Kairouz v Allianz Australia Insurance Limited

[2025] NSWPICMP 54

DETERMINATION OF REVIEW PANEL

CITATION:

Kairouz v Allianz Australia Insurance Limited [2025] NSWPICMP 54

CLAIMANT:

Rita Kairouz

INSURER:

Allianz

REVIEW PANEL

MEMBER:

Hugh Macken

MEDICAL ASSESSOR:

Clive Kenna

MEDICAL ASSESSOR:

Drew Dixon

DATE OF DECISION:

31 January 2025

CATCHWORDS:

MOTOR ACCIDENTS – Review of medical assessment; whole person impairment (WPI); major depressive disorder with anxious distress; history of hypertension, diabetes, partial hearing loss; cervical spine revealed underlying but previously diagnosed cervical spondylosis; ongoing neck and shoulder pain; examination revealed no neurological deficits; injuries to cervical spine, right shoulder, left shoulder, right elbow, left elbow, right wrist, left wrist, right hand, left hand, right knee; soft tissue injuries to multiple regions; background of well designated osteoarthritic changes confirmed by radiologically; Held – WPI 0%.

DETERMINATIONS MADE:  

CERTIFICATE OF DETERMINATION

ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENT

Certificate issued under s 7.23(1) of the Motor Accident injuries Act 2017

1.     The Review Panel revokes the certificate of Medical Assessor Farhan Shahzad dated 29 July 2024 and issues a new certificate that:

(a)    the following injuries caused by the motor accident give rise to a permanent impairment of 0% and is not greater than 10%:

·     cervical spine

·     right shoulder

·     left shoulder

·     right elbow

·     left elbow

·     right wrist

·     left wrist

·     right hand

·     left hand

·     right knee

STATEMENT OF REASONS

INTRODUCTION

1. Rita Kairouz (the claimant) is a 71-year-old woman who was injured in a motor vehicle accident on 31 March 2021. Following the accident the claimant lodged an Application for Personal Injury Benefits and thereafter sought a concession from the insurer that she had sustained non-threshold injuries. Following a review the insurer declined to make this concession and thereafter the claimant filed an application for assessment of threshold injury in respect to both physical and psychiatric injury.

2. The claimant was assessed by Medical Assessor Fukui on 23 November 2022 who, in a certificate dated 7 December 2022, the claimant had sustained a non-threshold injury being major depressive disorder with anxious distress. An Application for Assessment of Whole Person Impairment was made in respect to the psychiatric injury she sustained she was assessed by Medical Assessor Sidorov who, in a certificate dated 4 June 2024, determined that she had sustained a 5% whole person impairment consequent on a major depressive disorder with anxious distress.

3. In respect to the physical injuries sustained by the claimant she was assessed by Medical Assessor Alexander Woo on 28 September 2022 who, in a certificate dated 1 October 2022 determined that the physical injuries she sustained were a minor injury. The claimant, having been found to have sustained a non-threshold injury in respect to the psychological injury she sustained then made an application for assessment of the degree of permanent impairment in respect to her physical injuries and was examined by Medical Assessor Shahzad on 3 July 2024 who, in a certificate dated 29 July 2024, determined she had sustained 5% whole person impairment.

4. The claimant sought a review of this assessment which was considered by President’s delegate Ashley Payne who, in a decision dated 13 September 2024 determined that there is a reasonable cause to suspect the medical assessment was incorrect in a material respect. This was seemingly on the basis that the claimant was not given an opportunity to respond to various observations made by Medical Assessor Shahzad.

5. Thereafter, the matter was considered by this Medical Panel on 20 November 2024 and it was noted that there was significant material which was required being considered in respect to this matter. The parties were directed to upload to the portal the application and reply for the assessment of a minor injury together with the application and reply for the assessment of whole person impairment. This material was provided and before the Review Panel (Panel). The Panel further determined that there was a requirement that the claimant be re-examined.

6. Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of the Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.

7. The new review provision provide that a review panel consists of two Medical Assessors and a Member assigned by the Motor Accidents Division of the Personal Injury Commission (the Commission).

8. Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.

9. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the matter solely based on the written application.

10. The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.

STATUTORY PROVISIONS/GUIDELINES

1. Section 57 of the Motor Accidents Compensation Act (MAC Act) defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.

2. Section 58 and s 60 of the MAC Act together with clauses 1.5-1.7 of the Guidelines set out the procedures for referral to one or more medical assessors and the principles to be applied at such assessments.

3. The claimant was examined by Medical Assessor Clive Kenna on 11 December 2024 in relation to the injuries allegedly to have been suffered in the subject motor vehicle accident. An Arabic interpreter was in attendance.

Pre-accident medical history and relevant personal details

1. Ms Kairouz emigrated from Lebanon in 1973 and resides in Blacktown. She is a pensioner. She states she has not been involved in motor vehicle accidents previously or indeed since. Following the motor vehicle accident, she no longer drives and relies on her husband for transport. By way of further background, she has a history of hypertension, diabetes and partial hearing loss.

History of the motor accident

1. She states that on 31 March 2021, it was mid-afternoon and she was a front seat passenger in a car driven by her husband. They were driving a Toyota Corolla and as they approached traffic lights her husband slowed the car down. However the car behind failed to slow and rear-ended their vehicle. Subsequent to that, a vehicle two cars back impacted the car behind theirs and again, they were hit by the rear car on a second occasion. Hence, there were two impacts but states that the first impact was the worst, not the second.

2. She states that this collision was severe and in doing so, was thrust forward in the seat and she put her hands onto the dashboard to protect herself from any impact. There was no loss of consciousness and was able to extricate herself from the car. Police attended, but ambulance did not and she did not attend hospital. The car was subsequently towed.

History of symptoms and treatment following the motor accident

1. She was seen by her general practitioner, Dr Hanna, who ordered a range of X-rays. Medications were prescribed and after a period of rest, she was referred through to physiotherapy.

2. It was noted at the time by her treating general practitioner (GP) that plain films of the cervical spine revealed underlying but already previously diagnosed cervical spondylosis.

3. The X-rays of both shoulders and wrists showed no fractures but rotator cuff degenerative changes.

4. As a result of the ongoing symptoms, she commenced physiotherapy but obtained little benefit from this. Indeed she trialled it over about 12 months but eventually ceased due to lack of utility.

5. She then consulted another general practitioner, Dr Keshavarzi, who noted she was continuing to experience some 18 months to two years post motor vehicle accident ongoing neck and shoulder pain, and that she was being managed with anti-inflammatories, analgesics and topical cream. Further impacting this there had been some decrease in range of movement.

6. As a result of the accident, she had also been diagnosed with post-traumatic stress disorder for which she was still attending a psychologist at the time of my examination and assessment.

Details of any relevant conditions sustained since the motor vehicle accident

1. Nil.

Current symptoms

1. She states she continues to experience ongoing symptoms pertaining to in particular the shoulders, wrists and lower back, but acknowledges that most symptoms and pain are relatively well controlled by medications.

Current treatment

1. Currently as a result of her symptoms, she is on Lyrica and Amitriptyline and Somac. Her treating general practitioner is now Dr Coorey.

CLINICAL EXAMINATION

General presentation

1. Findings on clinical examination including specific measurements of range of movement (ROM) (where applicable) of each of the injuries assessed.

Cervical spine (cervicothoracic)

1. No muscle guarding or spasm present symmetrically reduced uniform range of motion (stiffness) but no asymmetry present.

2. No neurological deficit in either upper limb.

3. Any distal symptoms did not follow the distribution of any specific nerve root and there was no indication of a non-verifiable radicular complaint.

MOVEMENTS	RANGE EXHIBITED
Flexion	10% restriction
Extension	10% restriction
Rotation to the right	10% restriction
Rotation to the left	10% restriction
Lateral bending to the right	10% restriction
Lateral bending to the left	10% restriction

NEUROLOGICAL TESTS:

Reflexes:

REFLEX	LEFT	RIGHT
TRICEPS JERK	Normal	Normal
BICEPS JERK	Normal	Normal
BRACHIORADIALIS	Normal	Normal

SENSATION:

1. Normal.

2. Two-point discrimination sensation was normal and a point separation of some 6mm and sensitivity to light and firmer touch was normal throughout both upper limbs.

MUSCLE WASTING

1. No muscle wasting.

LEFT (cm)	RIGHT (cm)
UPPER ARM	25	25
FOREARM	23	23

MUSCLE POWER

LEVEL	MOTOR POWER	LEFT	RIGHT
C4	5/5	NORMAL	NORMAL
C5	5/5	NORMAL	NORMAL
C6	5/5	NORMAL	NORMAL
C7	5/5	NORMAL	NORMAL
C8	5/5	NORMAL	NORMAL
T1	5/5	NORMAL	NORMAL

5 is active movement against gravity with full resistance;

4 is active movement against gravity with some resistance, and

3 is active movement against gravity only, without resistance.

DURAL TENSION TESTS:

TEST	RIGHT	LEFT
PASSIVE NECK FLEXION	Normal	Normal
BRACHIAL PLEXUS STRETCH	Normal	Normal

Upper extremity

1. Initially the claimant had reduced range of movement. Via the interpreter, she was asked to provide her best effort, but not causing any pain and discomfort, and she subsequently demonstrated the movements as demonstrated below.

2. The movements were repeated on three occasions for consistency.

Right shoulder

Measurement	Reference (4th ed.)	Normal	Upper Extremity Impairment
Flexion	180°	Figure 38 (43)	180°	0
Extension	50°	Figure 38 (43)	50°	0
Adduction	50°	Figure 41 (44)	50°	0
Abduction	180°	Figure 41 (44)	180°	0
Internal Rotation	90°	Figure 44 (45)	90°	0
External Rotation	90°	Figure 44 (45)	90°	0
Total	0

Goniometer measured

1. Inspection of the right shoulder was normal. Arc, resisted motions, and passive motions were pain free on the right. There was no abnormal tenderness. Impingement tests were negative.

Left shoulder

Measurement	Reference (4th ed.)	Normal	Upper Extremity Impairment
Flexion	180°	Figure 38 (43)	180°	0
Extension	50°	Figure 38 (43)	50°	0
Adduction	50°	Figure 41 (44)	50°	0
Abduction	180°	Figure 41 (44)	180°	0
Internal Rotation	90°	Figure 44 (45)	90°	0
External Rotation	90°	Figure 44 (45)	90°	0
Total	0

Goniometer measured

1. Inspection of the left shoulder was normal. Arc, resisted motions, and passive motions were pain free on the left. There was no abnormal tenderness. Impingement tests were negative.

ELBOWS

1. Measurements of the elbows were performed in accordance with the methodology described in Section 3.1I Elbow (38-41) of the American Medical Association's Guides to the Evaluation of Permanent Impairment, Fourth Edition.

Right elbow

Measurement	Reference (4th ed.)	Normal	Upper Extremity Impairment
Flexion	140	Figure 32 (40)	140°	0
Extension	0º	Figure 32 (40)	0°	0
Supination	80	Figure 35 (41)	80°	0
Pronation	80º	Figure 35 (41)	80°	0
Total	0

Left Elbow

Measurement	Reference (4th ed.)	Normal	Upper Extremity Impairment
Flexion	140	Figure 32 (40)	140°	0
Extension	0º	Figure 32 (40)	0°	0
Supination	80	Figure 35 (41)	80°	0
Pronation	80º	Figure 35 (41)	80°	0
Total	0

1. Inspection of the elbows was normal. Resisted and passive motions were pain free. There were no abnormal findings.

WRISTS

1. Measurements of the wrists were performed in accordance with the methodology described in Section 3.1h Wrist (35-38) of the American Medical Association's Guides to the Evaluation of Permanent Impairment, Fourth Edition.

Right wrist

Measurement	Reference (4th ed.)	Normal	Upper Extremity Impairment
Flexion	60°	Figure 26 (36)	60°	0
Extension	60°	Figure 26 (36)	60°	0
Radial Deviation	20°	Figure 29 (38)	20°	0
Ulnar Deviation	30°	Figure 29 (38)	30°	0
Total	0

Left wrist

Measurement	Reference (4th ed.)	Normal	Upper Extremity Impairment
Flexion	60°	Figure 26 (36)	60°	0
Extension	60°	Figure 26 (36)	60°	0
Radial Deviation	20°	Figure 29 (38)	20°	0
Ulnar Deviation	30°	Figure 29 (38)	30°	0
Total	0

1. Inspection of the wrist was normal. Resisted and passive motions were pain free. There were no abnormal findings. Finkelstein’s was negative.

2. There was full movement of right and left hands.

Lower extremity

Right knee

1. There is no muscle wasting.

2. There is symmetry between right and left legs above and below the knee.

3. Normal gait.

4. There is no use of a cane or brace and no redness, warmth, swelling, effusion or deformity.

5. Measurement of the involved calf and thigh are symmetrical with the contralateral side.

6. Ligamentous and meniscal stress tests are normal and painless.

7. The knee range is from 0 to 125°.

8. Manual muscle testing shows normal strength in the extremity.

9. Note that the knees have normal alignment.

10. No crepitus.

Left/Right Knee

Extension 0°

¯

Flexion 135°

0

¯

135°

Normal motion.

Scars – nil.

Quadriceps wasting – nil.

Swelling – nil.

Collateral Ligaments – intact.

Cruciate Ligaments – intact.

McMurray’s Test – normal.

Patello-femoral joint – normal.

Lateral patellar tilt – nil.

Lateral drift (with quadriceps contraction) – nil.

Gait – normal.

Short leg – nil.

Atrophy – negative.

Weakness – negative.

Range of movement – normal.

Osteoarthritis – nil.

Amputation – nil.

Neurological deficit – nil.

Reflex sympathetic dystrophy – nil.

Vascular – normal.

RADIOLOGY

1. I note the radiological report pertaining to the cervical spine dated 6 April 2021 which showed fairly widespread degenerative change, i.e. long-standing and pre-existent.

2. Plain film of the shoulders and wrists dated 19 May 2021 – no fractures or dislocations identified. Both shoulders showed degenerative changes, with the left wrist exhibiting carpometacarpal degenerative joint disease, but no evidence of bony injury. Bilateral shoulder rotator cuff degeneration. Left wrist 1^st carpometacarpal joint degeneration.

3. Ultrasounds of both right and left shoulders dated 26 October 2022 show long-standing degenerative change in relation to the rotator cuffs with moderate subdeltoid bursitis, i.e. not clinically evident on the day of my assessment.

4. X-rays of the right knee shows tricompartmental degenerative change as of a report of 22 December 2021, long-standing, pre-existent.

REVIEW OF DOCUMENTATION

1. The Panel notes the report from Dr Peter Conrad dated 11 July 2023 as well as Medical Assessor Dr Woo (report dated 28 September 2022, i.e. 18 months post motor vehicle accident). As outlined above the Panel made a significantly differing findings consequent on the examination of the claimant. The opinion of Dr Conrad, identifying as it does a whole person impairment of 20% consequent on the impairment to both wrists, the right knee, both shoulders and cervical spine is at odds with the opinion of the Panel which is that these body parts were pre-existing to the accident and reflective of degenerative changes and not caused only by the motor vehicle accident as would seem to be the opinion of Dr Conrad.

2. Several reports on inconsistency and pain behaviour, however as noted the claimant was informed of best effort possible and the claimant was compliant with such.

CLINICAL COMMENTS

1. Rita Kairouz is a 73-year-old woman who was involved in a motor vehicle accident some 3.5 years ago, in which she sustained soft tissue injuries to multiple regions involving the cervical spine and bilateral upper limbs, shoulders, elbows, wrists and hands, as well as the right knee.

2. This is on a background of well-designated osteoarthritic changes confirmed radiologically, with general practitioner accompanying notes confirming such.

3. Overall, she has been treated conservatively and has had no injections, operations or procedures, nor is anything planned.

4. Hence, while she remains symptomatic in part, she has a clinical presentation of symptoms but no physical signs which could be related to the motor vehicle accident. There has never been a question of bony fractures or injury to nerves, or any signs of radiculopathy or complete or ruptured partial tendons, ligaments etc. In relation to impairment, the findings are as follows:

Cervical spine

1. As noted, she had a symmetrical range of movement of the cervical spine, no muscle spasm on ballotment and no neurological deficit distally in either upper extremity. This would be compliant with a diagnosis-related estimate (DRE) I assessment rating equalling 0% whole person impairment.

Upper extremities

1. She demonstrated a symmetrically full range of movement of both shoulders as noted, and therefore there was no loss of range of motion in relation to the motor vehicle accident per se.

2. Similar findings pertaining to both elbows, wrists and hands.

Lower extremities

1. At the time of my assessment, the right knee presented normally with normal ROM no alteration of gait.

2. I consider her ongoing clinical symptoms are a combination of non-causal in relation to the motor vehicle accident on a background of fairly advanced underlying and pre-existent degenerative change in which she may have sustained initially some temporary aggravation, but that aggravation has long since ceased.

3. Hence, the injuries resulting from the accident are as listed.

4. I have noted her substantive pre-existent level of degenerative change which, as stated, could well have been aggravated initially as a result of the motor vehicle accident. This has not had an impact on employment, indeed, she has not worked for many years.

5. I consider that whilst the injuries were consistent with the stated cause, her pre-existent level of degenerative change has significantly influenced the course of current events and current symptoms. That any initial motor vehicle accident related soft tissue injuries have since largely resolved and her current clinical presentation is very much related to underlying degenerative change.

1. I have commented on treatment and note this is conservative. Essentially, all conservative treatment has since ceased.

2. There has never been any consideration for any operative procedure and in view of the time that has elapsed, 3.5 years, her condition has fully stabilised.

WHOLE PERSON IMPAIRMENT

Body Part or System	AMA Guides/ The 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 DRE I	Ch 3, pgs102-107, AMA4 Tables 7 & 8 The Guidelines	Yes	0	0	0
2	Right shoulder	Ch 3, 3.1, pgs15-74 T 1-32 The Guidelines	Yes	0	0	0
3	Left shoulder	Ch 3, 3.1, pgs15-74 T 1-32 The Guidelines	Yes	0	0	0
4	Right elbow	Ch 3, 3.1, pgs15-74 T 1-32 The Guidelines	Yes	0	0	0
5	Left elbow	Ch 3, 3.1, pgs15-74 T 1-32 The Guidelines	Yes	0	0	0
6	Right wrist	Ch 3, 3.1, pgs15-74 T 1-32 The Guidelines	Yes	0	0	0
7	Left wrist	Ch 3, 3.1, pgs15-74 T 1-32 The Guidelines	Yes	0	0	0
8	Right hand	Ch 3, 3.1, pgs15-74 T 1-32 The Guidelines	Yes	0	0	0
9	Left hand	Ch 3, 3.1, pgs15-74 T 1-32 The Guidelines	Yes	0	0	0
10	Right knee	ch3, pge77, AMA Guides T37	Yes	0	0	0

1. The Panel assesses the whole person impairment consequent on the injuries sustained in the motor vehicle accident at Zero percent.