Jahangiri v Allianz Australia Insurance Limited
[2025] NSWPICMP 74
•10 February 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Jahangiri v Allianz Australia Insurance Limited [2025] NSWPICMP 74 |
CLAIMANT: | Mohsen Jahangiri |
INSURER: | Allianz Insurance Australia Limited |
REVIEW PANEL | |
MEMBER: | Alexander Bolton |
MEDICAL ASSESSOR: | Christopher Oates |
MEDICAL ASSESSOR: | Leslie Barnsley |
DATE OF DECISION: | 10 February 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Review all certificate and reasons of Medical Assessor (MA) Wong dated 29 April 2024 who found the claimant had a whole person impairment (WPI) of 4% and when combined with an assessment of MA Curtin of 1% WPI gave a combined WPI certificate of 5%; claimant injured in head-on collision on 5 February 2022 while the insured car was being pursued by the police; the claimant injured his cervical spine, lumbar spine, left shoulder, with [TO1] undisplaced right inferior pubic ramus fracture and an open fracture of his left medial patella; the evidence verified an expected, sudden and forceful impact; Panel satisfied that the injuries suffered by the claimant were causally related to the accident; Held – the Panel revoked the certificate of MA Wong and found a total 10% WPI which combined with the certificate of MA Curtin of 1% gave a total WPI of 11%. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Wong dated 29 April 2024. 2. The Review Panel finds that the following injuries caused by the accident and assessed by the Review Panel give rise to a total permanent impairment of 10%; (a) cervical spine – strain – 0% whole person impairment (WPI); (b) lumbar spine – strain – 5% WPI; (c) left shoulder – contusion – 2% WPI; (d) pelvis – undisplaced right inferior pubic ramus fracture – 0% WPI, and (e) left knee – open fracture medial patella – 3% WPI. 3. The Review Panel revokes the combined certificate dated 8 May 2024 and issues a new combined certificate determining that the following injuries caused by the motor accident give rise to a WPI assessment of 11%: (a) certificate of this Review Panel at 10% WPI, and (b) certificate of Medical Assessor Curtin dated 8 May 2024 for assessment of scarring to the claimant arising out of the accident at 1% WPI. 4. Using the Combined Values chart at page 322 of the American Medical Association Guides to the Evaluation of Permanent Impairment , 4th Edition, the combined impairment is 11%. |
STATEMENT OF REASONS
Mohsen Jahangiri (the claimant) seeks a review of the combined medical certificate of Medical Assessor Curtin dated 8 May 2024. However, the review is only directed to a review of the medical certificate of Medical Assessor Wong (the Medical Assessor) dated 29 April 2024, in accordance with s 7.26 of the Motor Accident Injuries Act 2017 (the Act).
The following injuries were referred by the Personal Injury Commission (the Commission) for assessment by the Medical Assessor:
(a) cervical spine – neck injury;
(b) lumbar spine – lower back injury;
(c) shoulder – injury to the left shoulder;
(d) hand – left hand injury (wrist and radius injury) and abrasions and cuts from the glass;
(e) pelvis – un-displaced fracture in rami pubic area;
(f) knee – avulsion from the medial side of the patella, as well as laceration over the anterior aspect of the left knee which required debridement and surgery for bone fragment removal, and
(g) foot – left foot injury – contusion resulting from the impact collision.
The Medical Assessor made a finding of 4 % whole permanent impairment ((WPI) in respect of:
(a) cervical spine – strain – 0% WPI
(b) lumbar spine – strain – 0% WPI
(c) left shoulder – contusion – 2% WPI
(d) pelvis – undisplaced right inferior pubic ramus fracture – 0% WPI
(e) left knee – open fracture medial patella – 2% WPI
The following injuries referred to the Medical Assessor for assessment were assessed and determined not to be caused by the motor accident the subject of this assessment:
(a) left foot injury, and
(b) left hand injury (wrist and radius injury).
Medical Assessor Curtin assessed 1% WPI for skin scarring.
The combined WPI in the combined certificate was 5%.
Bundles of documents
The parties have each presented their respective bundles of documents upon which they rely. The Review Panel (Panel) have 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, in much the same manner as parties not referring to or not specifically relying on 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 and nor is it required that each piece of evidence be mentioned – see WAEE v Minister for Immigration and Citizenship (2003) 75 ALO 630 at [46].The Panel is not required to “analyse every piece of information from every opinion contained in a document with which he [it] was provided” – see Farr v Insurance Australia Limited t/as NRMA Insurance Ltd [2014] NSWSC 1435 at [46]. The Panel has come to its own conclusion and has taken its own history.
The accident
On 5 February 2022, Mr Jahangiri was a driver of a 4WD Jeep, on his way to work. A collision occurred when his vehicle was hit on his passenger side, by an oncoming car which crossed to his side of the road.
The claimant’s car spun around and was damaged by the impact.
The claimant reported that at the time of the impact, his body was thrown forwards off his car seat. He was restrained by his seatbelt. Air bags were deployed.
The claimant said his left knee was not protected. It hit the dashboard.
The impact broke his front passenger car seat which then hit his left shoulder.
The collision was sudden and unexpected with the claimant being confronted by the insured driver, attempting to evade chasing police, driving on the incorrect side of the road with multiple collisions occurring.
Claimant’s submissions
The claimant submits that the Medical Assessor’s errors result from the failure to apply and adhere to the Motor Accident Guidelines (the Guidelines) when assessing the claimant, by using the incorrect methodology when evaluating the claimant’s whole person impairment in relation to his left knee, and spine injury in particular.
The claimant submits that the Medical Assessor erred in methodology and reasoning by failing to fully adhere to the American Medical Association Guides to Permanent Impairment – fourth edition (AMA 4).
The claimant submits that the Medical Assessor assessed the claimant to have sustained a left knee open fracture medial patella. The claimant says that while the Medical Assessor correctly assessed 2% WPI in accordance with AMA 4, the Medical Assessor failed to complete assessment of the left lower extremity, notwithstanding the evidence before him. The claimant submits that the correct and most appropriate assessment of the left knee impairments should have been also performed in accordance with the provisions of Table 64 of AMA 4 which the claimant submits the Medical Assessor omitted.
The claimant submits that the Medical Assessor accepted that he suffered an open patellar fracture of the right knee, in the accident. The claimant noted that the Medical Assessor said that he had an opportunity to view a videoclip of the accident and photos his damaged vehicle provided, concluding that he had no reason to disagree with the radiological evidence of his injuries as provided. The Panel has viewed this evidence.
The claimant referred to a joint medico-legal report of Dr Rosenthal, dated 9 May 2024. This report was not available before the assessment by the Medical Assessor. Dr Rosenthal said that in addition to the crepitus finding, the left knee extremity should be appropriately assessed under the AMA 4 as “A patellar fracture undisplaced, healed, receives 3% whole person impairment.”
The claimant also relies on a report of Dr Bodel of 5 April 2023 who also determined an impairment assessment in relation to the patellar fracture and subsequent restriction of the range of motion of the knee.
The claimant says that Table 64 of AMA 4, shows that a displaced fracture, with a surface displacement of more than 3mm warrants a finding of 5% WPI, whereas a displaced fracture with non-union healing – which is the case with the injured claimant as shown in the regional bone scan report dated 16 November 2022, attracts a finding of 7% WPI.
The claimant submits that the Medical Assessor erred in not relying on the totality of the evidence and the injuries before him when assessing the left knee injury.
The claimant submits that the correct assessment of the left knee injury, by otherwise using the Medical Assessor’s findings and evidence referenced by the Medical Assessor in accordance with the provisions of the Table 64 of the AMA 4, should have been 7% WPI plus an additional 2 % WPI for the crepitus impairment.
Lumbar spine assessment
The claimant says the Medical Assessor erred in methodology, clinical findings recording, review of the contemporaneous medical evidence and reasoning before him.
The claimant says with respect to the pre-existing lumbar spine the Medical Assessor found as follows:
“He had a history of lower back pain & lower lumbar disc prolapses in 2021, prior to the accident. However, its record was not clear and detailed enough for the calculation of a pre-existing impairment. Therefore, its existence was ignored. (Clauses 6.31 - 6.33, MAPIG V.9.1).”
The claimant submits that from thereon, the Medical Assessor failed to properly assess the claimant by failing to realise the correlation between the AMA 4 and the Guidelines starting from clauses 6.125 onwards. The claimant says the Medical Assessor only utilised AMA 4, and based on the Medical Assessor’s reasons, it seems that the claimant’s lower back injury was assessed as no more than a muscular strain, or a diagnostic related estimate (DRE) Lumbosacral category I, which the claimant submits is incorrect.
The claimant says that the Medical Assessor failed to properly apply the thoracolumbar spine differentiation and arrive at the correct assessment, which should have been DRE Thoracolumbar category II: Minor Impairment .
The claimant notes that the preponderance of the contemporaneous clinical records before the Medical Assessor consistently record instances of significant lumbar spine pain, complaints and symptoms.
(a) Dr Bodel, reporting for the claimant on 4 April 2023, found the symptoms of pain, with asymmetry of movement and guarding but no clinical sign of radiculopathy and gave a 5% WPI rating.
(b) The claimant’s treating neurosurgeon, Dr Nandanchandran, in his report dated 22 December 2022, also observed lower back pain and tenderness, as well as asymmetrical movement and of the lumbar spine flexion.
(c) Dr Rosenthall who assessed the claimant as a part of a joint medico-legal assessment procedure and reported on 9 May 2024, also noted the asymmetry of movement in his clinical findings observing that:
“In regards to his lumbar spine, there was tenderness around L1 and also L5. There was significant tenderness over his right L5 region and right sacroiliac joint. Back movements revealed no muscle spasm or guarding but there was asymmetry with flexion reduced by one-quarter and extension reduced by half. Lateral flexion and rotation were reduced by one-quarter in all directions.”
The claimant submits that the Medical Assessor’s clinical findings are at complete contrast with the entirety of the medical evidence.
The claimant submits that the Medical Assessor’s assessment failed to provide complete assessment of all planes of motion in his assessment, thus providing a material incorrect assessment.
The claimant says that Dr Rosenthal, concluded that the lower back injury was related to the accident, as did the Medical Assessor, and he stated as follows:
“The sacroiliac joint symptoms flared up again following the accident and this appears to be related to the trauma caused by the subject accident. This is considered to be a new injury”.
Dr Rosenthal further differentiates the claimant’s presentation and clinical findings as accident-related saying:
“There was a re-injury of his right sacroiliac joint as a result of the accident. This is not natural progression nor an aggravation”.
The claimant submits that Dr Bodel and Dr Rosenthal and largely the Medical Assessor all agreed that the lower back injury was accident related, but where Dr Bodel and most recently Dr Rosenthal considered all of the clinical and radiological records in addition to the claimant’s presentation on the day of the assessment, the Medical Assessor appears to have disregarded the lumber spine MRI results, which as of 26 July 2022, had shown changes at L4/L5 and L5/S1 Levels potentially causing dural and neural irritation requiring epidural injection as diagnostic and therapeutic intervention.
The claimant says that having regard to the preponderance of the evidence, views of Dr Bodel, and more recently Dr Rosenthal, and the Medical Assessor’s own findings that the pre-existing impairment is to be ignored, it is submitted that it was not open to the Medical Assessor to dismiss the importance of the radiological evidence in the context of an accepted injury and the claimant’s symptoms and findings.
Submissions for WPI assessment
The claimant submitted the following physical injuries for assessment;
(a) cervical spine;
(b) left shoulder injury;
(c) left hand injury (wrist and radius injury) and abrasions and cuts from the glass;
(d) lower back injury;
(e) left foot injury;
(f) left knee injury – orthopaedic injury involving an avulsion from the medial side of the patella, as well as laceration over the anterior aspect of the left knee which required debridement and suturing of the knee. this has been reported as an unstable bipartite patella;
(g) skin – surgical scarring, and
(h) pelvis Injury including an un-displaced fracture in rami pubic area.
In the claimant’s submissions, reference is made to television video footage of the accident and photographs all taken post the accident which the claimant says shows the severity of the accident and its aftermath.
The claimant suffered generalised lower back pain in 2021. This was reported to the claimant’s general practitioner (GP). He was referred to predominantly conservative management, including physiotherapy. The claimant submits that the lower back symptoms did not cause him any difficulties in the period immediately preceding the accident of 5 February 2022. There had been no plans for specialist intervention, ongoing complaints or similar issues.
The claimant says that prior to the accident he was symptom free. He was active with fitness, gym and other active pastimes.
Insurers submissions on review
The insurer noted that the claimant was examined by the Medical Assessor on 17 April 2024, with a finding of 4% WPI as follows
(a) cervical spine – strain – 0% WPI;
(b) lumbar spine – strain – 0% WPI;
(c) left shoulder – contusion – 2% WPI;
(d) pelvis – undisplaced right inferior pubic ramus fracture – 0% WPI, and
(e) left knee – open fracture medial patella – 2% WPI.
The insurer has addressed the grounds of review raised by the claimant.
Ground 1: failure to adhere to the Guidelines and AMA 4
Left knee
The insurer noted that the Medical Assessor acknowledged the presence of a left knee open fracture medial patella and assessed 2% WPI based on clinical findings of pain and patella femoral crepitus, citing the AMA 4, 3.2e and 3.2g.
However, the insurer noted that the claimant contended that the Medical Assessor failed to complete a comprehensive assessment of the left lower extremity. The insurer referred to the claimant’s contention that the assessment should have included Table 64 from the AMA 4, which specifies criteria for fractures. In support, the claimant cited a report of Dr Rosenthal, dated 9 May 2024 which was not available during the Medical Assessor's assessment.
The insurer confirmed that the Medical Assessor determined 2% WPI based on crepitus, citing Table 62 from page 83 of the AMA 4. The insurer says that crepitus is categorised as an "examination criterion" as distinct from the patellar fracture which is a "diagnostic criterion".
The insurer says that AMA 4 provides that only one approach should be used to estimate impairment for each anatomical part. The insurer submits that the 3% WPI for the patellar fracture and the 2% WPI for crepitus should not be combined.
The insurer submits that the Medical Assessor correctly followed the Guidelines by separately assessing the impact of crepitus and adhering to the specific criteria laid out in the AMA 4.
The insurer says that the Medical Assessor's assessment of 2% WPI for the left knee injury, based on crepitus alone, was appropriate and consistent with the Guidelines.
Lumbar spine
The insurer referred to the claimant’s submission that the Medical Assessor's assessment did not adequately describe all necessary planes of motion.
The insurer says that the Medical Assessor, in his assessment said there was no dysmetria, and this is a conclusive explanation. The Medical assessor specifically cited assessments of flexion/extension and lateral flexion. The insurer referred to Table 6.8 of the Guidelines which says, “When assessing non-uniform loss of range of motion (dysmetria), medical assessors must include … two planes of motion for the lumbosacral spine (flexion/ extension and lateral flexion)”. The insurer submits that the Medical Assessor complied with this obligation.
The insurer submits that the Medical Assessor was not bound by the determinations or findings of Dr Rosenthal and Dr Bodel, and it was both permissible and mandatory for him to consider the evidence and to draw his own conclusion.
Insurers submissions for WPI assessment
The insurer made the following submissions in relation to each of the referred injuries.
Cervical spine
The ambulance report recorded that there was “nil c-spine tenderness”.
On 5 February 2022, the claimant underwent a CT scan which included his cervical spine. The scan revealed no evidence of any fractures, abnormalities or acute pathology.
The insurer submits that the lack of investigations and treatment indicate that the alleged cervical spine injury is unrelated to the subject accident.
Left shoulder
The claimant was referred for an ultrasound of his left shoulder. On 8 June 2022, his GP reviewed the scan and said that the result is “ok and good”.
The insurer says the claimant did not list his left shoulder as an injury in his Application for Personal Injury Benefits nor has he received a formal diagnosis from his treating doctors.
The insurer says that the lack of treatment and delay in investigations indicate that the alleged left shoulder injury is unrelated to the subject accident.
Left hand
On 5 February 2022, the claimant underwent an X-ray of his left hand and wrist which showed no evidence of fractures or abnormalities.
The insurer noted that Dr Bodel observed that:
“There is no restriction of elbow, wrist or hand movement. Grip strength is normal. There is no clinical sign of radiculopathy. There is no residual sign of restricted range of movement in the left wrist or right wrist. There is no median or ulnar nerve pathology and the reflexes are present and equal and there are no clinical signs of radiculopathy.”
The insurer submits that the evidence indicates that no impairment arises from the claimant’s alleged left hand injury.
Low back
The insurer says that the claimant has a longstanding history of back pain which precedes the accident. There is evidence of disc prolapses and radiculopathy.
The insurer refers to physiotherapist’s records which detail the following pre-accident history:
“Long term LBP for 8 years. 3 months ago did F45 and back was sore”.
On 24 May 2021, the claimant underwent a CT scan of his lumbar spine. The scan revealed evidence of disc prolapses at L4/5 and L5/S1 levels and radiculopathy on the right side of the L4/5 level.
An MRI of the lumbar spine dated 26 July 2022 revealed degenerative changes at L4/5 and L5/S1, which the insurer says are the same levels with issues that pre-date the accident.
The insurer submitted that the claimant’s lower back condition pre-dates the accident and evidence indicates that it is not causally related to the accident.
Left foot
The insurer says that there were no complaints regarding his left foot in the ambulance report or the hospital records. There is no record of any ongoing complaints relating to his left foot in his treating evidence.
The insurer says that the lack of complaints and investigations indicate that the alleged left foot injury is unrelated to the subject accident.
Left knee
The insurer says that on 5 February 2022, the claimant underwent an X-ray of his left knee which showed no evidence of fractures or abnormalities .
The insurer says that Dr Bodel found restriction in the claimant’s left knee, however, contemporary treating evidence reveals that the claimant has a full range of movement in his left knee.
On 10 July 2023, the claimant’s treating orthopaedic surgeon observed that he had a full range of movement in his knee and that there was no tenderness. He said:
“…He should be able to return to his full preinjury duties without restrictions. I have not organised further review”.
On 19 July 2023, the claimant’s physiotherapist recorded that he was progressing well in terms of left knee function. He recorded:
“Objectively, Mohsen has progressed to >1.5hours standing tolerance and has full pain free range of motion.”
The insurer says that contrary to Dr Bodel’s report, the contemporary treating evidence indicates that no impairment arises from the claimant’s alleged left knee injury as he has a full range of movement.
Pelvis
On 5 February 2022, the claimant underwent an X-ray of his pelvis and wrist which revealed no evidence of fractures or abnormalities.
The insurer noted that Dr Bodel reported that the claimant had a good range of hip movement with no tenderness or discomfort at the pelvis.
The insurer submits that the evidence indicates that nil impairment arises from the claimant’s alleged pelvis injury.
Medical evidence
An X-ray of his pelvis, sacroiliac joints and lumbosacral spine was done on 21 May 2021 prior to the motor vehicle accident.
The clinical notes indicate pre-accident back pain, tenderness at lumbosacral level and in the vicinity of the sacroiliac joints. Sclerosis of the sacroiliac joint margins was reported and narrowing the lumbosacral disc space was also reported.
On 24 May 2021 A CT scan was undertaken.
“Impression: L4/5 and L5/S1 intervertebral disc prolapses and right L4/5 radiculopathy.
Right SI joint bone islands. Grade 0 sacroiliitis.”
Following on from this, treatment records from Five Dock Physiotherapy noted that the claimant was treated for his back pain on 3 August 2021. His last completed treatment before the accident was on 2 September 2021. It was then recorded that the claimant’s lumbar spine range of motion was full with no pain.
Various certificates of capacity have been provided but these do not take the matter further.
A discharge summary from Royal Prince Alfred Hospital (RPA) confirmed that the claimant was diagnosed with a soft tissue injury to his left knee and with a laceration. A small cortical defect in the superomedial aspect of the patella was found during the initial surgery at RPA. An initial X-ray of the left knee noted no acute fracture had been identified.
A CT scan of the pelvis while the claimant was at the RPA noted “…there is a lucency extending through the posterior aspect of the right inferior pubic ramus compatible with non-displaced fracture. No other pelvic bone fracture is identified. The hip joint alignments are congruent. No pubic symphysis or sacroiliac joint diastasis.”
It was recorded that the claimant had an injury to his left wrist and hand but X-rays were reported as normal apart from some small foreign bodies in soft tissue.
An MRI of the lumbar spine was undertaken on 6 June 2022. Disc dehydration was reported at T12/L1, L4/5 and L5/S1.
“Conclusion: Degenerative disc disease particularly L4/5 and L5/S1 potentially causing dural and neural irritation. If there is a failure to improve despite conservative therapy, an epidural injection could be considered as both a diagnostic and potentially a therapeutic procedure.”
On 6 June 2022 an MRI of the left knee reported “Intact cruciate and collateral ligaments. Intact menisci. Bipartite variant of the patella with suspected destabilisation of the synchondrosis. Mild prepatellar bursitis.”
Associate Professor (Dr) Horsley provided a report of 17 November 2022. He recorded the claimant’s anterior knee pain with non-union of a fragment of bone on the medial side of the patella. Surgical removal was recommended.
A bone scan on 16 November 2022 noted “focal increased vascularity and delayed osseoblastic activity at the medial aspect of the left patella. Appearances are in keeping with a non-united healing fracture rather than bipartite patella.”
An operation report by Dr Horsley dated 21 April 2023 confirmed “Operation performed: Removal of bone medial aspect of left patella.” A good recovery was noted.
On 19 December 2023 Dr Horsley provided a further report and noting the left knee injury was a laceration and avulsion fracture from the medial side of the patella. He indicated no further treatment was required to the left knee and with no restrictions.
Dr Horsley assessed 0% WPI.
Dr Nandanchandran, neurologist, treated the claimant and provided a report of 22 December 2022. Regarding his report, the Medical Assessor said that his working diagnoses were not supported by the medical imaging’s he ordered.
Dr Bodel provided a medico-legal report for the claimant dated 4 April 2023. Dr Bodel found injuries to the claimant’s neck, back, left patella, inferior pubic ramus, left shoulder, contusions to left wrist and grazes and cuts elsewhere. It was also recorded that the claimant had a painful restriction of his knee.
Dr Bodel said that the claimant was not likely to return to his full pre-injury work capacity. He assessed 19% WPI, finding impairment calculated as follows:
“He has a DRE Cervicothoracic Category II level of assessable impairment in accordance with the description in Table 73 on Page 3/110 of AMA4. He has asymmetry of movement and guarding but no clinical sign of radiculopathy and a 5% Whole Person Impairment rating.
He also has asymmetry of movement and guarding but no clinical sign of radiculopathy and a 5% Whole Person Impairment rating.
He also has a DRE Lumbosacral Category II level of assessable impairment in accordance with the description in Table 72 on Page 3/110 of AMA4. There is asymmetry of movement and guarding but no clinical sign of radiculopathy and a 5% Whole Person Impairment rating.
The fracture of the pubic ramus in the pelvis does not attract a separate rating.
There is a rateable restriction of left shoulder movement. This is assessed using Figure 38 on Page 43, Figure 41 on Page 44 and Figure 44 on Page 45 of AMA4. The degree of recorded restriction of movement constitutes a 10% Upper Extremity Impairment which converts to a 6% Whole Person Impairment using Table 3 on Page 20 of AMA4.
In the Left Lower Extremity, there is the -5 degrees of knee extension, which attracts a 4% Whole Person Impairment in accordance with Table 41 on Page 78 of AMA4.
I rate the scarring collectively as a 1% Whole Person Impairment under the TEMSKI scale as the scars are mildly pigmented in some areas, particularly the scar over the knee but there is no tethering to underlying deep structures.
The five individual ratings are combined using the Combined Values Chart on Page 322 of AMA4:
- 6% WPI for the Left Upper Extremity
- 5% WPI for the cervicothoracic spine
- 5% WPI for the lumbosacral spine
- 4% WPI for the Left Lower Extremity
- 1% WPI for the scarring
There is a total of 19% Whole Person Impairment overall”.
Dr Rosenthal prepared a joint report dated 9 May 2024 for the parties, He reported the claimant had pre-existing back pain and apparently had a scan done in 2021 of his lumbar spine. He was getting back pain from gym exercises, and he had some physiotherapy to treat it. The claimant said this back pain had settled prior to the motor vehicle accident.
Dr Rosenthal said the avulsion fracture of the patella was confirmed by Dr Horsley. The claimant had immediate left knee symptoms following the accident and had a significant laceration. Abnormalities of the patella were noted at the original surgery in hospital. Dr Rosenthal said that the trauma to the left knee was solely caused by the motor vehicle accident and the reported fractured patella was causally related to the accident.
The insurer enquired about variable radiology reports and conclusions. Dr Rosenthal said that issues with variable radiology reports were operator dependent. He said that in a lot of cases variability can occur in reported findings from different radiologists. In this case however, the surgery performed by Dr Horsley confirmed the left knee injury and that there was clearly a traumatic event to the left knee that had occurred in the accident. Dr Rosenthal said that there was no evidence of any pre-existing left knee condition.
Regarding WPI, this was assessed by Dr Rosenthal at 13% as follows:
“Impairment is found in regard to his lumbosacral spine, left knee, left shoulder and scarring.
The lumbosacral spine is assessed under Table 72, page 110 (AMA Guides 4th Ed). He has asymmetry of lumbar movement which is DRE II and he gets 5% whole person impairment.
The left knee is assessed under Table 64. A patellar fracture undisplaced, healed, receives 3% whole person impairment. There is also impairment under the footnote of Table 62. A history of direct trauma, patellofemoral pain and crepitation on physical examination results in 2% whole person impairment. These impairments can be combined.
The left shoulder is assessed under Figures 38, 41 and 44:
3% upper extremity impairment converts to 2% whole person impairment.
Scarring is assessed under the TEMSKI table. Using the best fit principle, he gets 1% whole person impairment.
The total whole person impairment is 13%”.
The Medical Assessor provided his certificate dated 29 April 2024. He assessed WPI at 4% as follows;
Body Part or System
AMA4 Guides/ Guidelines References
(chapter/ page/table)
Permanent (YES/NO)
Current
%WPI*
%WPI* from pre-existing OR
subsequent causes
%WPI* due to motor accident
1
Cervical spine – strain
Chapter 3.3h, pp.103,104,108,
110; T. 70, 73.
Yes
0
0
0
2
Lumbar spine – strain
Chapter 3.3g; pp 101, 102, 108,110;
T.70, 72.
Yes
0
0
0
3
Left shoulder – contusion
Chapter 3.1j, pp 41-45; figs.38-44
Yes
2
0
2
4
Pelvis – undisplaced pubic ramus fracture
Chapter 3.2i, p.85, T.64; Chapter 3.4,
p. 131.
Yes
0%
0%
0%
5
Left knee – small open patellar fracture
Chapter 3.2e, p.78;
T. 41; Chapter 3.2g, p.83; T.62
footnote.
Yes
2
0
2
The Medical Assessor noted that the claimant confirmed that he had no left foot injury at the time of the accident. Also, no acute injury was identified to the claimant’s left hand and wrist.
Claimant’s statement
The claimant has provided a statement dated 12 January 2023. The claimant confirmed that after the accident his abdomen, wrists, neck, back and hips were hurting severely, and he was bleeding profusely.
The claimant attached to his statement, a number of photographs taken of his car, after the accident at various times. These follow.
[IMAGE UNABLE TO RENDER]
[IMAGE UNABLE TO RENDER]
[IMAGE UNABLE TO RENDER]
Without scientific observation, it is nevertheless evident from the photographs that the impact of this collision was forceful.
Medical examination
The claimant was medically examined by Medical Assessor Oates on 2 December 2024. His report follows.
“Details of who attended the Assessment
Mr Jahangiri attended and was assessed unaccompanied at the PIC Medical Suites on 2/12/2024 by Medical Assessor Oates on behalf of the Panel as arranged.
HISTORY
Pre-accident medical history and relevant personal details
Mr Jahangiri told me he is 43 and is right-handed. He is married and his wife works full-time. They have a son aged four.
He came from Iran in 2010. He was a manager of a wedding reception functions company in Iran.
After coming to Australia, he did a cookery course and got a job as a chef in a café at Leichhardt and then became the working manager, still doing some cooking as well as administrative tasks, working 50 hours per week.
Before the accident he was active in sports, playing basketball and going to the gymnasium.
In 2005, he had an incident at basketball when he jumped up to shoot for a goal and fell. He developed low back pain. He had no leg pain. He had some physiotherapy. He lost no time from work. He settled down after a couple of months and returned to sports and gym.
He had a similar episode of back pain in 2017, which he thinks may have been from gym exercises.
I asked him about a GP record from May 2021, referring to a two-week history of right-sided low back pain. The claimant said there was no leg pain and no incident of injury. He had an x-ray of lumbar spine and pelvis on 21/5/2021 showing right sacroiliac joint sclerosis. There was a query of Reiter’s syndrome, but Mr Jahangiri told me there was no history of arthritic joints elsewhere in the body. He didn’t have any blood tests done.
He had a CT scan on 24/5/2021 showing a right L4/5 disc herniation impacting the right L5 nerve root.
In August 2021, he saw Davis Ng, physiotherapist, Five Dock for treatment of low back pain. The physiotherapist’s pictogram shows no leg involvement. There is mention of his son, who was 10 months old at the time, weighing 10kg, producing a lot of extra carrying and bending for Mr Jahangiri. He had physiotherapy for two months and his back settled, and he was asymptomatic at the date of the subject accident.
He was working at this time as a chef and café manager 50 hours per week.
He has had no operations or serious illnesses in the past.
History of the motor accident
The claimant said on 5/2/2022, he was travelling in a Jeep 4WD with no passengers. He had a seatbelt on. He was heading west on Parramatta Road to go to work, traveling under the speed limit of 60kph, when an oncoming vehicle, which was evidently being pursued by a police car, came onto his side of the road at high speed and there was a head-on collision. The oncoming car's speed was estimated at 100kph.
The airbags deployed. The oncoming car hit another car and there were six vehicles involved in all. There was extensive damage to his vehicle. He was dazed for a few seconds after the impact and then released his seatbelt and self-extricated through the driver’s door. He felt fortunate to be in a strongly built car.
He hit his left shoulder against the passenger seat, which was knocked loose by the impact. He felt immediate left-sided neck and trapezial pain when the shoulder struck the passenger seat. His windscreen broke and there were lacerations (from broken glass) to the inner left forearm and to the anterior left patellar area, which may have hit the dashboard. He felt pain in the left neck, left trapezius to the left shoulder, left knee and stiffness in the lower back.
The police and ambulance attended. His car was towed and written off. He was taken by ambulance to RPAH.
I note the Claim Form indicated an open injury to the left knee with bruise, abrasion and laceration to left hand and bruise to lower back and fracture of right hip.
The ambulance record referred to obvious deformity of left wrist, complaint of pain in the pelvis and left wrist, and a deep laceration greater than 2cm over the left knee. He was transported in a neck collar on a spine board.
The hospital notes refer to x-ray of the left knee and pelvis, and CT trauma pan scan showing a non-displaced right inferior pubic ramus fracture. The records indicate no cervical spine or back tenderness. He underwent a laparoscopy showing a 2cm transverse laceration through the bursa to the patella, with a small cortical defect in the superomedial aspect of the patella.
After discharge, he saw the orthopaedic outpatients at RPAH and was told the pubic ramus fracture would heal by itself.
History of symptoms and treatment following the motor accident
He saw the GP on 13/2/2022 for dressing changes to the left knee and left forearm. He was referred to an orthopaedic surgeon, but had one outpatient appointment only.
He was off work for a few months and received workers compensation benefits. He had physiotherapy to the left knee and the lower back.
Pain in the back was in the mid-line lower back, radiating to the right side, through the buttock to the right hamstring, but not below the level of the knee. The GP prescribed Lyrica (pregabalin) 75mg at night or one twice daily, depending on severity of pain.
He continued to have physiotherapy once a week with treatment to the back for strengthening. He also had left shoulder pain, which he says he reported, and had an ultrasound scan of the left shoulder on 6/6/2022 showing bursitis and impingement syndrome. He mentioned the shoulder to the physiotherapist but was told that his back and left knee took priority, so the shoulder was not treated.
He mentioned the shoulder to the insurer but no action was taken to cover this injury apparently. He paid for some chiropractic visits himself to have his shoulder looked at and there was temporary relief from treatment but he could not afford to keep going.
He had a progress MRI scan of the left knee on 14/7/2022, which reported a bipartite variant of the patella.
An MRI scan lumbar spine on 26/7/2022 showed L5/S1 disc dehydration with minor disc bulge, more obvious to the right side, with annular tear in the foramen, abutting the exiting L5 nerve root without definite neural impingement.
He changed his GP from Dr Tabba to Dr Vinchenzo, when Dr Tabba left the practice.
He indicated Dr Vinchenzo looked into his problems further and he was referred to Professor Horsley, whom he saw on 10/11/2022. This orthopaedic surgeon diagnosed a patellar avulsion rather than a bipartite patella, caused by a direct blow to the medial side of the left knee.
An x-ray and bone scan done on 16/11/2022 showed appearances consistent with a non-united healing fracture of the medial aspect of the left patella, rather than bipartite patella. Professor Horsley proposed excision of the ununited bone fragment to relieve the left knee pain.
The GP also referred him to Dr Nadanachandran, neurosurgeon and spine surgeon, whom he saw on 22/12/2022. Doctor found no lower limb neurological deficits with lumbar flexion range of movement 50% of normal and full extension, with right paralumbar tenderness.
MRI scan showed mild disc bulge at L4/5 and L5/S1 annular tear. A bone scan was ordered. This showed uptake indicating right sacroiliac joint sclerosis which was non-specific, but no facet joint activity.
Dr Nadanachandran suggested he undergo a right sacroiliac joint injection, but he discussed this with the GP and a decision was made for him to do a course of exercise physiology first.
In the meantime, he had a repeat left shoulder ultrasound scan on 2/3/2023 showing the same findings as earlier, namely bursitis and shoulder impingement.
He started with an exercise physiologist (EP), Thomas Nicholas, at Rozelle and is still attending there once a week.
Prof Horsley removed the ununited bone fragment from the medial left patella on 21/4/2023. Removal of the bony fragment reduced the pain in the knee, but his knee is still stiff when he gets up from sitting on the ground playing with his four-year-old son.
Prof Horsley said he could be reviewed in future if required.
He says the exercise physiologist is helping with his back to some extent, but his knee is not improving any further with this treatment. He still gets sharp pain in the back at times, so is continuing with the EP.
He asked his GP for a second opinion, as the EP is not settling his back condition, and he was referred to Professor Noel Dan, neurosurgeon, Edgecliff whom he saw in late June 2024. He ordered an x-ray of lumbar spine and MRI scan lumbar with gadolinium, performed on 3/7/2024. There was no report but I viewed the films and there was no obvious disc protrusion seen.
Prof Dan recommended against operation or spine injection, but advised him to lose weight and continue exercising.
The claimant told me that pre-accident he was 89-90kg and after the accident, he increased to 97kg because of enforced inactivity because of ongoing back pain.
His GP recently prescribed him Ozempic injections three months ago and so far he has lost 4kg.
Details of any injuries or conditions sustained since the motor accident
Nil relevant.
Current symptoms
He has no pain at rest in the neck and left shoulder unless he rolls onto his left side in bed at night and left shoulder and trapezial discomfort wake him. Pain will be 6-7/10 when he elevates his arm in abduction at the left shoulder. There are no hand or distal arm symptoms.
However, the main problem is his back, which has constant pain, at its worst 6/10, and increased when sitting or prolonged standing, bending, lifting or squatting to 9/10. The pain radiates to the right buttock and top of the posterior right thigh, but no further distally. There is no paraesthesia in the lower limbs.
The left knee is stiff when he gets up from a sitting position.
He has to sit down to put shoes and socks on. He has not been able to return to sports or the gym.
He is only working 18 hours a week on restricted duties and doing mostly administrative tasks, but no cooking. The café has employed a cook. He will do the ordering of food and take orders from customers. Because he has not been able to return to his normal duties, he thinks he may have to change jobs in the future.
He lives in an apartment, so doesn’t have any yard work to do.
His confidence is reduced because of his ongoing back pain and when he and his wife have discussed having another child, he has told her he is uncertain if he could handle the extra physical tasks involved with raising another baby.
Current and proposed treatment
He attends the exercise physiologist once a week. He walks in a swimming pool but can’t do any other sports or return to the gym.
He takes Lyrica on an as needs basis about three times a week. He does home exercises. He is having Ozempic injections.
CLINICAL EXAMINATION
General presentation
He was of proportionate solid build with height 177cm and weight 94.3kg.
He sat in some discomfort and transferred with some discomfort out of a chair and on and off the couch.
He was able to walk on the heels and toes and there was no limp. Squatting was limited to some extent by left knee discomfort.
Cervical spine (cervicothoracic)
There was tenderness in the left upper trapezius and left side at the base on the neck in the paraspinal muscles. There was also tenderness over the lateral apex of the left shoulder. There was no muscle guarding about the cervical spine.
Flexion and extension were full range. Lateral flexion and rotation were full range to the left and right with complaint of trapezial tightness and discomfort at the end of lateral flexion and rotation to the right.
Reflexes, power and sensation in the upper limbs were normal. There were no non-verifiable radicular complaints.
Girth of upper arms; right 31cm, left 31cm measured at 5cm above the elbow.
Girth of forearms; right 29.5cm, left 29cm at 5cm below the elbow, which was consistent with stated right-hand dominance.
Thoracic spine (thoracolumbar)
There was no guarding and no tenderness. Sensation was intact over the trunk. Thoracic rotation was full range bilaterally.
Lumbar spine (lumbosacral)
There was no guarding. There was tenderness in the lower back, over the right sacroiliac joint area. There was no tenderness over the greater trochanters of either hip.
Flexion was three-quarters of normal, extension one half normal, lateral flexion was three-quarters of normal bilaterally. There were no non-verifiable radicular complaints to the lower extremities.
Reflexes were normal with plantar responses both flexor. Power and sensation in the lower limbs were normal.
Sitting straight leg raising was negative. Supine straight leg raising was negative on the left side at 60° and on the right side at 60° there was complaint of right lower back pain but no radiating symptoms to the lower extremity, which represents a negative nerve stretch test.
Thigh girth; right 53cm, left 54cm at 10cm above the superior patellar pole.
Calf girth; right 40.5cm, left 39.5cm at maximal circumference, that is 13cm below the inferior patellar pole.
There was no pubic bone tenderness. There was no complaint of anterior pelvic pain on bimanual springing of the pelvis, although this manoeuvre did cause complaint of right sacroiliac area discomfort.
Upper extremity
The right shoulder showed full range of movement in flexion, extension, abduction, adduction, external and internal rotation.
Left shoulder movement was measured with a goniometer as there was some restriction of range of movement.
Abduction 160°, adduction 40°, flexion 160°, extension 50°, internal rotation 50°, external rotation 70°.
There was full range of movement of the elbows, wrists and hands.
There was some scarring on the left hand and forearm from broken glass lacerations.
Lower extremity
There was full range of movement of both hips.
There was a transverse healed scar in the anterior aspect of the left patella. There was tenderness over the medial aspect of the left patella.
There was a full range of movement of both hips in flexion, extension, abduction, adduction, internal and external rotation.
The right knee had no pain or crepitus on patellofemoral compression.
The left knee had medial pain to palpation but there was no reproducible crepitus sufficient to convince me that Table 62 footnote is applicable. I note that although an x-ray of the left knee showed normal medial and lateral compartments, there was no reference to the patellofemoral compartment, which most likely would not have been normal with some loss of joint space cartilage interval, considering the position of the patellar fracture.
Active ROM
RIGHT
Active ROM
LEFT
Flexion
120°
120°
Extension
0°
0°
Both knee joints were stable in anteroposterior and mediolateral directions.
There was full range of movement of both ankles and feet in dorsiflexion, plantar flexion, inversion and eversion.
Comments on consistency
The claimant presented in a genuine consistent manner.
IMAGING
There was an x-ray of left knee dated 16/11/2022 brought to the assessment, and the report is attached to this medical report.
DETERMINATIONS
Diagnosis, causation and reasons
The diagnosis is avulsion fracture of medial aspect of left patella at the knee, with overlying laceration making this a compound fracture.
There were also soft tissue injuries to the left shoulder and cervical spine, and a soft tissue injury to the lumbar spine.
Additionally, there was an undisplaced fracture of the right inferior pubic ramus at the pelvis.
There were lacerations and abrasions to the left wrist and forearm.
There was no evidence of bruising injury to the left foot.
Based on the history given and the evidence available in the file, I find the accident was a cause of injury to the cervical spine, left hand and forearm, left knee, lumbar spine, pelvis and left shoulder.
There is a history of pre-existing chronic recurrent lumbar spine symptoms, but no evidence that the lumbar spine was symptomatic at the time of the accident, and there was insufficient evidence to ascribe a pre-accident permanent impairment rating to the lumbar spine greater than DRE I or 0% whole person impairment.
PERMANENT IMPAIRMENT
Cervical spine
At the cervical spine, there was no dysmetria, no guarding, no non-verifiable radicular complaints and no radiculopathy. Symptoms continue and this is a differentiator for DRE Cervicothoracic Category I giving 0% whole person impairment.
Reference: Table 73, page 110, AMA4.
Lumbar spine
At the lumbar spine, there was dysmetria of flexion and extension, and this is a differentiator for DRE Lumbosacral Category II giving 5% whole person impairment.
Reference: Table 72, page 110, AMA4.
Left shoulder
At the left shoulder, there is reproducible loss of active range of motion which forms the basis for assessing a permanent impairment.
Abduction 160° gives 1% upper extremity impairment, flexion 160° gives 1% and internal rotation 50° gives 2%. Adding these gives 4% upper extremity impairment, equivalent to 2% whole person impairment.
Reference: AMA4, Chapter 3, Figure 38, 41 & 44, page 43 – 45 and Table 3, page 20.
Pelvis
The undisplaced right inferior pubic ramus fracture has healed, resulting in 0% permanent impairment.
Left knee
Compound fracture medial patella. From Table 64, page 85 AMA4, there is a 3% whole person impairment arising from an undisplaced healed patellar fracture.
As mentioned above, I did not consider there was evidence sufficient to justify an additional 2% whole person impairment from Table 62, arthritis footnote. I have given reasons above.
Other injuries
There is no assessable permanent impairment from the left hand from loss of range of movement, and scarring at the left distal forearm and left knee is assessed by another medical assessor.
There was no evidence of injury to the left foot.
As mentioned above, there was no indication for making a deduction for a pre-existing symptomatic permanent impairment for the lumbar spine.
Combined impairment
Combining 5% by 3% by 2% gives 10% whole person impairment.
When this is combined with 1% whole person impairment assessed by Assessor Curtin for scarring, there is a combined total assessment of 11% whole person impairment.”
The Panel adopts the findings and report of Medical Assessor Oates.
Causation/reasons
The accident in which the claimant was involved was unexpected, sudden and forceful, with the claimant being confronted by the insured car travelling on the incorrect side of the road, at speed, and directly facing him. The insured driver was attempting to evade police.
Photographs of the claimant’s car taken after the accident, evidence considerable damage, after the claimant had come to an immediate stop on impact.
The Guidelines identify the test for causation in cls 6.6 and 6.7.[1]
[1] Causation is defined in the Glossary at page 316 of the AMA 4. It is in the same terms as Clause 6.6 of the Guidelines.
Clause 6.6 provides:
“Causation means that a physical, chemical or biologic 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:
(a) The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
(b) The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.”
Clause 6.7 provides:
“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.”
In Ackling v QBE Insurance (Aust) Ltd,[2] Johnson J indicated that the task of a review panel in assessing whether an injury was caused by the relevant accident is "a practical one". His Honour also observed that a review Panel will derive practical assistance from the Guidelines when undertaking the task of assessing causation.[3]
[2] [2009] 75 NSWLR 482; [2009] NSWSC 881.
[3] At [87]. Justice Johnson was then referring to the predecessors to clauses 6.5-6.7 of the Guidelines, being clauses 1.7-1.9 of the Permanent Impairment Guidelines.
Section 5D of the Civil Liability Act 2002 (CLA) also needs to be considered when assessing causation.
109.Section 5D of the CLA provides:
"General principles
(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm ('factual causation), and
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ('scope of liability')."
The Panel must ask itself whether the accident contributed to the claimant’s physical injuries as referred to it by the Commission. To this the Panel answers in the affirmative.
The Panel is satisfied that the accident and impact has had a more than negligible effect on the injuries suffered by the claimant.
The Panel is of the opinion that in the circumstances of the accident in which the claimant was involved, and for the reasons discussed in the medical examination report, it would be reasonable to accept on the balance of probabilities that he might suffer the injuries required to be considered and assessed by the Panel and including his cervical spine, lumbar spine, left shoulder, pelvis and left knee, and with some scarring.
Conclusion
The claimant was involved in sudden and unexpected accident from which he suffered injuries to his cervical spine, lumbar spine, left shoulder, pelvis and left knee.
The claimant has been assessed by the Panel, for the injuries referred to it as having a combined WPI assessment of 10%.
Determination
The Panel revokes the certificate of Medical Assessor Wong dated 29 April 2024.
The Panel finds that the following injuries caused by the accident and assessed by the Panel give rise to a total permanent impairment of 10%;
(a) cervical spine – strain – 0% WPI;
(b) lumbar spine – strain – 5% WPI;
(c) left shoulder – contusion – 2% WPI;
(d) pelvis – undisplaced right inferior pubic ramus fracture – 0% WPI, and
(e) left knee – open fracture medial patella – 3% WPI.
The Panel revokes the combined certificate dated 8 May 2024 and issues a new combined certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment assessment of 11%:
(a) certificate of this Panel at 10% WPI, and
(b) certificate of Medical Assessor Curtin dated 8 May 2024 for assessment of scarring to the claimant arising out of the accident at 1% WPI.
Using the Combined Values chart at page 322 of AMA 4, the combined impairment is 11%.
[TO1]Error here I think?
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