dr Damodaran 14/7/23 referred to improved right shoulder range of motion and less neck pain. He did recommend CT guided injections to the cervical facet joints although the claimant told the medical assessors that she has no recollection of any neck injections/blocks.
On 18/7/23, an x-ray of the right shoulder showed mild degenerative change at the humeral head and AC joint. An ultrasound showed anchors at the biceps which was healing though the tendon was thin. There were also anchors in the posterior supraspinatus.
On 7/8/23, Dr Herald (shoulder surgeon) referred to full range of shoulder motion with grade 4 strength at the rotator cuff. He recommended physiotherapy to improve strength. He also noted left wrist swelling, bilateral patellofemoral maltracking, right ankle lateral ligament weakness whilst recommending a gym-based exercise programme.
On 24/8/23 she received a left-sided L4/5 facet block.
On 30/8/23 Dr Damodaran (spinal surgeon) noted there was no radiculopathy. The pain physician would organise radiofrequency procedures and there would only be spinal surgery only If spinal pain recurred.
On 14/9/23, Dr Chowdhury (pain physician) noted that low back pain improved with walking. There had been L4/5 facet blocks and L4 nerve root injection. The claimant needed help with personal care such as dressing. Dr Chowdhury referred to normal neck and thoracic movements although there was pain on lumbar extension. There was cervical and lumbar pain from the facet joints and cervical radicular pain. She suggested medial branch blocks for the cervical and lumbar spine as well as physiotherapy and psychology interventions.
Dr Damodaran on 23/9/23 referred to cervical radicular pain with thumb numbness and right upper limb radicular pain.
On 6/11/23, Dr Herald referred to ongoing pain in the ankles, knees and back and neck. He referred to radicular symptoms in both upper limbs, neck tenderness and an uncomfortable shoulder. There was a positive right-sided Spurling’s test. He recommended NSAIDS, hydrotherapy and core exercise programme.
Medical records indicate a formal discharge from physiotherapy in November 2023 in favour of exercise physiology interventions.
On 5/12/23 Dr Chowdhury (pain physician) referred to a fall en route to hospital with increased low back pain and dysaesthesia in the toes. She had been taking Mersyndol and she increased the Amitriptyline to 20 mg daily. Approvals had been given for facet blocks.
On 22/1/24, Dr Herald noted good results from a spinal injection. She was taking Endep, Celebrex and seeing an exercise physiologist. There was tenderness at the right greater tuberosity with full range of motion and clicking. He said the left ankle and right knee were improving and suggested increased medication and physiotherapy.
By 15/4/24, Dr Herald (shoulder surgeon) had suggested that the shoulder pain was coming from the neck. He referred to neck pain with radicular symptoms in the right upper limb as well as headache associated with a positive Spurling test. He recommended MRI scans of the neck and right shoulder, and if the right shoulder scan were clear, she should see Dr Damodaran about the neck.
By 22/4/24, Dr Herald noted ongoing neck and back pain with tenderness of the cervical spine. There were radicular symptoms in both upper limbs. There was left shoulder impingement and there was also back pain with radicular symptoms. His diagnoses were aggravated spondylosis and progressive degeneration. There was back pain with knee pain and neck pain with shoulder pain. He suggested referral again to Dr Damodaran and wanted repeat MRI scans of the lumbar spine and cervical spine.
MRI of the right shoulder on 13/5/24 showed chronic supraspinatus rupture with atrophy, infraspinatus and subscapularis tendinopathy with small insertional tears. There were also AC osteoarthritis, subacromial bursitis and a superior labral tear. A plain right shoulder x-ray of the same date showed no degenerative changes.
MRI of the cervical spine on 13/5/24 showed advanced discovertebral changes with mild to moderate C56 and C67 central canal stenosis, without significant cord impingement but with severe left C23, C45 and bilateral C56 and C67 exit foraminal stenoses.
MRI of the lumbar spine on 13/5/24 showed L45 listhesis with impingement of the left L4 nerve root with significant L5S1 foraminal stenoses impinging the exiting L5 roots.
Dr Herald on 27/5/24 referred to ongoing neck, back and right shoulder pain with full shoulder movements but tender greater tuberosity and grade 4 supraspinatus power. He referred to a small right shoulder retear, recommending no further shoulder surgery but to attend physiotherapy to strengthen the shoulder. There was also back pain with stiffness. He noted too a positive Spurling’s sign at the neck. He noted that the MRI scans of the lumbar spine and cervical spine had indicated nerve root impingement which could contribute to radicular symptoms.
By 18/6/24, Dr Herald noted she had been referred to the pain specialist and there was recommendation for multidisciplinary pain management. He suggested she confine herself to activities below shoulder height and to rely on physiotherapy assessment to determine her lifting capabilities. He did not think she would be resuming pre injury duties.
Dr Chowdhury 20/6/24 noted that low back pain had responded well to medial branch blocks although there was still some low back pain with occasional radiation from the distal hip. There was good lumbar flexion and extension and there was pain on lateral flexion. She also discussed left thumb pain and swelling, recommending steroid injection.
On 3/7/24, Dr Damodaran’s correspondence refers to recently worsening neck pain with radicular upper limb pain (sic). He noted MRI findings of multilevel foraminal stenoses at C56 and C67 without cord signal change. He also referred to severe left L45 degeneration with listhesis and Modic changes at L5S1.
Dr Chowdhury (pain physician) on 12/9/24 noted no significant response to left lumbar radiofrequency ablation although she said there had been a response on the right. Left thumb pain had reduced whilst left shoulder pain had increased. She was having hydrotherapy, physiotherapy and pain medication such as Celebrex and Mersyndol. A bone scan had shown mild osteoarthritis at the left hand. She described normal neck movement aside from reduced rotation. There was C5/6 tenderness and left lumbosacral tenderness with tenderness at the cluneal region.
Return to work documentation 13/9/24 referred to left-sided low back pain at the top of the hip, mild arthritis left thumb, pain in the left shoulder/clavicle as well as neck arthritis. The pain specialist had recommended continued exercise programme. The employer would not offer any duties until she had full capacity.
Dr Chowdhury on 7/11/24 noted she was no longer seeing Dr Herald re the shoulders. She complained of worsening left shoulder pain and remained under the care of Dr Damodaran whilst awaiting further cervical spine imaging. There was intermittent back pain especially of the left lumbar region. She was doing a regular exercise programme.
On19/11/24 Dr Damodaran noted that back pain had briefly improved with medial branch blocks. Steroid. CT had shown L4/5 facet arthritis. The surgical management could potentially be lumbar fusion from anterior approach. However, the current pain was manageable with medication and injections and he thought conservative treatment should continue.
An ultrasound scan of the left shoulder 17/12/24 has shown a complete supraspinatus tear in this location although she did receive a steroid injection to this side in June 2024. However, the insurer declined to fund further treatment for the left shoulder.
On 22/1/25, Dr Chowdhury referred to injections at the left cluneal nerves and psoas sheath with steroid and local anaesthetic.
Dr Chowdhury on 27/2/25 referred to significant painful flare ups with psychosocial stressors. The left shoulder was also very problematic. She thought the work capacity had increased to five hours per week although there were no suitable duties. There was family conflict requiring social work input. There was normal lower back movement and there was less tenderness at the lumbosacral region and cluneal regions. Physiotherapy and psychological interventions were recommended, ongoing.
The claimant told the medical assessors that she is still in follow up with Dr Chowdhury and has a further appointment in another few weeks.
In addition to the above listed painkillers, she also uses a TENS machine for symptomatic relief.
Current Symptoms
Neck
She complains of intermittent pain at the neck base with radiation to the shoulders. Shoulder pain tends to parallel neck pain in severity. Neck pain spreads upwards over the back of her head as well as inferiorly over the thoracic spine reaching to the lumbar spine.
Neck pain occurs daily for most of the day and worsened by prolonged standing especially with head down e.g. washing dishes. Neck pain ranges from 2-7/10 intensity and Voltaren can help.
There is intermittent left thumb tingling.
Shoulders
he left shoulder is the more symptomatic now since the right shoulder surgery. However both shoulders L>R are somewhat stiff. The pain is worst over the convexities with left-sided symptomatic radiation from the neck/trapezial region into the upper arm (deltoid region).
She rated the left shoulder pain 2-9/10 intensity and the right shoulder 2-4/10 intensity. The left shoulder is restricted in movement and difficult to lie on. She tends to sleep prone.
The right shoulder is generally not too bad.
There is pain in both shoulders L>R with movement.
Left Wrist/Hand
She complained of swelling over the dorsum of the left wrist which she related to placement of a cannula for one of the spinal pain management procedures.
There is dorsal wrist pain at the radial aspect extending along the length of the thumb.
As noted above, the thumb can still tingle at times although the index is no longer tingling.
Lower back
Pain spreads down from the neck into the lower back, in turn to the upper buttocks and lateral hips but not more distally.
There are no lower limb neurological symptoms and no sciatica.
Knees and Ankles
She referred to “lumps” over the knee caps as well as lumps over the ankles.
There is mostly bilateral anterior knee pain.
General Comments
The aches and pains are hard to describe with respect to frequency and location because they are always “coming and going”.
She can only walk 1-2 blocks before generalised pain compels her to sit down.
Sitting tolerance is limited to 15-20 minutes. During the interview she stood up on several occasions for symptomatic relief.
General Function
She is independent in self-care and was well presented for today’s appointment.
She has her husband’s carers do the chores and family members complete the shopping.
She drives short distances just close to home mostly to collect medications from the pharmacy.
She sleeps poorly due to pain and psychological distress. Flashbacks and nightmares can occur.
Examination
There was central adiposity. Height was 149 cm and weight 60.1 kg.
Ms Jabarian was very guarded and protective with all movements.
Cervical spine
Neck flexion was ½ normal range and extension full. She was especially wary of neck flexion. When bending the neck forward, she complained of a cracking sensation at C7. With repetition, range of neck extension lessened. Lateral flexion to either side was initially 1/3 to either side and when repeated much later, becoming ½ normal range to either side. Rightward neck rotation was ½ normal range and leftward neck rotation 1/3 normal range, the latter restriction remaining unchanged when repeated later. There was thus persistent cervical dysmetria present.
There was tenderness at C67 associated with tightness at the periscapular muscles bilaterally. However, there was no muscle guarding or else spasm.
Upper limb reflexes were present and symmetrical.
There were complaints of tingling at the left thumb tingling although this in isolation does not represent a dermatomal pattern.
The right upper arm girth measured 28.5 cm compared with the left upper arm 30.5 cm 10 cm above the elbow crease (consistent with the known right shoulder rotator cuff tearing/requirement for surgery). 5 cm below the elbow crease, the forearms measured symmetrically at 24.5 cm.
At the shoulder girdles, there was wasting of the right-sided spinati muscles, also consistent with rotator cuff repair surgery.
There was normal sensation throughout the upper limbs, including the axillary nerve distribution over the right upper arm.
There was grade 5/5 upper limb strength in all groups, including about the operated right shoulder.
Upper extremity
Active range of motion at the shoulders is shown in the following table: Active shoulder movements were measured with a goniometer and when restricted, the measurements were repeated to the extent the claimant could tolerate (aiming for three repetitions if possible).
Right
Left
Flexion
120, 90, 100
80, 90
Extension
30, 30, 30
20, 30
Abduction
120, 120, 120
20, 80
Adduction
30, 10,20
40, 20
External rotation
90, 80
30, 30, 50
Internal rotation
70, 80
70, 80
On the right, shoulder restriction was associated with pain complaints at the lateral neck and trapezius.
Similarly, left shoulder motion was limited by complaints of neck and ipsilateral trapezial pain.
Note - It was drawn to the claimant’s attention that Assessor Cameron had found a full range of right shoulder motion although she said that she had no memory of this. She said there were difficulties with right shoulder movement due to prevailing pain levels.
There was a full range of elbow, wrist and hand movements not attracting any assessable WPI according to any of the tables in AMA4.
There was significant swelling present over the left dorsal wrist although as noted active range of motion was full in all planes.
Lumbar spine
At the lower back, there was tenderness at the bilateral sacroiliac joints.
There was no muscle spasm or guarding at either the lumbar or else thoracic spine. There were no thoracic spine non-verifiable radicular complaints.
was Lumbar flexion was ½ normal range and extension 2/3 range, repeated twice 20 minutes apart with similar results.
Left lateral flexion was initially 2/3 normal range and right lateral flexion ½ normal range. With repetition some 20 minutes later, there was ½ normal lateral flexion to either side. Thus, lumbar dysmetria was not consistently present.
Thoracic rotation was 2/3 normal range to either side. When repeated later, it was ¾ normal range to the right and ¼ normal range to the left. Thus, thoracic dysmetria was also not a consistent finding.
There were no non-verifiable radicular complaints in the lower limbs.
Power was intact throughout the lower limbs.
Lower limb reflexes were present and symmetrical.
There was normal lower limb sensation bilaterally.
The left thigh measured 46.5 cm and right 46 cm 10 cm above the patella. The right calf measured 32.5 cm at maximal girth and 33 cm at the corresponding point on the left.
Lower limb neural tension tests were negative with SLR of 80 degrees bilaterally.
Lower extremity
There was a full range of motion at the hips in flexion, extension, internal and external rotation and abduction/adduction.
The left knee moved through 0-140 degrees and the right 0-130 degrees. There was no patellofemoral crepitus and both knees were stable in the AP and ML planes. There were no knee effusions.
The ankle girths were symmetrical (25 cm) at the level of the malleoli.
There was a full active range of motion at the ankles and hindfeet not attracting any WPI according to the specific tables in AMA4.
There were no clinical abnormalities present at either ankle/foot to confer WPI exceeding 0%.
Conclusions
Ms Jabarian has sustained multiple soft tissue injuries with clinical circumstances complicated by chronic pain syndrome with widespread pain complaints.
There has been involvement with multiple treating specialists along with a myriad of investigations performed of painful body parts.
Investigations have indicated (in particular) complete right-sided rotator cuff tearing, subsequently surgically repaired and significant degenerative changes at both the cervical and lumbar spine without demonstrable upper or lower limb radiculopathy at panel re-examination.
There have been multiple targeted injections of lumbar facet joints, lumbar medial branches, ischial tuberosities, shoulders, and cluneal nerves with at most temporary relief.
The claimant suffers from a chronic pain syndrome characterized by fear avoidance of movement, daily activity limitations, physical deconditioning, low mood, poor sleep and high stress levels.
Causation
The ambulance report refers to neck symptoms and symptoms in the left index/hand. There was no obvious traumatic injury to the head.
Hospital records post-accident refer to symptoms of the head, neck and right shoulder.
The contemporaneous GP records 13/12/22 refer to symptoms in the right shoulder, left wrist, left thumb numbness/tingling. On 19/12/22 there is reference to neck pain again with left thumb tingling and low back pain with loss of lumbar movement, with referral to the right lateral thigh and symptoms in both knees and the right foot. There was mention of slight knee swelling. On 22/12/22 there was pain in the pelvic girdle as well as back/hip/shoulder pain with tenderness L5S1 and ischial tuberosity tenderness R>L and lateral hip tenderness.
The left shoulder as noted was mentioned on AHRR physiotherapy dated 22/1/23.
Based on the abovementioned contents of medical records, the Panel accepts soft tissue injuries of the head, cervical spine, thoracic spine, lumbar spine, right shoulder , left shoulder , left wrist, right leg, right foot and knees.
The Panel notes that claimant was noted to demonstrate a large right-sided rotator cuff tear on post-MVA imaging although the mechanism of the subject accident was not one that could result in cuff tearing. The claimant was not even certain there had been impact to the shoulder and there was certainly no forcible reefing or jerking of the right arm to cause such an injury.
On the balance of probabilities, the right-sided rotator cuff tear likely predated the motor accident and was potentially rendered symptomatic by the motor accident. Similarly, a left shoulder rotator cuff tear was demonstrated on imaging post motor accident (albeit much later). However, the Panel would make similar comments regarding the left shoulder, as for the right shoulder ie that a pre-existing chronic cuff tear may have been rendered symptomatic by the accident.
At any rate, by the time of Panel clinical examination, the clinical findings at the shoulders with bilateral loss of motion were not consistent with rotator cuff tearing. There was an inconsistent variable pain-related loss of motion at the shoulders due to symptoms referred from the cervical spine i.e. the Nguyen principle applies.
The panel does not accept soft tissue injuries to the right wrist (in any case, there are no ongoing symptoms). The Panel notes there are symptoms in the right wrist possibly due to overuse. However, the Panel found no WPI for the right wrist based on range of motion observed at clinical examination.
The Panel also does not accept specific injuries to the hips although it does accept that lower back symptoms refer to the pelvis and hips.
Whole Person Impairment
Any head soft tissue injury has resolved so there is no need to assess WPI.
At Panel examination of the cervical spine, there was consistent dysmetria L<R movement equating with DRE II or else 5%.
The neck injury was mild and not capable of causing gross restriction of shoulder motion. Any loss of shoulder motion due to neck symptoms (per Nguyen) would be minor and plausibly involve, at most, just end of range. There was no muscle guarding or spasm nor neurological abnormalities of spinal cord, peripheral nerve or else nerve roots capable of causing significant permanent loss of shoulder motion.
Despite potential nerve root entrapment/abutment on cervical/lumbar scans, she does not demonstrate the two or more necessary clinical signs to confirm presence of either upper limb or else lower limb radiculopathy.
There are potential upper limb non-verifiable radicular complaints at the left thumb with tingling (which could warrant 5% WPI). However, given persistent cervical dysmetria, the claimant has already qualified for the latter 5% WPI at the cervical spine even though the tingling sensations in the thumb do not satisfy the criteria for non-verifiable radicular complaints.
At the right and left shoulders, the claimant demonstrated a variable, inconsistent range of motion due to varying pain levels (symptoms referred from the cervical spine per Nguyen).
Under causation, the Panel has commented upon the causation of the bilateral shoulder restriction.
Therefore, it is not appropriate for the Panel to assess WPI using shoulder range of motion methodology. The Panel determined it most appropriate to determine shoulder WPI via analogy, referring to Table 19, page 59 AMA4 permitting 10% joint impairment for the mild AC joint crepitation severity. 10%. Table 18 page 58 deems 25% maximum UEI of the AC joint i.e. 2.5% UEI rounded to 3% UEI or else 2% WPI (Table3, page 20 AMA4) i.e. 2% WPI for each of the right and left shoulders.
At the left wrist/hand, there were no abnormal clinical findings. There was full range of motion and no other findings conferring WPI exceeding 0%.
As noted above, there was no contemporaneous evidence of right wrist injury. At most, the claimant’s right wrist symptoms might be due to overuse secondary to left wrist injury. However, the Panel found no WPI at the right wrist based on the presence of full range of motion at examination.
At the lumbar spine, there were no findings conferring WPI exceeding DRE1 or else 0% WPI. Earlier there had been symptom referral to the right lateral thigh although this has resolved. There is ongoing symptom referral to the buttocks and lateral hips/pelvis although this is not a non-verifiable radicular complaint. The lumbar pain does not radiate distally to the lower limbs where there are no lower limb non verifiable radicular complaints and nor are there the necessary two signs to support the presence of lumbosacral radiculopathy.
There were no clinical abnormalities of the knees to confer WPI exceeding 0%.
There was a full range of motion in all planes at both hips, knees and ankles. Therefore, Nguyen (referred symptoms from the lumbar spine) is not applicable to any of the lower limb joints.
There were also no clinical findings at the feet and ankles to confer WPI exceeding 0%.
Therefore, total WPI due to the accident comprises 5% WPI for the cervical spine combined with 2% WPI for the right shoulder and then 2% WPI for the left shoulder i.e. 9% WPI without deductible proportion.”
FINDINGS
The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[7]
[7] Section 7.26(6) of the Act.
The Panel is not required to choose between medical opinions and is required to form its own opinions.[8] The Panel adopts the findings and opinions of Medical Assessors who concur with one another. The Panel adds the following further reasons.
[8] Insurance Australia Group Limited v Keen [2021] NSWCA 287 and Insurance Australia Group Limited v Marsh [2021] NSWCA 31.
The Medical Assessors have explained the basis and rationale of their assessments and findings. The impairment assessments made by the Medical Assessors differ from those made by Medical Assessor Cameron because his physical examination findings vary to those made by the Medical Assessors.
The medical assessment of permanent impairment is made at the time of examination. In that respect, the assessment made by Medical Assessor Cameron is outdated, and does not reflect current symptomatology, in the Medical Assessors’ opinion. It is noted that the claimant did not present any medical evidence to quantify the extent of her WPI arising from the subject accident.
CONCLUSION
For the above reasons, the Panel concludes the certificate dated 16 January 2025 should be revoked. The new certificate appears at the commencement of these reasons
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