Jean v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPICMP 127
•27 February 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Jean v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 127 |
CLAIMANT: | Joseph Jean |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
REVIEW PANEL | |
MEMBER: | Jeremy Lum |
MEDICAL ASSESSOR: | Les Barnsley |
MEDICAL ASSESSOR: | Christopher Oates |
DATE OF DECISION: | 27 February 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; permanent impairment dispute; claimant assessed as cervical spine (5%) right shoulder (2%) resulting in 7% whole person impairment (WPI); shoulder movements were inconsistent and not reproducible; claimant could not explain the inconsistencies; restrictions also due to “golfer’s elbow” which was not a disputed injury and therefore the restriction could not be assessed; there was some impairment in the Review Panel’s view and impairment was assessed via analogy; mild crepitation of the acromioclavicular joint; Held – Medical Assessment Certificate confirmed. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel confirms the certificate of Medical Assessor Mohammed Assem dated |
STATEMENT OF REASONS
BACKGROUND
Joseph Jean (the claimant) was involved in a motor accident on 3 May 2022. He was driving on the M5 motorway when a truck side swiped his car, causing his car to spin and crash into the middle concrete barrier. As a result of the accident, he says he sustained injuries to his neck, right shoulder, chest, mid-back and lower back.
The claimant made a claim for personal injury benefits with NRMA (the insurer), the third-party insurer of the vehicle that he says caused the accident.
A medical dispute arose about whether the degree of the claimant’s whole person impairment (WPI) is greater than 10% WPI. If there is a dispute about the degree of a claimant’s WPI, damages for non-economic loss[1] cannot be awarded and disputes must be referred to a Medical Assessor/s for determination.
[1] See Division 4.3 of the MAI Act.
On 13 August 2024, Medical Assessor Mohammed Assem assessed the claimant’s injuries as having a WPI of 7% which results in a WPI of not greater than 10%.
The claimant lodged an application with the Personal Injury Commission (Commission) seeking a review of Medical Assessor Assem’s assessment.
On 2 October 2024, a delegate of the President accepted the application for review and referred the matter to this Review Panel (the Panel) to conduct the Review proceedings.
MEDICAL ASSESSMENT UNDER REVIEW
Medical Assessor Assem noted that all the injuries claimed by the claimant were documented by his general practitioner and treating physiotherapist and were therefore caused by the motor accident.
Medical Assessor Assem found that the injuries to the claimant’s thoracic spine, lumbar spine and chest contusion had resolved. The injuries to the cervical spine and right shoulder were diagnosed as soft tissue injuries and were caused by the motor accident.
It was noted that there had been some pre-existing condition, such as mild sciatica but there was no evidence to suggest these conditions contributed significantly to the injuries sustained in the motor accident. The improvements to the claimant’s back symptoms with physiotherapy suggests that the accident temporarily exacerbated the back issues, however the symptoms had largely resolved.
The cervical spine was assessed as DRE category II (5% WPI) due to asymmetry of motion.
The right shoulder range of motion was noted to be inconsistent on repeated testing and inconsistent with the range observed by other medical examiners. The Medical Assessor completed the assessment by way of analogy with the following reasons:
“Clinically, he would be expected [to] have a mild secondary restriction in right shoulder motion due to pain originating from his cervical spine and right shoulder bursitis.[2] As range of motion was not a valid or reliable method for assessing his level of impairment, an assessment was completed by way of analogy (MAA Guidelines, paragraphs 6.24, p 88) An analogous condition would be mild crepitations of the right AC joint, which gives 10% joint impairment (AMA4, Table 19, p59). This impairment is multiplied by 15% (AMA4, Table 18 p 58) to obtain 1.5% WPI, rounded to 2% WPI.”
[2] Reference is made to Nguyen v The Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd [2011] NSWSC 351 (3 May 2011).
Medical Assessor Assem tabulated his assessment of the claimant’s WPI 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 | AMA4, 3/104 | Yes | 5% | 0% | 5% |
| 2 | R) Shoulder | AMA4, Figure 38, 3/43; Figure 41, 3/44; Figure 44, 3/45 | Yes | 2% | 0% | 2% |
* %WPI = percentage whole person impairment
Medical Assessor Assem assessed the claimant’s total combined WPI as 7%.
ISSUES FOR DETERMINATION
Claimant’s submissions
The claimant’s original application submissions state that as a result of the injury caused by the motor accident, the claimant’s degree of permanent is greater than 10%.
The claimant’s review application submissions concern the Medical Assessor’s reasons for the impairment evaluation of the right shoulder – reproduced in paragraph 11 above. The claimant submits that the Medical Assessor failed to provide proper reasoning, explanation and/or an actual path of reasoning as to why he determined the right shoulder injury would be “a mild crepitation of the right AC joint”.
The claimant also submits that the Medical Assessor failed to give the claimant an opportunity to address the variability in range of shoulder motion observed at the assessment compared to what was documented by other medical examiners.
It is asserted that the consistency provisions of the Guidelines (cls 6.40 and 6.41) require the Medical Assessor to give reasons for modifying the impairment and to afford the claimant procedural fairness.
Insurer’s submissions
The insurer’s original reply submissions address each of the body parts claimed by the claimant as being injured in the motor accident.
For the cervical spine, right shoulder and the lumbar spine, the insurer relies on the opinions of Dr Bentivoglio and Dr Rimmer.
For the chest and thoracic spine, the insurer submits that the treating records and the radiology do not suggest any permanent impairment.
In the reply to the review application submissions, the insurer says the Medical Assessor clearly set out the pathway of reasoning. The insurer refers to the right shoulder ultrasound dated 8 June 2022 and the CT and MRI Arthrogram dated 30 November 2022 whose findings referred to “subacromial/subdeltoid bursitis or bursal inflammation”.
The insurer also refers to the Medical Assessor’s reasoning reproduced in paragraph 11 above highlighting that the reasoning with regard to mild secondary restriction, right shoulder bursitis and the assessment of the impairment by way of analogous condition.
With respect to the alleged denial of procedural fairness, the insurer says the claimant ignored pages 7 and 8 of the Certificate reasons where the Medical Assessor refers to questioning the claimant about the variation in shoulder motion and documenting the claimant’s response.
REVIEW OF THE EVIDENCE
General observations
On 2 October 2024, the Panel issued a direction to the parties requesting indexed and paginated bundles of the information they relied upon. The Panel advised that unless documents are uploaded to the Review file, the Panel would not be able to read and consider those documents. The parties responded with the claimant’s bundle comprising of pages 1-12 and the insurer’s 1-752.
On 9 December 2024, and upon enquiry by the Commission, the claimant advised that it also relied upon the original application bundle with pages 1-547.
The Panel has read the documentation relied upon by the parties. Given the voluminous nature of the material, the Panel will only specifically refer to material that is relevant to the resolution of the permanent impairment dispute and the issues in dispute.
Claim documents and treating reports
Certificate of Capacity of Dr Eugene Khoo dated 2 June 2022 – Diagnosed WAD with neck strain, R shoulder strain, chest contusion, mid back strain, low back strain and acute stress disorder.
Claim form dated 6 June 2022 – Completed by the claimant with injuries stated as “whiplash, shock, psychological, neck, right shoulder, chest, mid back, lower back, stress, fear of driving”.
Report of Dr David Lieu, orthopaedic surgeon, dated 10 February 2023 – Complaints of right shoulder impingement. No clicking, catching or locking, and not distal numbness or weakness. Clinically there was no wasting with tenderness in biceps region. 130º of forward elevation, internal rotation to L1 and 40º of external rotation with some weakness.
Report of Dr Balsam Darwish, neurosurgeon, dated 9 March 2023 – Examination revealed normal gait. Weakness of right shoulder abduction. Deep tendon reflexes symmetrically depressed.
Report of Dr David Lieu dated 5 May 2023 – Following cortisone injection range of motion improved and now has 140º of forward elevation, with internal rotation to L1 and 60º of external rotation.
Radiology
X-Ray Cervical Spine, Thoracic Spine & Lumbar Spine, Chest & Left Ribs, Right shoulder report dated 8 June 2022 –
Cervical spine: No definite evidence of compression fracture. Moderate degenerative changes at the intervertebral disc spaces at C3/C4, C4/C5, and C5/C6. Mild disc space changes at C6/C7. No definite evidence of compression fracture.
Thoracic spine: Mild upper thoracic kyphosis. Degenerative disc space changes. No acute compression fracture.
Lumbar spine: Facet joint degenerative changes most marked in lower lumbar spine and lumbosacral junction. Appears to be minor anterolisthesis of L4 and L5. No definite compression fracture is evident. Disc space narrowing is most marked at lumbosacral junction.
Chest and left ribs: Similar chest changes as previously present. No definite acute displaced left rib fracture.
Right shoulder: Mild degenerative changes at glenohumeral joint. Mild to moderate degenerative change at acromioclavicular joint. No fracture or dislocation.
Ultrasound right shoulder report dated 8 June 2022 – Tendinopathy of the supraspinatus and subscapularis tendon. Subacromial/subdeltoid bursitis with sonographic impingement.
MRI cervical spine report dated 1 December 2022 – Moderate discovertebral changes with mild cord compression particularly at C3-4 and C4-5. There is multilevel facet joint arthropathy with foraminal stenosis and root impingement as described.
CT Arthrogram and MR Arthrogram right shoulder report dated 1 December 2022 – AC joint arthropathy and subacromial-subdeltoid bursal inflammation. Partial-thickness articular surface supraspinatus tear with some focal high-grade components but no full-thickness perforation. Detached inferior labrum.
CT-Guided cervical nerve root injection – Performed by Dr Ganeshan on 24 April 2023. Eight milligrams of dexamethasone in 2 cc injected.
Medico-legal reports
Dr Stephen Rimmer, orthopaedic surgeon, report dated 1 June 2023 – Complaints of right sided neck pain. Cervical spine active range of motion was: forward flexion chin on chest, extension 45º, left and right lateral rotation 75º. No guarding, no documented neurological impairment.
Right shoulder active range of motion was flexion 160º, extension 50º, abduction 160º, adduction 40º, external rotation 80º and internal rotation 60º. Power of supraspinatus was 5/5 and pain-free. Negative impingement test. Tone, power, sensation and reflexes were all present and symmetrical.
It was noted that no investigations were before Dr Rimmer.
Found that the cervical spine and right shoulder injuries were causally related to the motor accident. Impairment evaluation was cervical spine 0% WPI (DRE I), right shoulder 2% WPI (based on range of motion).
Dr Peter Bentivoglio, neurosurgeon, reports dated 9 June 2023 and 4 July 2023 – Noted that diagnostic tests revealed pre-existing significant cervical spine degenerative disease that had become symptomatic because of the motor accident. Examination revealed decreased neck movement looking to the right and decreased right shoulder movement. Measurements were not provided for the shoulder movement with no impairment evaluation. Diagnosis was cervical brachialgia into the right arm but no radiculopathy and assessed at DRE category II or 5%.
Clinical notes – Elizabeth Drive Medical Centre
Dr Khoo entry dated 27 August 2020 – Sciatica mild. Niggling back pain. Has had this before. Now cannot sit for long. But has to sit for long hours for work. Attributes it to his chair at home that isn’t ergonomic. Will be getting a new chair. Denies cauda equina symptoms.
Dr Khoo entry dated 18 June 2021 – Low back pain with recurrence of R leg sciatica – leg feels heavy/numb to the top of the knee. For CT lumbar spine.
Dr Khoo entry dated 2 June 2022 – motor vehicle accident 30 May 2022. Symptoms: Neck discomfort; R shoulder/arm pain; L rib pain; Mid back pain; Low back pain. Examination: Neck global AROM reduced by 50% / neck tender/stiff on palpation, paraspinal spasm noted. Mid back tenderness/stiff on palpation. Rib compression – some L rib pain reproduced by nil bruising over the area. R shoulder AROM – painful arc abduction/flexion at 110deg, tender on palpation over shoulder / L shoulder AROM full low back – tender/stiff on palpation. Injury List: WAD with neck strain. R shoulder strain. Chest contusion. Mid back strain. Low back strain. Acute stress disorder.
Other Dr Khoo entries – consultation and treatment of injuries relating to motor accident dated 16 June 2022, 27 June 2022, 30 June 2022, 26 July 2022, 8 September 2022,
1 November 2022, 16 November 2022, 13 December 2022, 25 January 2023,
11 February 2023, 22 February 2023, 11 April 2023, and 16 May 2023.
PANEL RE-EXAMINATION REPORT
At the preliminary conference on 9 December 2024, the Panel determined that the claimant be re-examined. The re-examination report is as follows:
Details of who attended the Assessment
Mr Jean attended the appointment alone for re-assessment by Medical Assessor Oates on behalf of the Medical Review Panel at the PIC Medical Suites on 13 February 2025 as arranged.
HISTORY
Pre-accident medical history and relevant personal details
Mr Jean is right hand dominant.
He was a secondary school teacher and then School Principal in his native Mauritius, and migrated to Australia in 1987, working in various roles including at Centrelink as a Compliance Manager for 25 years, up until his date of retirement on 15/04/2022.
I asked him about a GP record of 12/08/2019 regarding a previous motor vehicle accident, but he said he couldn’t recall having any physical injuries. It was only a minor accident compared to the current one.
He does recall attending his GP on 27/08/2020 with mild sciatica and niggling back pain, and says it was due to prolonged sitting in a non-ergonomic chair at home, working from home during lockdowns on account of the pandemic. He had some physiotherapy and adjustments to his workstation.
He recalls the GP visit of 18/06/2021 when he had low back pain and right leg sciatica, with numbness in the right leg. A CT scan was recommended but he was not sure whether this took place. He does recall his back and leg symptoms settled down.
He doesn’t recall any previous injury or problems with the neck, chest, thoracic or shoulders. He has had no operation in the past and was on no regular medications, being of good general health.
History of the motor accident
Mr Jean said on 30/05/2022, just six weeks after his retirement, he was driving his 2013 Jeep with no passengers along the M5 Motorway from Bankstown to Prestons. He was in the middle lane of three lanes, when a truck travelling in the adjacent right lane changed into his lane and hit the right side of his vehicle. He was wearing a seatbelt. No airbags deployed. His car spun 180° and hit the concrete barrier down the middle of the carriageway.
He thinks he called the police or ambulance but they did not attend the scene. He had to force his driver’s door open but he was able to and then got out and exchanged details with the truck driver.
His vehicle was towed and the tow truck driver gave him a lift home, about 15 minutes away, and left the car on the driveway. It was written off.
He developed neck and right shoulder pain a few days later. He went to his GP, Dr Khoo, on 02/06/2022, four days after the accident.
At the time of the accident, he was living in a house with his wife. Their grown-up son had moved out. At the time, she was still working five hours a day in a local post office.
Before the accident he did the mowing, gardening and looked after his orange and mandarin fruit trees, and also did walking. He didn’t play sport. His wife did most of the internal housework, although he helped with washing the dishes.
History of symptoms and treatment following the motor accident
He saw his GP, Dr Khoo, Liverpool, for the first time on 02/06/2022 complaining of neck, right shoulder, left-sided chest and rib, thoracic and low back pain. He noticed the problems when he was gardening. He had some restriction in right shoulder abduction and flexion, and tenderness and discomfort with restricted neck movements and mid back tenderness, and was referred for physiotherapy and prescribed Panadol Osteo.
He says the physiotherapist treated the neck, upper back and right shoulder. The mild lower back discomfort and right chest pain largely resolved, but he had continuing problems with the neck and right shoulder.
He started physiotherapy on 04/07/2022. Physiotherapy provided transient relief, but he had ongoing problems with the neck and right shoulder area.
He was referred to Dr Liew, orthopaedic surgeon, regarding his right shoulder, whom he saw on 10/02/2023 and he reported pain radiating down the right arm as far as the wrist. There was tenderness over the biceps and flexion of the shoulder to 130° with some limitation in internal and external rotation, and minimal irritability of biceps and supraspinatus, and mild impingement. An MRI scan showed supraspinatus tendinopathy but no tear. There was also bursitis.
Conservative management was recommended. Cortisone injection gave temporary relief and he continued physiotherapy.
The injection on 27/02/2023 gave relief for about one week.
He had follow-up with Dr Liew on 05/05/2023, at which time he noted partial relief of the shoulder from the injection and of neck pain from two cortisone injections to the neck. He was advised continued physiotherapy and strengthening, as there was no surgical solution for his shoulder, and no further follow-up was arranged.
He was referred to Dr Darwish, neurosurgeon, regarding his neck, whom he saw on 09/03/2023. Doctor noted weakness in abduction of the right shoulder and symmetrically depressed reflexes in the upper limbs. An MRI scan cervical spine from 13/11/2022 showed C3/4, C4/5 and C5/6 disc protrusion with bilateral C4/5 and C5/6 foraminal stenosis with potential for compression of C5 and C6 nerve roots. Dr Darwish organised a CT-guided perineural cortisone injection.
On 26/04/2023, a right C5 perineural injection was done but Mr Jean could not recall if this injection had any effect. He later had a right C6 injection and again can’t recall any benefit.
Dr Darwish gave him cream to apply to the back of his neck. He continued to see Dr Darwish for follow-up and he suggested the possibility of surgery, but Mr Jean did not want to accept surgery because of the risks involved and the lack of guarantee of success. He preferred to live within his restrictions.
Details of any injury or condition sustained since the motor accident
He has had no further injuries or relative conditions develop. He says he just drives locally now.
Current symptoms
He still has neck discomfort at the base of the neck centrally, radiating to the adjacent right upper trapezius. When his head is still, he is quite comfortable, but the neck gets sore if he turns the head. He has difficulty with rotating and lateral flexing to the right because of discomfort at the base of the right side of the neck, and feels a cracking sensation there if he continues the movement.
Sleeping on his right side is uncomfortable and this wakes him up. There is no radiation of pain through to the upper extremity and no pins and needles in the upper extremity. There are no headaches.
Driving is limited because of tightness of head movement, so he has to use the mirrors and reversing camera instead.
Gardening for more than five minutes including digging, weeding and lifting causing pain in the right arm.
He had developed some right upper arm and medial right elbow pain, particularly noticed when he is doing pruning. He now has to pay someone to prune the fruit trees. The insurer pays for lawn mowing but not for pruning or weeding the garden.
His wife retired in May 2024. He still walks though has lost his motivation to do a lot of things because of emotional stress following the accident. His wife still does the bulk of the housework, although he will wash some dishes.
His back and chest settled down shortly after the accident, although he says his back does get a bit uncomfortable if he sits for prolonged periods.
Current and proposed treatment
The physiotherapist was stopped by the insurer after about a year of treatment, which gave temporary relief only.
He doesn’t need to take any medication, provided he stays within his own physical limits.
For his emotional health, he takes an anti-depressant whose name he cannot recall, 60mg in the morning, prescribed by Dr Verma, psychiatrist, with whom he no longer has contact.
The insurer still pays for him to see a psychologist, whom he does consult once a month. He sees his GP, Dr Khoo, for a third party certificate.
CLINICAL EXAMINATION
General presentation
He sat comfortably and could transfer freely out of a chair and on and off the couch. He appeared in no physical discomfort during the interview.
His height was 173cm and weight 93.9kg. He was of average to overweight build.
Cervical spine (cervicothoracic)
Cervical lordosis was preserved. There was no tenderness. There was no muscle guarding or spasm. No NVRC’s. (non-verifiable radicular complaints)
Flexion was full range and extension was one-half normal range. Lateral flexion was one-half normal to the left and one-third normal to the right. Rotation was two-thirds of normal to the left and one-third of normal to the right, with complaint of right-sided neck discomfort at the end of lateral flexion and rotation to the right.
Reflexes in the upper limbs were symmetrical, although of reduced amplitude. Power and sensation were normal.
Upper arm girth; right 30cm, left 31cm at 10cm above the elbow. Forearm girth; right equals left equals 27cm at 5cm below the elbow.
Neural tension sign was negative.
No radiculopathy present.
There was tenderness over the right medial epicondyle but not the lateral epicondyle. There was a positive provocative test for right medial epicondylitis.
Thoracic spine (thoracolumbar)
There was no tenderness, no muscle guarding or spasm. Rotation was symmetrical to three-quarters of normal in each direction. Other thoracic movements of flexion, extension and lateral flexion were symmetrically reduced by one-quarter of normal range. No NVRC’s.
Sensation over the trunk was intact. No radiculopathy present.
Lumbar spine (lumbosacral)
There was no tenderness to palpation, there was no muscle guarding or spasm. No NVRC’s.
Flexion and extension were three-quarters of normal range. Lateral flexion was two-thirds of normal bilaterally and rotation was three-quarters of normal bilaterally.
Supine straight leg raising was 60° on the right with tight hamstrings and negative stretch. Straight leg raising on the left was 70° with negative stretch.
Reflexes were symmetrical and plantar responses were both flexor. Power and sensation were normal in the lower limbs.
Thigh girth; right equals left equals 49cm at 10cm above the superior patellar pole. Calf girth; right 36cm, left 35cm at maximal circumference, which was 15cm below the inferior patellar pole.
No radiculopathy present.
Upper extremity
I explained to the claimant, Mr Jean, that it was very important that he showed his best effort when demonstrating active range of movement at the shoulders, and that I would be checking the movements three times to assess for consistency.
Impingement test was negative.
Active range of motion was measured with a goniometer. When assessing active range of movement in the right shoulder, he reported limitation of elevation of the right shoulder, predominantly from medial right elbow discomfort but not from the shoulder joint itself, and in other movements (adduction) there was some discomfort causing limitation reported variably at the right side of the neck or medial right elbow.
| Shoulder Movements | ||
| ACTIVE ROM RIGHT | ACTIVE ROM LEFT | |
| Flexion | 110°, 110°, 105° Limited by right medial elbow discomfort | 180° |
| Extension | 50°, 40°, 50° | 50° |
| Adduction | 30°, 30°, 20° Limited on different repetitions by right medial elbow pain | 40° |
| Abduction | 110°, 115°, 110° Limited by right medial elbow discomfort and adjacent medial forearm discomfort | 180° |
| Internal rotation | 70°, 70°, 70° | 80° |
| External rotation | 70°, 70°, 70° | 70° |
Elbows
There was a full range of movement in flexion, extension, pronation and supination bilaterally.
Comments on consistency
Mr Jean’s range of movement in the right shoulder was reasonably consistent today on repeated range of movement, but was less than that observed by other examiners historically. I note that he had been unable to explain the reason for this, but at this examination assured me he was making his best effort at examination today, within limits imposed by pain, and that the shoulder elevation particularly was limited on the right by medial right elbow pain, which is as yet an undiagnosed condition.
Mr Jean said he does not know if this elbow complaint is related to the motor vehicle accident, but he had noticed problems when using secateurs to attend to pruning of his fruit trees. He has not mentioned this to his doctor yet, so there have been no investigations, diagnosis or treatment.
RELEVANT LEGISLATION
Causation
Causation is dealt with at cls 6.5-6.7 of the Guidelines. An abridged form of the requirements is contained in cl 6.7 which states:
“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.”
Further, the provisions of the Civil Liability Act 2002 apply, in particular ss 5D and 5E.
Assessment of permanent impairment
The assessment of the degree of permanent impairment is to be made in accordance with the Motor Accident Guidelines (the Guidelines).[3]
[3] See section 7.21 of the MAI Act.
Version 9.3 of the Guidelines applies to the Review. Part 6 deals with the assessment of permanent impairment.
DETERMINATIONS
The review of the medical assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned.[4]
[4] Section 7.26(6) of the MAI Act.
The Panel may confirm the certificate of assessment or revoke that certificate and issue a new certificate as to the matters concerned.[5]
[5] Section 7.26(7) of the MAI Act.
The Panel refers to the above re-examination report of Medical Assessor Oates and adopts his findings in their entirety. The Panel reconvened on 25 February 2025 and discussed the re-examination report findings before collectively making the below determinations.
Diagnosis, causation and reasons
The diagnosis is cervical spine soft tissue injury, chest contusion, lumbar spine soft tissue injury, right shoulder soft tissue injury and thoracic spine soft tissue injury.
Based on the information available, these injuries are causally related to the subject accident. All injuries are mentioned in the Application for Personal Benefits signed on
6 June 2022, one week after the accident.Cervical spine, chest, lumbar spine, right shoulder and thoracic spine are mentioned in the first GP record of 2 June 2022 and the first certificate of 6 June 2022.
The physiotherapy pictogram of 4 July 2022 refers to cervical spine and lumbar spine. An ultrasound of 9 June 2022 refers to impingement of the right shoulder at 90° of abduction and is referred to in the physiotherapy records.
As indicated above, there is the more recent onset of medial right elbow pain, as yet not investigated or diagnosed, but more likely than not, unrelated to the accident because of the long time interval between the date of accident and the date of onset of right elbow pain several years later.
The Panel felt it was not appropriate to make any definitive finding with respect to whether the right elbow pain is related to any right elbow injury caused by the motor accident. The claimant had not alleged any accident-related right elbow injury in the claim documents nor in the submissions contained in the application and reply documents lodged at the Commission. The documentation before the Panel also contained no information to suggest this was an injury that was within the scope of the medical dispute.[6]
[6] Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71.
Permanent impairment
Cervical spine
There is asymmetric loss of active range of motion in rotation and lateral flexion, which is a differentiator for DRE Cervicothoracic Category II giving 5% WPI.
There are not two or more criteria present to justify a diagnosis of cervical radiculopathy. The assessed permanent impairment is 5%.
Thoracic and lumbar spine
The clinical findings at both the thoracic spine and the lumbar spine did not show dysmetria, non-verifiable radicular complaints, nor was there guarding and there was no evidence of radiculopathy.
The clinical examination findings in these two spine regions both give a DRE Category I giving 0% WPI.
Right shoulder
The right shoulder’s active movement, particularly in elevation, was said to be limited by medial right elbow pain and there were clinical examination signs of a probable right medial epicondylitis (golfer’s elbow). However, this condition has not been assessed by his treating doctor, hence there is no definitive diagnosis made yet, since there have been no investigations, and no treatment has been instituted.
The demonstrated right shoulder ROM is less than what would be expected, if it were due solely to the extent of shoulder pathology demonstrated on imaging and after consideration of the nature of the right shoulder injury. The right shoulder elevation is limited by variable pain complaints, meaning ROM measurements cannot be used as a valid parameter of permanent impairment evaluation. The Panel used discretion and clinical experience to determine an appropriate alternative method to assess the impairment.
The right shoulder elevation would be expected to have been affected in a similar way by an analogous condition which was chosen in order to assess the permanent impairment arising from the right shoulder soft tissue injury.
The most appropriate analogous method is that of mild crepitation of the acromioclavicular joint of the shoulder. This represents 10% impairment of the joint. 10% of 15% WPI is 1.5 rounded up to 2% WPI.
This method of assessing impairment by analogy was chosen as being the most appropriate because this condition would reasonably be expected to cause some limitation of active range of movement in elevation of the right shoulder, which is the situation being assessed in this matter.
A mild level of severity was deemed appropriate by the Panel Medical Assessors after considering that the right shoulder pain did not commence until a few days after the accident, in keeping with a mild soft tissue strain, rather than a significant injury which would have been reasonably expected to cause immediate shoulder pain. Furthermore, MRI imaging showed only minor tendon pathology but no tear, along with bursitis, which is a nonspecific finding also seen on scanning in the absence of trauma. The treating orthopaedic surgeon concluded that the shoulder injury was not of a type which required surgery, and instead suggested continuing conservative treatment such as physiotherapy after there was some temporary symptom relief from a cortico-steroid injection.
The combined impairment is 5% by 2% giving 7% WPI.[7]
[7] Impairment evaluation made pursuant to AMA 4 Chapter 3, Tables 72, 73, 74, Pages 110, 111. Table 3, Page 20. Table 18, 19, Pages 58, 59. Motor Accident Guidelines cls 6.24, 6.40, 6.50.
Pre-existing impairment
The Panel noted the pre-existing complaints made to the claimant’s GP of niggling back pain with right leg sciatica and numbness in August 2020 and again in June 2021. The Panel accepts the claimant’s response that these symptoms “settled down” as this was consistent with there being no further symptoms of note in the GP’s records of Elizabeth Drive Medical Centre. In addition, the complaints as recorded contain insufficient detail to place the claimant into any lumbar spine DRE Category or amount to any measurable permanent impairment.
Accordingly, no deduction of permanent impairment is made for any pre-existing permanent impairment.
CONCLUSION
The claimant’s WPI as a result of the motor accident is 7% and is not greater than 10%. The Panel therefore confirms the certificate of Medical Assessor Mohammed Assem dated
13 August 2024.
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