Karam v AAI Limited t/as GIO

DETERMINATION OF REVIEW PANEL
CITATION:	Karam v AAI Limited t/as GIO [2022] NSWPICMP 531
CLAIMANT:	Hanna Karam
INSURER:	AAI Limited t/as GIO
REVIEW Panel
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Geoffrey Stubbs
MEDICAL ASSESSOR:	Shane Moloney
DATE OF DECISION:	12 December 2022
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; medical dispute about whole person impairment (WPI) and treatment; review of Medical Assessor’s assessment of WPI; injuries to be assessed are neck and thoracic spine, left and right shoulders, right arm and right wrist; claimant had at least six previous accidents and longstanding neck and back conditions; significant issue of causation and allowance for pre-existing apportionment in relation to shoulders; Held – impairment was 0% and is now 0%; no issue of principle.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Part 3.4 of the Motor Accidents Compensation Act 1999 The Review Panel: 1. Confirms the certificate of Medical Assessor Wijetunga dated 25 February 2022. 2. Certifies that the degree of Hanna Karam’s permanent impairment resulting from the injuries caused by the motor accident on 19 September 2017 is not greater than 10%.

STATEMENT OF REASONS

Introduction

Mr Hanna Karam was involved in a motor accident on 19 September 2017. He was stationary in his own car waiting to turn left when a vehicle collided with the right-hand back corner of his bumper bar.
Mr Karam made a claim against GIO, the third-party insurer of the vehicle that collided with his.
A dispute has arisen in connection with the claim about the degree of Mr Karam’s whole person impairment (WPI). That dispute was referred to the Personal Injury Commission (the Commission) and on 25 February 2022, Medical Assessor Wijetunga determined the claimant had a WPI of not greater than 10%.
The claimant was disappointed with that decision and lodged an application for review. The President’s delegate determined there was reasonable cause to suspect a material error in Medical Assessor Wijetunga’s assessment and the President has convened this Panel.

Legislative framework

Background

Mr Hanna’s claim and entitlements to compensation are governed by the provisions of the Motor Accident Compensation Act 1999 (the MAC Act).
Damages for non-economic loss are provided for in part 5.3 of the MAC Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 134[1] and entitlement to those damages is restricted by s 131 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
[1] The current maximum as of October 2022 is $605,000.

Dispute resolution

If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination[2].
[2] See s 132 and s 44(1)(c) of the MAC Act.
Part 3.4 of the MAC Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Wijetunga’s, further medical assessments and the review of medical assessments by this Panel[3].
[3] Sections 61, 62 and 63 of the MAC Act.
Rule 128 of the Personal Injury Commission Rules allows the Panel to conduct and determine the proceedings before it “in accordance with procedures determined by the panel”. The Panel can determine the matter on the papers, is not bound by the rules of evidence and may inquire into any relevant matters “as the Panel thinks fit”.

Permanent impairment assessment

Permanent impairment is to be assessed in accordance with the Motor Accident Permanent Impairment Guidelines (the Guidelines)[4] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA4 Guides).
[4] Section 133. The current version of the Guidelines is Version 1 which is effective from 30 November 2017.

Assessment under review

Medical Assessor Wijetunga was asked to assess the following injuries as identified by the claimant:
(a)    cervical spine – neck – further post-traumatic mechanical derangement of the cervical spine; Musculo-ligamentous sprain/strain of the cervical spine; significant injury to the C3/4 level; disc bulge at C7/T1; aggravation of degenerative changes; soft tissue injury;
(b)    right shoulder – contusion to the articular surface of the right shoulder; spraining of the supporting capsular ligaments; full thickness tear of the supraspinatus, infraspinatus and subscapularis, larger than previous tear, soft tissue injury;
(c)    left shoulder – full thickness tear of the supraspinatus tendon of the left shoulder measuring 10 x 10mm; tear of the rotator cuff of the left shoulder; soft tissue injury;
(d)    right arm – rupture of the long head of the biceps of the right arm; soft tissue injury;
(e)    right wrist – contusion to the articular surface and spraining of the supporting capsular and ligamentous structures of the right wrist soft tissue injury;
(f)    thoracic spine – musculo-ligamentous sprain / strain of the thoracic spine with possible disc involvement; aggravation of underlying spondylitic changes of the thoracic spine, soft tissue injury, and
(g)    lumbar spine – lower back – further post-traumatic mechanical derangement of the lumbar spine, musculo ligamentous sprain / strain of the lumbar spine; aggravation of underlying chronic post-traumatic, post-surgical spondylitic changes, soft tissue injury.
Medical Assessor Wijetunga took a history from the claimant of his migration to Australia in 1975, work at a refrigeration company and then at another firm for about four years, process work for one and a half years after that and he records that in 1980 the claimant opened a restaurant and has continued to work there for 15 hours over three days and nights per week.
The Medical Assessor has the following medical history:
(a)    1979 – work related injury to lower back and left foot (off work for four-five months);
(b)    1984 – car accident with neck and back pain, no time off work but some residual pain;
(c)    1985 – car accident with aggravation of neck and upper back pain and no time off work;
(d)    1993-1996 – spinal surgery possibly a laminectomy and microdiscectomy;
(e)    1996 – car accident causing a knee injury but no claim (intermittent knee aches since then);
(f)    1998 – car accident causing injuries to the neck, lower back and left knee. The claimant had physiotherapy and after a couple of months the pain settled, and
(g)    2011 – car accident following which he experienced bilateral shoulder pain, elbow pain, neck pain and back pain, left ankle surgery and fractured left lower ribs.
Medical Assessor Wijetunga notes that in the 12 months before the accident the records suggest that Mr Karam had:
(a)    constant neck pain which increased a couple of times a week;
(b)    bilateral shoulder pain;
(c)    right wrist pain;
(d)    lower back pain, and
(e)    upper back pain.
In the six months before the accident, the Medical Assessor had a history of a further episode of lower back pain with radiating pain into the right leg which then subsided.
Medical Assessor Wijetunga took a history of the impact to the right rear end of Mr Karam’s 2004 Ford Falcon and that the claimant had immediate wrist pain as he was gripping the steering wheel tightly. She records that Mr Karam got out of the car, emergency services did not attend, and the car was repaired for $1,800. The claimant says after about an hour he developed neck pain, bilateral shoulder pain, lower back pain and right wrist pain.
The claimant said he went to see his general practitioner (GP) the next day and complained of pain in his neck, low back, both shoulders as well as his right arm and hand. The Medical Assessor took the claimant to his claim form dated 30 October 2017[5] which documents neck, back, right wrist and lower back pain but does not mention shoulder pain. The claimant said his solicitor filled the form in, but he had illustrated the areas of injury including the shoulders.
[5] Page 58 of the claimant’s bundle of documents.
The claimant’s current complaints included:
(a)    cervical spine;
(b)    right shoulder and right arm ruptured right biceps one to one and a half years ago;
(c)    right wrist;
(d)    left shoulder;
(e)    thoracic spine, and
(f)    lumbar spine.
Current medications were Celebrex, Gabapentin and Osteomol.
Medical Assessor Wijetunga made the following diagnoses:
(a)    it was plausible that the claimant had a whiplash associated disorder but there was no internal disruption to the cervical spine – closed period of several months;
(b)    in terms of the right shoulder she noted there was no airbag deployment, so there was no direct trauma to either shoulder and therefore it is not medically plausible to have a frank right shoulder injury. She does suggest the claimant could have had referred symptoms to the right shoulder from the whiplash neck injury;
(c)    left shoulder – there was no direct or frank injury to the left shoulder;
(d)    in considering the upper and lower back – the claimant has a long history of back pain, may have had some flexion of the thoracic spine which exacerbated symptoms but there is no clear history of ongoing upper back pain – therefore temporary aggravation only;
(e)    right arm – rupture of long head of the biceps occurred 18 months after the accident when carrying bags of ice and therefore not related, and
(f)    right wrist – there were complaints before and after the accident and unlikely to be causally related.
Her assessment of WPI was 0%.

Submissions received

Claimant’s submissions[6]

[6] These submissions were made to the President’s delegate and are dated 28 March 2022.

The claimant takes issue with the assessments of the following injuries and submits:
(a)    cervical spine – the Medical Assessor did not take into account Dr Johnston’s report mentioning only Dr McIntosh’s report. Dr Johnston was of the view a low severity accident could have caused short term injuries and made the claimant more susceptible to injury. The claimant says the Medical Assessor said the claimant now reports pain at a level of two or three out of 10 which is the same as reported before the accident and the Medical Assessor expressed the view the claimant’s current presentation is therefore a natural progression of his previous condition. The claimant suggests this ignores the history of pain levels that are 7/10 at times since the accident. The claimant’s injury is an aggravation of a previous injury;
(b)    right shoulder – the Medical Assessor misread Dr Guirguis’[7] note the day after the accident which says “MVA with severe pain and tenderness of all spine and rt shoulder” and she failed to appreciate a referral for ultrasound on that day. This is an indication of a frank and specific injury to the right shoulder;
(c)    left shoulder – the medical assessor misread the note of Dr Guirguis the day after the accident (when the claimant complained of pain over both shoulders) and ignores Dr Johnston’s report concerning causation. Her finding that the level of pain was the same before and after the accident ignores the claimant’s reports that his pain levels were 6-7/10 after the accident;
(d)    upper and lower back – Medical Assessor Wijetunga’s conclusion that the nature of the accident was unlikely to have resulted in forced flexion of the lumbar spine is at odds with the 20 September 2017 report of Dr Guirguis who reported “claimant very tender over the thoracic and lumbar spine”;
(e)    right arm – Medical Assessor Wijetunga had an incorrect history of the claimant carrying two or three bags of ice. The claimant has clarified the history that he was moving or pushing his right hand towards his left near ice in a chest freezer, and
(f)    right wrist – the claimant says he has no previous right wrist injury disclosed in the records and that any wrist pain is not the same intensity as it was before the accident.
[7] The claimant’s GP is Dr Guirguis of Lidcombe. He has been seen before and after the accident by Dr Guirgis of Newtown who has orthopaedic qualifications.
The claimant relies on his expert Dr Crocker to say if all the injuries were properly assessed the claimant would have a WPI of greater than 10%.

Insurer’s submissions[8]

[8] These submissions were made to the President’s delegate and are dated 14 April 2022.

The insurer responds to the claimant’s application as follows:
(a)    neck – Dr Johnston said the duration of any exacerbation was a matter for medical opinion. The Medical Assessor was entitled to rely on the claimant’s subjective pain rating;
(b)    right shoulder – the Assessor found it was medically implausible for the claimant to have sustained a frank injury to the right shoulder in the absence of any direct shoulder trauma. The claimant was wearing a seat belt over the right shoulder but had pre-existing significant shoulder problems;
(c)    left shoulder – the claimant has misstated Dr Johnson’s report and it is a matter for expert opinion and pathology to determine the duration of any injury or condition;
(d)    upper and lower back – the insurer says the claimant’s submissions are misconceived;
(e)    right arm – the Medical Assessor was not incorrect to describe the injury as a lifting injury, and
(f)    right wrist – the use of the visual analogue scale is supported by the State Insurance Regulatory Authority (SIRA) and 2-3/10 is similar to 4-5/10 as described by the claimant.
The insurer has raised throughout its submissions issues of causation noting the claimant’s previous accidents and conditions.

Procedural matters

On 30 August 2022 the Panel met to discuss the injuries and issues in dispute and determine whether there was scope to narrow the issues in dispute.
The Panel drew to the parties’ attention the findings of 0% WPI by Medical Assessor Wijetunga and the claimant’s own expert’s assessment of 0% in five of the listed injuries and queried whether they needed to be assessed.

Further submissions

On 7 September 2022 the claimant provided further submissions suggesting the Panel confine its assessment to the claimant’s shoulders, thoracic and lumbar spine and the right wrist. The claimant submitted there was no issue with the assessment of the claimant’s neck or right arm both of which were assessed at 0%.
The insurer suggested the Panel confine itself to an assessment of the claimant’s shoulders and thoracic spine.
In the light of these submissions and in particular the claimant’s concession and noting the claimant’s well documented previous neck injuries, the Panel will not consider the claimant’s alleged neck injury or right arm injury but will assess the right wrist, both shoulders, thoracic and lumbar spine.

Review of the evidence

Claim form and claimant’s evidence

The claim form was completed by the claimant and signed as true and correct on 30 October 2017. While the Panel notes it lists injuries only to the neck, thoracic back, right wrist and lower back, the pain diagram has shading over both shoulders and almost the whole of the right arm is shaded.
The medical certificate signed by Dr Guirguis on 9 October 2017 diagnoses neck and back injuries, bilateral shoulder injuries (right more than left) and weakness in the right arm and hand.
The Panel notes the claim form signed by the claimant as true and correct after the October 2011 accident[9] identifies injuries to the neck, both shoulders, thoracic back, lower back, injury to left side ribs, left hip, right knee, left ankle and shock.
[9] Page 582 of the insurer’s bundle.
The claimant gave a statement signed by him and witnessed by his solicitor but not dated[10]. He says:
[10] Page 46 of the claimant’s bundle.
(a)    he was born in 1953 and is now 69 years of age and he migrated to Australia 1976 with wife and son and now has six children, five born in Australia. He divorced his wife in 1996;
(b)    he worked as a labourer, building white goods, then as a machine operator until he injured his back and left foot in 1979 and ceased work;
(c)    he purchased a restaurant with his sister in 1980 where he worked part time ‘on a social basis’. He received a Centrelink disability pension in 1994;
(d)    he started seeing Dr Guirgis orthopaedic specialist in 1979 and made workers compensation and common law claims finalised in 1987;
(e)    he has had seven motor vehicle accidents. The first three in October 1984, August 1985 and December 1985 resulted in claims against the GIO and court proceedings which were finalised in 1993;
(f)    he had further accidents in June 1996 (no claim), March 1998 (claim and court proceedings), June 2011 (no claim) and October 2011 (claim);
(g)    in April 1993 he had a discectomy and L4-L5 fusion;
(h)    immediately before the 19 September 2017 car accident he had pain in his neck, shoulders, mid back, lower back, knees and left ankle, “however I was improving and was leading a reasonable normal life. I was not receiving any treatment for these problems as it was not required”;
(i)    Mr Karam has asthma, high blood pressure, high cholesterol and diabetes, managed by tablets and none of these interfered with his normal life;
(j)    in terms of the accident, he said he was stationary at traffic lights when he was “struck violently from behind” by a utility with a bull bar. He says, “As a result of the violent collision, my whole body was thrown forcefully forwards and then it slammed back onto my seat”. He says he was stunned and felt “excruciating pain” in his neck, shoulders, right arm, right wrist, right hand, mid back and lower back;
(k)    on 6 March 2019 he said he was working in his restaurant making ice cubes, putting them into plastic bags and into the freezer. He says each of the bags would have weighed about 3kg. While moving things around in the freezer, he heard a clicking noise and felt excruciating pain in his right shoulder and arm. His right arm swelled and appeared bruised, and
(l)    he says he still experiences headaches, stiff and painful neck, pain travelling down his right shoulder arm and wrist, stiff and painful shoulders, lump in the right upper arm, pain to his mid back, stiff and painful lower back, back pain travelling down his legs.
The claimant documents his treatment, the investigations he has had and his continuing disabilities and provides details relevant to the quantification of his claim for damages.

Treating evidence

Dr Hawi

Dr Hawi was the claimant’s treating GP from 2011 to 2016.
His records note that on 4 January 2016 and 14 February 2016 the claimant was complaining of neck and back pains, bilateral shoulder pains and knee pains. The February record indicates the pain was severe.

Dr Guirguis

The records of Dr Guirguis reveal that on 20 April 2017 the claimant attended complaining of bilateral shoulder pain and he was prescribed Panadeine Forte. An attendance on 21 March 2017 for back pain also resulted in a prescription of Panadeine Forte. On 20 January 2017 the claimant attended with back pain noted as “severe” with severe restricted range of motion and he was “unable to move or walk”. The Panel notes the prescriptions of Panadeine Forte which is a strong pain killer and suggests the claimant was in a significant level of pain.
After the accident, the entry on 20 September 2017 reads as follows[11]:
“MVA … was driving with his seat belt on stationary in traffic light when another vehicle came fast and hit him on the back. He jerked suddenly hard and held the steering wheel hard with the pressing the brakes. Felt severe pai in his neck and right shoulder and arm. Could not sleep all night even on Panadeine forte. Unable to move his head / neck in all direction without severe pain. Severe tenderness over the C-spine and para spinal collar muscles. Tenderness over the shoulders bilaterally R > L. Very restricted range of motion of right shoulder to 40 degrees. Very tender over the thoracic and lumbosacral spine with paraspinal muscles.”
[11] Typographical and punctation errors have been corrected.

On 26 September 2017 there was a further attendance for “neuropathic pain” noting neck, back and right shoulder pain with very restricted range of motion.
On 25 October 2017 the records read “bilateral shoulder pain. Neck – pain, radiating to both shoulders and arms”.
There is a report from Dr Guirguis to GIO dated 6 July 2018 which essentially repeats the information in the notes including the history of the insured vehicle “coming fast” and the collision was “very strong” and he jerked suddenly hard and was holding the steering wheel strongly while pressing the brakes. The Panel notes Dr McIntosh had evidence before him from the driver of the insured vehicle who said he was travelling at 10-15 kms per hour at the time of the accident.
Within the records[12] is a medical assessment signed by Dr Guirguis for a mobility parking permit dated 22 July 2008[13] on the basis of a lumbosacral disc lesion, asthma, a right shoulder injury with restricted movement and a left knee injury with pain and restricted movements. A second medical assessment for a mobility parking permit dated 4 November 2013 provides the reason for seeking the permit are due to low back pain, cervical disc lesion, asthma and hypertension.
[12] Page 480 of the claimant’s bundle.
[13] Page 389 of the claimant’s bundle.
Also in Dr Guirguis’ records is an April 2009 medical assessment in support of department of housing accommodation[14]. This assessment notes the following conditions:
(a)    lumbosacral disc lesion resulting in low back pain, restricted back movements and an inability to stand or walk long time;
(b)    cervical disc lesion resulting in neck pain, restricted neck movements and tension headaches;
(c)    asthma with shortness of breath and episodic cough, and
(d)    hypertension, hyperlipidaemia and headaches.
[14] Page 385 of the insurer’s bundle.
These conditions were said to have a severe impact on the claimant’s well-being which would be long-lasting and that the claimant required fortnightly visits to health practitioners. There is also a letter from Dr Guirguis to the Housing Department dated 23 February 2011 supporting the claimant’s request for public housing.
Dr Guirguis wrote a letter to the Department of Immigration and Border Protection dated 24 November 2016[15]. This letter was in support of a visa for the claimant’s sister who was needed to care for Mr Karam. This letter notes conditions such as asthma, hypertension, high cholesterol and gout as well as neck, back, both shoulders, right knee and left ankle injuries. Dr Guirguis reports limited range of motion in the neck, back, shoulders, elbows, hips, knees and ankles. He says these injuries restrict the claimant’s ability to walk, lift, bend, shop and dress himself and “raising his arms above shoulder levels aggravate his pains and therefore restrict his movements”.
[15] Page 73 of the insurer’s bundle.
The insurer has obtained a letter from Dr Younan psychiatrist to Dr Guirguis dated 9 February 2017[16] referring to his treatment of the claimant from 1987 to 2005 for depression relating to chronic pain and physical incapacity due to three motor accidents. He says that at the consultation on 8 February 2017:
“I found him still depressed, had impaired concentration and on questioning I realised that his motivation and interests are reduced. His capacity for enjoyment is also diminished … His concentration in his assessment is much less than his normal self. He also stated that he was not sleeping well but when you started him on Cipramil, his sleep had somewhat improved. He told me about his need for his sister to be his carer for him – a matter that I strongly support as the chronic pain and loneliness, to say the least, are maintaining his chronic depression… It is evidence that his general functioning is impaired, not only because of the physical condition, but also the psychiatric one.”
[16] Page 120 of the insurer’s bundle.

Dr Guirgis

Dr Guirgis (orthopaedic surgeon) has written a number of letters to Dr Guirguis (GP) as follows:
(a)    4 October 2017 – the claimant had further injuries to his lumbar spine (mentioned twice) and the thoracic spine, further injury to the right shoulder joint “resulting in massive disruption of the shoulder rotator cuff and instability of his right shoulder”, post traumatic symptoms in the right wrist. There is no mention of the left shoulder joint or the neck in this letter.
(b)    19 October 2017 – “it was indicated to me that since the accident there were mild intermittent complaints in the left shoulder” which had been “masked” by the other more serious problems. On presentation today he had severe pain and stiffness in his left shoulder and an MRI was requested.
(c)    30 November 2017 – referred to Dr Murrell for steroid injections or surgery.
(d)    22 February 2018 – commentary on Dr Murrell’s letter and noting severe exacerbation of neck symptoms affecting his chewing muscles – unable to chew and eat.
(e)    26 April 2018 – shoulder problems were discussed, and claimant was advised to have left shoulder reconstruction of the rotator cuff first and then consider the reversed shoulder replacement procedure on the right side.
(f)    21 March 2019 – acute rupture of the tendon in the biceps in the right arm and the claimant was compensating with his left arm resulting in further tearing of the rotator cuff of the left shoulder. Reconstruct the left shoulder first and then consider treatment to the right.
(g)    1 August 2019 – severe episodes of right cervicoscapular pain and tightness triggering severe right sided occipital headache attacks and severe burning paraesthesia in the toes and forefeet triggered by walking for some time. Radiology was requested.
(h)    22 August 2019 to Professor Davies for severe episodes of right cervicoscapular pain and tightness triggering severe right sided occipital headaches since the car accident.
(i)    24 September 2020 – sciatica is getting better after the injection and there was review of the left shoulder scan.
Dr Guirgis wrote to the Department of Immigration and Border Protection on 21 November 2016[17], 10 months before the current car accident. Dr Guirgis says that the claimant has been under his care since the 1980’s and has:
(a)    chronic post-traumatic mechanical derangement of the cervical spine including significant issues at C5/6 and C3/4;
(b)    chronic rotator cuff arthropathy in the right shoulder with impingement;
(c)    chronic rotator cuff arthropathy in the left shoulder with impingement;
(d)    chronic mechanical derangement of the lumbar spine noting two decompressive surgeries in 1993 and 2002 with significant persistent pain and stiffness and bilateral sciatica;
(e)    advanced osteoarthritis in the right knee;
(f)    chronic post-traumatic mechanical derangement in the left ankle joint, and
(g)    chronic pain syndrome.
[17] Page 67 of the insurer’s bundle.
Dr Guirgis noted in this letter to the Department that there were functional impairments when using the upper limbs and Mr Karam could not pick up a two litre carton of liquid or reach up or out to pick up objects. There were functional impairments noted to lower limb function and the severe functional impact on activities due to the spinal conditions including an inability to “perform any overhead activity, bend forward or remain seated for more than 10 minutes”.

Dr Murrell

Dr George Murrell who identifies himself on his letterhead as a “shoulder surgeon” has also had an involvement with the claimant both before and after the current accident. He has sent letters to Dr Guirgis as follows[18]:
[18] These letters are found throughout the bundles of both parties and in particular the original bundle of documents in the claimant’s review bundle starting at page 43.
(a)    28 April 2014 – Mr Karam’s right shoulder problem began on 27 October 2011. He was in a car accident injuring both shoulders and received a cortisone injection to both shoulders two months afterwards. Eight months after that the claimant’s knee locked up causing him to fall injuring his right shoulder. There was a further fall and further injury to the right shoulder, “he has been having very severe pain with overhead activities and severe pain at night”. He had a painful but good range of movement and was recommended for arthroscopy and rotator cuff repair;
(b)    25 August 2016 – the claimant returned. As the insurance company had refused to pay for the surgery, the claimant was keen to have it and he was placed on the waiting list;
(c)    15 January 2018 – the claimant presented with bilateral shoulder problems. The right began in 2011, he was seen in 2014 and diagnosed with a rotator cuff tear and surgery was recommended. The claimant reported that his symptoms improved, and he cancelled the surgery. After the current car accident, Dr Murrell records that the claimant developed problems with overhead activities on the right and problems on the left and that an MRI of the right shoulder shows a larger tear than 2014. The right has progressed, the left is new and both are consistent with the accident. The Panel notes the history of difficulty with overhead activities since the accidents is inconsistent with the letters of Dr Guirguis and Dr Guirgis who have a history of difficulty with overhead activities before the car accident;
(d)    25 March 2019 – Dr Murrell reports that a couple of weeks ago the claimant had cortisone injections in both shoulders and then the long head of biceps rupture occurred. He recommended left shoulder reconstruction first then the right shoulder surgery upon recovery;
(e)    1 June 2020 – six months since his rotator cuff repair and “he is very happy with the shoulder and is back to many activities”. On examination there was a slightly restricted range of motion and he was strong in strength testing with no mechanical impingement;
(f)    11 November 2020 – 12 months since the surgery “he is not happy with the shoulder and is not back to many activities. He has significant pain.” On examination there was slightly restricted range of motion but weakness in strength testing and moderate mechanical impingement. He considered the rotator cuff may have been re-torn. Dr Murrell wanted to see him in three months’ time;
(g)    10 May 2021 – restricted range of motion in the shoulder, weak on strength testing and mild mechanical impingement. The rotator cuff was intact but thinned on ultrasound;
(h)    19 August 2021 – shoulder is quite stiff and weak and his left shoulder was showing “slow progress”, and
(i)    22 November 2021 – still having problems with the left shoulder and quite frustrated. Dr Murrell wished to have a capsular release and revision rotator cuff repair and put the claimant on the waiting list.
The claimant’s left shoulder arthroscopy and rotator cuff repair occurred on 2 December 2019. He was discharged the next day. A letter from Professor Murrell to Dr Guirgis dated 11 December 2019[19] suggested the surgery went “very well” and recovery was uneventful, and the claimant was “regaining shoulder motion”. Further letters on 13 January 2020 and 24 February 2020 suggested excellent progress. The claimant was “very happy” in January and “moderately happy” in February with the result of the surgery. His left shoulder range of passive motion measured and recorded at:
(a)    flexion                    130 in both January and February;
(b)    abduction               130 in both January and February;
(c)    external rotation     30 in January, 40 in February, and
(d)    internal rotation      44 in January, 48 in February.
[19] Page 152 of the claimant’s bundle.

Neurosurgeons

Dr Al Khawaja, neurosurgeon sent a letter dated 10 October 2019 to Dr Guirguis. He had a history of the multiple accidents including the current one then 2017.
He has a history of neck pain into the right shoulder then down both arms and now concentrated in the neck and right shoulder around the C4 nerve distribution. Mr Karam is reported to have had an injection a year previously which improved his neck pain, but it has returned. Dr Al Khawaja noted restriction in neck movements to the right and flexion and observed he was overweight with diminished knee and ankle jerks. He considered there was significant injury at the C3/4 level and recommended an injection to the C4 nerve root on the right side which, if it does not work, would suggest surgical intervention to fuse his spine would be necessary. He says:
“I believe multiple car accidents are a major contributing factor to his symptoms and they can damage the neck badly.”
In his letter dated 11 November 2019, Dr Al Khawaja notes the success of the C3/4 injection which then revealed the C7/T1 issues, and he was recommending an injection there. He also suggested hydrotherapy and physiotherapy and some stronger painkillers for a few months.
Dr Al Khawaja wrote to Dr Guirguis on 13 February 2020 noting the claimant’s “shoulder pain has come back … [with] increasing interscapular pain”. A SPECT scan and MRI was requested. On 9 April 2020 Dr Al Khawaja updated Dr Guirguis noting two areas of concern, the C3/4 issue and the thoracic C7/T1 issue. He noted no abnormality on the MRI or SPECT scan and recommended pain management.
A further report from Dr Al Khawaja to Dr Guirguis dated 24 November 2020 reports increasing neck and lower back pain getting worse not better. Back pain was said to going into both legs with burning sensation in both feet. While he had this before the car accident it was said to be worse. Doctor was considering fusion at C3/4 and L4/5.
Dr McKechnie, another neurosurgeon wrote to Dr Guirgis on 18 May 2020 having examined the claimant “again” noting he was “clinically unchanged with persistent pain in the neck and back as well as pain radiating across both shoulders”. He advised against surgery and proposed physiotherapy and a core strengthening program. The Panel notes that this report suggests previous treatment by Dr McKechnie but there are no earlier reports from him obvious to the Panel in either bundle.

Investigations

The parties have provided copies of many radiological findings from before the accident as follows:
(a)    28 November 2011 – SuperScan ultrasound both shoulders – biceps tendon thickened and a full thickness tear of supraspinatus and sub scapularis. Left sided partial tear supraspinatus tendon hs tendinosis, partial thickness tear and mild subacromial bursitis.
(b)    28 November 2011 – SuperScan bone scan spine SPECT. Left worse than right acromioclavicular joint, degenerative uptake at C4/5 facet joints. Mild increase end plates lumbar spine. Increased isotope uptake uptake 8^th rib may be the site of a fracture. Findings in left ankle may represent severe degenerative change.
(c)    19 March 2012 – MRI Australia upright multiplicity positional scan. Cervical spine multiple degenerative changes including C3/4 canal stenosis “markedly exaggerated on extension, with cord contact and cord deformity”.
(d)    19 March 2012 – MRI Australia – lumbar spine multilevel degenerative changes most marked at L4/5 with canal stenosis at L5/S1.
(e)    19 March 2012 – MRI Australia – full-thickness tear of supraspinatus tendon with retraction and muscle belly atrophy, full thickness insertional tear of infraspinatus tendon, fluid distending the gleno-humeral joint space in the setting of adhesive capsulitis, bicipital tenosynovitis and AC joint arthropathy.
(f)    27 March 2014 – Ultrascan radiology – ultrasound right shoulder - biceps tendinosis and small sheet effusion complete supraspinatus tear including infraspinatus.
(g)    28 April 2014 – Premier radiology 34x26 supraspinatus tear. AC joint narrowing linear tear sub scapularis 34x22 full-thickness tear infraspinatus 37mm.
(h)    20 January 2015 – Castlereagh imaging – MRI history of left ankle giving way. Subchondral cyst talar dome overlying cartilage degeneration cutlets defects 5×3mm. Extensive chondral lysis of articular cartilage of the posterior fibula joint. No significant ligamentous instability and multiple other changes.
(i)    24 February 2015 – Castlereagh imaging – plain X-ray of the right knee revealing osteoarthritis.
(j)    25 September 2016 – Imed radiology – ultrasound right shoulder showing massive rotator cuff tear supraspinatus, infraspinatus and subscapularis. Irregularity of the humeral head suggesting instability of the shoulder joint.
(k)    25 January 2017 – Castlereagh imaging – history of “severe low back pain more on left side. Unable to move or walk. Past history of disc lesions, required injections before.” CT lumbar spine showing loss of lumbar lordosis, large paracentral disc bulge at all levels.
(l)    21 September 2017 – Imed radiology – CT full spine with a history of “MVA with severe pain and tenderness of all spine and right shoulder”. Results were no fracture or malalignment but extensive degenerative changes seen.
After the current accident there are further scans and images reported upon:
(a)    25 September 2017 – Imed radiology – history of the car accident with “severe pain and tenderness of spine and right shoulder” – ultrasound right shoulder showing massive rotator cuff tear with complete tears of supraspinatus, infraspinatus and subscapularis; joint effusion into the bursa and biceps tendon sheath, irregularity at the humeral head is presumably degenerative.
(b)    10 October 2017 – CMI radiology bone scan neck, right shoulder, right wrist and low back pain. There is reactive change in the right gleno-humeral joint, degenerative change in each knee joint, degenerative changes in the ankle joints small joints of the wrist, hand and feet were normal and the bilateral L2-3 facet arthritis was resolved. The Panel notes there is no mention of left shoulder or neck features reported in this scan.
(c)    15 October 2017 – St George MRI – there is a massive rotator cuff tear. There are complete tears of supraspinatus and infraspinatus with prominent fatty muscle atrophy. There is a moderately large full thickness tear of the subscapularis and rupture of the biceps. There is mild glenohumeral osteo arthritis.
(d)    8 November 2017 – MRI left shoulder with a history of positive impingement signs. 17-18mm full thickness tear of the supraspinatus with retraction by up to 15mm. There is no muscle atrophy and the remaining rotator cuff is intact.
(e)    22 March 2018 – St George MRI cervical spine – clinical history of right sided radiculopathy – result moderate cervical spondylosis with no disc protrusion or canal stenosis and no significant neural compression seen on the right. There was significant spondylitic narrowing of the left C3/4 intervertebral foramen but the cervical cord was intact.
(f)    13 March 2019 – Auburn Medical Imaging – while headed Left shoulder ultrasound, the smaller heading and clinical history and the findings suggests this was of the right shoulder. The findings were of a full-thickness complete cuff tear with muscle atrophy. Complete LHB tear with minor surrounding haemorrhage accounting for the current symptoms (swelling and pain and bruising right arm).
(g)    6 August 2019 – bilateral leg arterial doppler ultrasound – moderate atherosclerotic disease but no significant stenosis.
(h)    20 August 2019 – St George MRI – moderate generalised spondylitic change and significant foraminal narrowing at C3/4 with possible compromise of C4 nerve roots. Small disc protrusion at C7/T1 but the canal and cord were intact.
(i)    16 October 2019 – CMI radiology – steroid injection into C4 nerve root with some improvement in symptoms and the claim was to return for a C3/4 facet block in due course.
(j)    22 October 2019 – CMI radiology – facet blocks undertaken with some improvement in symptoms.
(k)    20 November 2019 – CMI Radiology – facet joint injection at C7/T1 resulting in some improvement in symptoms.
(l)    19 February 2020 – CMI Radiology MRI – thoracic spine and whole body bone scan revealed spondylitic changes and active arthritis in the thoracic spine and in the gleno-humeral and acromio-clavicular joints.
(m)     24 February 2020 – Premier Radiology – X-ray revealed significant glenohumeral arthritis.
(n)    4 March 2020 - St George MRI thoracic spine addressed to Dr Al-Khawaja – history of increasing thoracic pain. Findings – thoracic spine mild spondylolytic changes but no evidence of disc protrusion, neural compression, impingement of thoracic canal and the cord was intact.
(o)    31 March 2020 – St George MRI cervical and lumbar spine addressed to Dr McKechnie – significant spondylolytic changes with C3-C7 disc space narrowing but no disc protrusion or canal stenosis and the central canal and cord were intact. Multiple changes in the lumbar spine, spondylosis with small lesions at L2-3 and L5-S1 without neural compression.
(p)    Premier radiology 12 months post left rotator cuff repair – intact but thinned.

Medico-legal evidence

Dr Marsh

Dr Marsh, an occupational physician examined the claimant at the request of GIO and provided a report dated 8 August 2018. It appears he had clinical notes (whose notes they were is not clear) and documents post-accident.
He has a history from Mr Karam of immediate pain down both sides of his neck, radiating over the top of the shoulder girdle and shoulder into the upper arm worse on the right than the left and that he had pain in the lower back radiating burning pain into the toes of both feet.
The claimant conceded he had pain in his neck, low back and right shoulder before the accident but that the accident has increased the level of his pain. He did not have any problems with his left shoulder before the accident.
His recorded range of shoulder motion measurements are recorded in the tables in the Appendix at the end of these reasons:
Dr Marsh’s diagnosis was an aggravation of pre-existing chronic musculoligamentous strain and degeneration of the neck and lower back and that the shoulder conditions were only minor aggravations. He found no impairment caused by the accident.

Dr Guirgis

While a treating doctor, Dr Guirgis has written a medico-legal style report[20] to the claimant’s solicitor dated 31 August 2013 in relation to the claimant’s October 2011 accident saying he first consulted the claimant (about that accident) on 24 November 2011. This report:
[20] Page 530 of the insurer’s bundle.
(a)    refers to the claimant’s earlier accidents and conditions;
(b)    records asymmetrical restriction of movement in the cervical and lumbar spine and the range of motion measured in the claimant’s shoulders is recorded in the tables of the Appendix at the end of these reasons;
(c)    diagnosed further post-traumatic mechanical derangement of the cervical spine and lumbar spines, further post traumatic mechanical derangement of the right shoulder joint and right knee, post-traumatic symptoms in the left shoulder joint, secondary symptoms in his left knee due to loading from the injured right knee and post traumatic symptoms in the left ankle;
(d)    expressed the view the claimant would require rotator cuff reconstruction of the right shoulder and left shoulder as a result of the accident, and
(e)    he assessed WPI at 25% as follows:
(i)neck – 5% less pre-existing 5% = 0%;
(ii)lower back – 10% less pre-existing = 0%;
(iii)right shoulder – 10%;
(iv)left shoulder – 6%;
(v)right knee – 12%, and
(vi)left ankle – 4%.
Dr Guirgis has also provided a report dated 9 November 2018 to the claimant’s solicitors[21]. He says in September 2017 the claimant sustained further injuries to his neck and back, an injury to the right wrist and to the upper thoracic spine and further injuries to the right and left shoulder.
[21] Page 731 of the insurer’s bundle – only part of this report has been provided – the full impairment assessment appears to have been omitted.
He examined the claimant’s neck and found DRE II signs including guarding and dysmetria but no neurological deficits. There was dysmetria in the thoracic spine and lumbar spine. He found restriction of the right wrist compared to the left.
His measurements of right and left shoulder motion on 8 November 2018 are provided alongside 7 March 2016 measurements and these are reproduced in the tables of the Appendix at the end of these reasons.
His opinion was that the claimant sustained the following injuries:
(a)    further post-traumatic mechanical derangement of the cervical spine;
(b)    further injury to the right shoulder joint resulting in a massive disruption of the shoulder rotator cuff;
(c)    further injury to the left shoulder joint to the extent that arthroscopic surgery was required;
(d)    post-traumatic symptoms in the right wrist;
(e)    post-traumatic mechanical derangement of the thoracic spine, and
(f)    further post-traumatic mechanical derangement of the lumbar spine.
The Panel notes the similarity in wording of the opinions expressed by Dr Guirgis in his 2013 and 2018 reports as to the nature of the injuries sustained.
Dr Guirgis’ third report is dated 9 July 2020[22]. He refers to a “significant and rapid deterioration” of the right and left shoulders since the car accident. Doctor notes the left shoulder surgery with a history given of improved pain, some improvement in range of motion but no improvement in strength.
[22] Document AD5 in the Commission’s electronic file.
Dr Guirgis has a report of the biceps tendon rupture but does not address causation and does not consider whether it has caused further restriction of movement in the shoulder or any further impairment. The Panel’s impression of this report is that Dr Guirgis is not of the view the tendon rupture was caused by the accident.
The claimant complained of worsening pain, stiffness and weakness in the right wrist, pins and needles, tingling and numbness in his right hand and fingers with difficulty opening jars.
There were complaints of increasing pain and symptoms in the neck, upper and lower back. Dr Guirgis assessed whole person impairment at 21%.

Dr Crocker

The claimant relies on three reports from Dr Crocker. The first follows an examination on 13 July 2020. Dr Crocker had a copy of the claimant’s statement and noted that before the current car accident he had recurring pain in his neck, shoulders, mid back, lower back, knees and left ankle but that he was improving. He notes that both the claimant and the offending driver drove a short distance before exchanging vehicles and that the claimant reports being “thrown forward and backward” and he felt shock.
The claimant reported feeling immediate pain in his neck, shoulders and back with a headache and that in the subsequent days pain occurred in his right arm and wrist.
The claimant informed Dr Crocker of his treatment history and noted that he had an injury at work on 6 March 2019 when he was placing ice into a freezer “he felt the sudden onset of severe pain to the right shoulder and upper arm”. Swelling occurred followed by bruising. Dr Crocker suspects this was when the claimant’s biceps ruptured.
The claimant says he saw Dr Al Khawaja neurosurgeon, Dr Ramachandran pain consultant and Dr McKechnie, neurosurgeon. He sees his GP and orthopaedic surgeon Dr Guirgis regularly.
The claimant complained of current pain in the neck and head, right shoulder with limited movement as a result, left shoulder pain and restriction but not as bad as the right and pain in the upper arm and wrist. He also complained of fairly constant pain in the thoracic and lower back with some radiation of pain. There were complaints of mild pain affecting the knees.
On examination there was asymmetry of movement (dysmetria) in the neck due to pain. There was tenderness with guarding.
Shoulder movements were restricted more so on the right and there was crepitus on both sides. His measurements are included in the tables in the Appendix at the end of these reasons.
Lumbar and thoracic movements were restricted as were both knees and there was crepitus in the knees.
Dr Crocker diagnosed:
(a) an acute musculoligamentous strain injuries to the cervical, thoracic and lumbar spine aggravating degenerative changes, and
(b) further rotator cuff tears of the right and left shoulder.
He assessed WPI at 18% as follows:
(a)    neck – DRE II with a pre-existing impairment of DRE II leaving a 0% WPI;
(b)    thoracolumbar – DRE II = 5%;
(c)    lumbosacral – DRE II = 5% with a pre-existing impairment of DRE II leaving a 0% WPI;
(d)    right shoulder – 11% less 3% = 8%;
(e)    right wrist – 0%, and
(f)    left shoulder – 7%.
Dr Crocker provided a supplementary report dated 28 March 2022 in response to Medical Assessor Wijetunga’s assessment. He notes her failure to refer to the two complaints of shoulder pains soon after the accident and the right shoulder radiology undertaken on 25 September (ultrasound) and 15 October 2017 (MRI). He also addressed the rupture of the biceps tendon expressing the view it occurred as a result of the accident because it was recorded in the MRI report of 15 October 2017.

Dr Keller

The insurer requested a report from Dr Keller dated 21 December 2020. He had a consistent history of the accident, immediate complaints of neck pain into both shoulders an\d numbness in the lower back. Dr Keller documents the treatment the claimant has received.
The claimant complained of constant pain in his neck radiating into the right shoulder, constant pain in the lower back radiating to the right lower limb and sometimes the left lower limb with constant left shoulder pain. His pain is currently 8 out of 10 whereas before the accident it was 2 out of 10.
On examination in the cervical spine movements were restricted but equal (no dysmetria) and there was no spasm or guarding recorded.
Dr Keller was of the view the accident “was at the lower end of the force spectrum” in that airbags did not deploy, and the car was driveable and repaired. He was of the view that “the subject accident has [not] caused any of his current disabilities or any lasting injuries”. He was of the view the accident did not create any additional impairment.

Associate Professor Shatwell

Associate Professor Shatwell, orthopaedic and accident surgeon provided a report to the GIO on 30 January 2021.
Associate Professor Shatwell’s report includes a comprehensive review of the main features of the post-accident treatment and the previous accidents.
In relation to the left shoulder, he comments at [774] that “degenerative tears of the rotator cuff progress with the passage of time and it is likely that the development of pain in the left shoulder was due to progressive deterioration of the rotator cuff over the six year period”. He notes the claimant did not give a history of acute left shoulder pain after the accident although he acknowledged a documented history of some shoulder symptoms including pain after the accident.
Also at [774] is a comment in relation to the right shoulder that the massive right rotator cuff tear and the related tears of the supraspinatus, infraspinatus and subscapularis are a “natural progression of a full-thickness tear of the rotator cuff identified on 28 November 2011”.
He noted the claimant continued to drive and work in his restaurant. He shopped for himself and his restaurant and had help from his family with the domestic duties. He noted no change in the claimant’s routine but changes to his medication for his chronic musculoskeletal disorders and that he has had appropriate investigations and treatment.
Dr Shatwell did not think that any of the claimant’s current symptoms are related to the accident but are due to “pre-existing musculoskeletal disorders”. He did not think there had been any significant aggravation of neck, lower back or rotator cuff disease.
In a separate report he considered there was no permanent impairment referable to any of the claimant’s accident-related injuries.

Other assessments

In 2015, a Review Panel convened by the Medical Assessment Service of SIRA, considered the original certificate of assessment of Medical Assessor Wilding. This concerned a medical dispute about WPI relating to a motor accident on 27 October 2011. Medical Assessor Wilding assessed the claimant on 10 March 2014 and the Review Panel (made up of Medical Assessors Couch, Kenna and Moloney) conducted their assessment on 17 March 2015.
That Panel had before it records from Dr Guirguis and refer to an entry on 3 June 2011 concerning an accident on 2 June 2011 “Parked the car on the left … opened the door about 30 degrees and was still holding the door with his hand, when a fast coming car hit the door and … the door jerked it threw his right arm fast and hard causing severe pain in his right shoulder down to the right elbow.” The claimant told the Panel he was hit from behind while holding the door but recalled pain in the right shoulder and neck.
The claimant’s complaints of pain to the Panel were of the worst symptoms in the left ankle, right knee and right shoulder and that his left shoulder pain had improved considerably. He had pain in his neck, thoracic and lumbar spine, left knee, left ankle and both wrists.
He was said to take Panadol Osteo, Lyrica, Tramal and a few Panadeine Forte “if pain was severe”.
The Panel’s shoulder motion measurements are recorded in the tables of the Appendix at the end of these reasons.
All injuries were considered stable and impairment permanent and the degree of impairment was assessed at 21% as follows:
(a)    neck – DRE II - 5% WPI due to dysmetria with non-verifiable radicular complaints;
(b)    thoracic – DRE I - 0% WPI;
(c)    lumbar spine – DRE II - 5% WPI pre-existing due to previous surgery;
(d)    right shoulder – 10% WPI of which half should be attributed to the car accident and half to the pre-existing pathology;
(e)    left shoulder – 5% WPI;
(f)    right knee - 4% WPI;
(g)    left knee - not injured;
(h)    left ankle – 4% WPI, and
(i)    both wrists – no wrist abnormality.

Bio-mechanical experts

Both the claimant and the insurer rely on reports from biomechanical engineers.
Dr McIntosh provided a report dated 13 November 2019 to the insurer. He has a history (from the insured driver) of the claimant being stationary, a collision speed of between

10-15km per hour and that no vehicles were towed. He has documents suggesting there was minor damage costing about $1,700 to the rear of the claimant’s vehicle and damage to the front bumper of the insured vehicle.
His opinions are:
(a)    there was a small sideswipe-type rear end collision resulting in minor damage to both cars;
(b)    the change in velocity of the claimant’s car was less then 5km per hour and that little momentum of the insured’s vehicle would have been transferred to the claimant’s vehicle;
(c)    the claimant had previous accident and “the mechanics of the collision could have reasonably led to symptomatic aggravation of the claimant’s pre-existing” neck and upper back conditions, and
(d)    the mechanics would not have caused any lumbar spine, lower limb, upper limb or shoulder injury or aggravation. He says the lumbar spine is well supported in a low impact collision and the shoulders would have ben been exposed to “blunt force loading, high intertial forces and / or forced through large or abnormal ranges of motion”.
Mr Johnston provided a report to the claimant’s solicitors dated 14 January 2021. He had the claimant’s statement and a number of medical reports as well as Dr McIntosh’s report.
He examined the photographs provided and suggests the insured’s nudge bar had been deformed but there was no visual damage to the front bumper or grille although there was a scrape on the left side front mudguard flare. He noted damage to the claimant’s tail light and a dent in the rear right corner of the bumper bar.
Mr Johnston’s opinion were:
(a)    it was feasible the claimant’s right shoulder could have interacted with the B-pillar;
(b)    if the driver were holding the steering wheel tightly enough his wrists could have been loaded;
(c)    he agrees with Dr McIntosh that there were moderate forces involved in this collision and “statistically the likelihood of injury to an otherwise health adult male were statistically very with the likelihood of long-term effects even lower”.
(d)    the specific circumstances of each incident and each individual must be considered an even at a very low speed some people can be injured;
(e)    he agreed with Dr McIntosh in relation to the neck and the thoracic spine however not with respect to the opinion the aggravation would have been closed period or short duration and says that is a matter for medical evidence;
(f)    he disagrees in terms of the shoulder loading noting there was pre-existing damage to the right shoulder and a mechanism for injury, and
(g)    “In general, I agree that this was what would normally be described as a low severity incident with the possibility of some short-term injuries to an otherwise health adult. The pre-existing injuries have clearly made Mr Karam more susceptible4 to exacerbation of his pre-existing conditions and significantly lowered the threshold for longer term disabilities as a result of this incident.”
The Panel notes Mr Johnston does not offer an opinion about causation of the left shoulder injuries but does suggest the claimant’s wrists could have been loaded (and presumably therefore injured) if he was holding the steering wheel tightly enough.

history FROM THE CLAIMANT

Mr Karam was examined by Medical Assessor’s Stubbs and Moloney at the Commission’s rooms on 30 September 2022.
Mr Karam attended alone having travelled to the examination by train. He has lived in Australia over 40 years having been born in Lebanon. He is fluent in English and an interpreter was not required.
Mr Karam says he is the owner and manager (in part) of a large Lebanese restaurant which seats up to 200 people. He works on Thursday, Friday and Saturday evenings.
The claimant is now 68 years of age. He was on a form of disability support benefit and following spinal surgery in 1996 and is now receiving the age pension. He presently lives in a New South Wales Housing Commission ground floor flat on his own but receives assistance with the housework from his children. He is still driving the Ford Falcon, the car that he was driving at the time of the motor vehicle accident.
There have been numerous injuries in his past including the following:
(a)    in 1979 he was working as a machine operator in a diecasting company. He suffered a burn injury to his left ankle, severe enough to require split skin grafting. He did not return to work after this but rather pursued a workers compensation claim. He reports the claim was heard before a judge and jury in the New South Wales Supreme Court where he achieved a settlement reached of $200,000, only $3,000 was left to him after costs;
(b)    in 1984 he had a motor vehicle accident that increased the neck and back pain which had been present before the diecasting accident;
(c)    in 1985 he had a further car accident which resulted in mid back problems. He had two low back operations by Professor Gabrielle in Newcastle, the first in 1991 the second in 1996. He felt that neither operation had been much help though the back improved somewhat after about 12 months. At this point he was on the disability support benefit;
(d)    in 1996 Mr Karam had a further motor vehicle accident suffering an injury to his left knee;
(e)    Mr Karam had another motor vehicle accident 1998 which he said worsened his knee injury, and
(f)    in 2011 he was teaching his niece to drive when his vehicle was hit on the passenger door and he injured both shoulders and the left ankle, neck and foot. He had surgery for the left ankle two years later and an osteochondral fracture was diagnosed. He made a claim and reached a settlement that he recalls was for $200,000. He was already running his restaurant by then.
The claimant saw Professor Murrell who recommended surgery to his shoulder but he did not proceed with it at that time.
Mr Karam was on a variety of medication for his diabetes, hyperlipidaemia, and hypertension. He now takes paracetamol with occasional paracetamol/codeine and nonsteroidal anti-inflammatory agents together with Lyrica. Lyrica was recently increased to 300mg twice daily. He walks for exercise 10 minutes at a time, can drive locally. He is having no physiotherapy or other active treatment. He goes to the Guirguis’ Family Medical Practice Fairfield for his care. He also sees Dr Guirgis who has orthopaedic qualifications.
Mr Karam told the examiners that Professor Murrell suggested he have surgery because the motor vehicle accident had increased the amount of damage to both shoulders. Professor Murrell suggested that the rotator cuff tear in the left shoulder was repairable but right shoulder rotator cuff disease was to the point of cuff tear arthropathy and would need a reverse geometry shoulder replacement. A rotator cuff repair of the left shoulder was performed at the St George Hospital as a public patient in December 2019.

Mr Karam said the result was disappointing, and the Panel notes it seems that follow-up ultrasound shows that the cuff repair has broken down. Mr Karam has declined any further operation on the left shoulder, but he is on the public waiting list for a total shoulder replacement to his right shoulder. Mr Karam explained that though the right shoulder is more diseased than the left the functional range of is about equal between the two and the right shoulder is less painful.
In 2020 Mr Karam suffered a further injury involving moving ice in a refrigerator at work. He had a rupture of the long head of the right biceps tendon. There is no pain now from the ruptured biceps tendon, but the shoulder is weaker.
He continues to experience neck and back pain and says this is also noticeably worse since the last motor vehicle accident.
Mr Karam was given the opportunity to identify any further injuries sustained in the accident but did not. He did not make any complaints of right arm pain or injury to either of his wrists.

History of the motor vehicle accident.

Mr Karam was driving his Ford Falcon sedan. He was waiting to turn left onto a red signal when he was hit on the driver side rear. He felt he was thrown backwards and then forwards. The steering was wrenched about his hands and made his shoulders painful. He did not hit his knee. There were no airbags deployed. He was wearing a seatbelt. He drove the vehicle home and it was subsequently repaired for what he believes was $1,700. He went to see his GP at the Guirguis’ Family Medical Practice following day. He was prescribed a course of physical therapy which also took place at the Guirguis’ Family Medical Practice.
He reports that he needs his family to help with the housework and to assist him when shopping. He says that his work at the restaurant is managerial.

Current symptoms

Mr Karam denied specific or frank symptoms in his shoulders or arms or wrists. When asked about his pains, he described to the Panel his present symptoms:
(a)    pain in the base of the skull spreading down the spine and into both shoulders;
(b)    inability to lift his arms above shoulder level;
(c)    tingling in the thumb and index fingers, and
(d)    this pain is more troublesome at night and aggravated by work.
Mr Karam also complained of low back pain spreading up the spine into the thoracic area as it worsens and spreading to either loin. He reports as a result, difficulty walking for more than five to 10 minutes at a time.
The medical members of the Panel confirmed with Mr Karam that this was the extent of his accident-related complaints.
Mr Karam reports all his injuries which he then said includes the shoulder movement and pain in his neck and back are worse following the September 2017 accident.

Clinical examination, CAUSATION and assessment

Mr Karam is 173cm tall and weighs 111kg. Dr Guirguis diagnosed the claimant with morbid obesity in 1999. Dr Shatwell who examined the claimant in January 2021 confirmed the claimant was morbidly obese weighing 122kg at that time.
He moves about quite normally and could get on and off the couch without assistance and dress and undress without assistance. When sitting he moved both arms quite freely but does not attempt lift the arms above chest height.

Causation generally

It may be that the claimant has or perceives he has a greater level of pain since the car accident. The Panel notes chapter 15 of the AMA 4 Guides provides a method of assessment of pain however cl 1.38 of the Guidelines says this chapter must not be used and “medical assessors must not make separate allowance for permanent impairment due to pain”.
Mr Karam’s statement suggests the accident was violent and he was thrown around in the car. The Panel notes both biomechanical experts do not support a violent or severe impact. Dr McIntosh describes it as “mild” and Mr Johnson as “moderate”. Noting the photographs, the Panel suggests the impact was, as Dr Keller put it, towards the lower end of the severity of impacts.
Mr Karam’s statement also suggests that immediately before this car accident he had recurring pains but was “improving” and “leading a normal life” and “was not receiving any treatment”. There is certainly no evidence of active treatment in the GPs records after April 2017. There is evidence that the claimant was attending his business and participating in the running of the restaurant before the accident. The Panel is however not satisfied that the claimant’s musculoskeletal health was “improving” before the accident for these reasons:
(a)    in February 2017 he had back pain so severe that he was unable to walk;
(b)    in February 2017 he attended upon his long-term psychiatrist with depression and chronic pain;
(c)    in November 2016 his condition was so bad that he sought the intervention of his doctors who wrote to the Department of Immigration and Border Control seeking to have his sister granted a visa so that she could come to this country and become his carer, and
(d)    in July 2015, a review panel certified that the claimant had a permanent WPI as a result of his October 2011 accident.

Cervical spine

Because of the degree of WPI found by the Panel and the concession by the claimant, the Panel does not intend to dwell on causation in respect of this injury. The Panel accepts, on the basis of his early and consistent complaints, that Mr Karam did sustain a soft tissue injury to his neck which, as Dr Guirgis has indicated, aggravated his previous cervical spine condition caused by the previous accidents and injuries.
Mr Karam has an age-related kyphosis which reduces his effective extension which is reasonable for his age and not a sign of dysmetria in the clinical judgment of the medical members of the Panel. All other movements show a mild restriction which is symmetrical. There was no spasm or guarding observed by Medical Assessors Stubbs and Moloney.
Neurological examination of both upper limbs was normal. Girth of the right arm is 32cm and forearm 30cm the left side 32.5cm and 30cm. The difference is not clinically significant in the judgment of the medical members of the Panel. The reflexes are brisk and symmetrical. Tension tests are negative as is compression test. There is an obvious “Popeye” deformity from the rupture of the long head of biceps, but this does not diminish the biceps jerk as the short head of the biceps is still intact. There is good power flexing and extending the elbows and excellent grip strength in both hands. There is no sensory loss. There is obvious wasting around the shoulder girdle due to the biceps injury.
In terms of impairment the claimant complains of pain in his neck therefore he qualifies for at least DRE category I. To qualify for a DRE II rating in the cervical spine requires:
(a)    Pain with guarding – there was none observed; or
(b)    Non-uniform range of motion (dysmetria) – there was none; or
(c)    Non-verifiable radicular complaints defined in table 8 as:
(i)symptoms (shooting pain, burning sensation, tingling) which,
(ii)follow the distribution of a specific nerve root but no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes. While Mr Karam has pain in the neck which he says radiates to both shoulders with pins and needles and other variable complaints these do not follow a particular nerve root distribution and there are no objective neurological signs of injury.
It therefore follows that in respect of any cervical spine injury sustained by Mr Karam, it could only be categorised currently at DRE I which is a WPI of 0%.

Thoracic Spine

The claimant reported upper back and thoracic complaints of pain to his GP and Dr Guirgis soon after the car accident. The Panel accepts that he sustained an injury to thoracic spine. In the light of the impairment assessment undertaken by the medical members of the Panel in respect of the thoracic spine, the Panel does not intend to address further the issue of whether any of the claimant’s current symptoms in the thoracic spine are caused by the accident or not.
There is a mid-thoracic kyphosis. Apart from the kyphosis there were no abnormal findings and in particular no neurological abnormalities. Movements were full, there was no muscle guarding and no spasm.
In terms of impairment the claimant complains of pain in his upper back therefore he qualifies for at least DRE category I. To qualify for a DRE II rating in the thoracic spine requires:
(a)    pain with guarding – there was none observed by the Medical Assessors; or
(b)    non-uniform range of motion (dysmetria) – there was none; or
(c)    non-verifiable radicular complaints defined in Table 8 as:
(i)symptoms (shooting pain, burning sensation, tingling) which,
(ii)follow the distribution of a specific nerve root but no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes. While Mr Karam has pain it does not follow a specific nerve root distribution and there are no objective neurological deficits.
It therefore follows that, regardless of causation, Mr Karam’s thoracolumbar injury would currently rate at DRE I which is a WPI of 0%.

Lumbar spine

The claimant has a long-standing history of lumbar spine pain. He has had surgery in the 1990s, regular attendances of his GP and Dr Guirguis for back pain. Severe back pain limiting his activities was the reason less than a year before the current car accident for the claimant sponsoring his sister to become his carer. Severe back pain was one of the reasons given for a mobility permit before the accident. Back pain severe enough to require a prescription of strong pain killing medication was reported six months before the car accident.
The Panel notes the reports of the biomechanical experts and accepts the evidence of Mr Johnston that Mr Karam and his circumstances and his accident must be considered and not what the statistics suggest could or should have happened. Mr Karam reported back pain to his GP soon after the accident and the medical certificate attached to the claim form supports this.
The Panel is therefore of the view that the claimant did sustain an injury to his lower back. The Panel accepts the view of Dr Guirgis that this injury was by way of an aggravation of, or further injury to an already injured lumbar spine.
There is a midline lumbar scar of approximately 15cm in length consistent with either an open decompression or posterior spinal fusion which the claimant said occurred in the 1990s.
Mr Karam’s range of lumbar spine motion was mildly reduced but symmetrical. Flexion was achieved by the fingertips to the knees, side bending was fingertips to mid-thigh on both sides and there was limited extension. There is general tenderness in the lower posterior spinal musculature. There was no guarding and no spasm. Knee-jerk and ankle jerks were brisk and symmetrical. The diameter of the thighs was 47 cm and the calf 39cm on both sides. Straight leg raising was 30° on both sides. There are no traction signs and sensation was normal. Mr Karam could get on and off the couch without assistance but would not attempt a sit up.
In terms of impairment the claimant complains of pain in his lower back which has increased in severity according to him since the car accident therefore he qualifies for at least DRE category I. To qualify for a DRE II rating in the lumbar spine Mr Karam would require:
(a)    pain with guarding – no guarding was observed by the Panel; or
(b)    non-uniform range of motion (dysmetria) – there was none; or
(c)    non-verifiable radicular complaints defined in Table 8 as:
(i)symptoms (shooting pain, burning sensation, tingling) which,
(ii)follow the distribution of a specific nerve root but no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes. While Mr Karam has pain it does not follow a specific or particular nerve root distribution and there are no objective neurological signs in the lower limbs.
It therefore follows that if Mr Karam did sustain a thoracic spine injury, it would only rate at DRE I which is a WPI of 0%.

Radiculopathy

For the claimant to satisfy a DRE III rating in any segment of his spine requires radiculopathy which is defined in the Guidelines as:
“1.138 Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots. To conclude that a radiculopathy is present, two or more of the following clinical signs should be found.
(a) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 8 in these Guidelines)
(b) positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 8 in these Guidelines)
(c) muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 8 in these Guidelines)
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
Medical Assessors Stubbs and Moloney have documented their findings for each of the three segments of the sign and on careful assessment could not identify any of the above signs of radiculopathy at any level.
Radiating pain is not one of the five signs of radiculopathy.

Right arm and right wrist

The claimant alleged in the application for assessment, injury to his right arm but that he had no injury to his left. Impairment of the “arm” is undertaken in accordance with Chapter 3 of AMA4 Guides which divides the upper extremity into four regions, the hand, the wrist, the elbow and the shoulder. The rupture of the long head of the claimant’s right biceps will be considered in the right shoulder assessment below.
On examination, Mr Karam’s elbow range of motion was measured from 0-130 degrees (normal is 140 degrees) on both sides and pronation and supination were measured at 60 degrees on both sides (normal is 80 degrees). The medical members of the Panel are of the view that this, along with the claimant’s history given to them of no specific right arm pain demonstrates no evidence of ongoing frank or specific injury causing any impairment to the right arm over the left and therefore no accident-related right arm impairment.
On examination, Mr Karam’s range of wrist motion in flexion and extension was 60 degrees on both sides (normal is 60 degrees). There was bony hypertrophy of both wrists and bossing in the mid-carpal region and some bony swelling around the first metacarpophalangeal joints of both hands. The fingers are short and powerful but have good flexion and nearly full extension in both hands. There are no Heberden’s nodes. Carpal and cubital tunnel provocation tests are negative. Sensation is well preserved. The medical members of the Panel are of the view that these findings, along with the claimant’s history at the time of examination of no specific right wrist pain demonstrates no evidence of ongoing frank or specific injury to the right wrist over the left and therefore and in the light of the 60 degree range of motion, no accident-related right wrist impairment.
As noted above reflexes are brisk and symmetrical and somewhat surprisingly the rupture of the long head of the biceps has not diminished the right biceps reflex.

Shoulders

Causation of shoulder injuries

The Panel notes that shortly after the claimant’s accident, Mr Karam reported pain over both shoulders, right more than the left albeit more specific symptoms in the right shoulder. The Panel notes Dr Guirguis records on 4 October 2017 only right shoulder symptoms however two weeks later, he records left shoulder problems which had allegedly been masked by the other problems.
The Panel notes the opinion of Dr McIntosh that the “loads applied to the Claimant’s cervical spine, thoraco-lumbar spine, shoulder and extremities would have been generally low in magnitude in the collision”. He also says there is no mechanism which would have caused shoulder injuries or “exposed the shoulders to blunt force loading, high inertial forces and / or forced through large or abnormal ranges of motion”.
Mr Johnston was retained by the claimant to respond to this report and agreed that the mechanics of the collision could have led to the aggravation of the claimant’s neck and upper back injury. He also identified a mechanism of injury to the right shoulder.
Noting the claimant was in the driver’s seat with the seat belt over his shoulder and Mr Johnston was of the view that there could have been force sufficient to cause the claimant’s right shoulder to come into contact with the driver’s side B-pillar, the Panel finds that it is plausible the claimant sustained a soft tissue injury to his right shoulder which has aggravated the claimant’s level of pain from the previous right shoulder condition. The Panel does not accept that the forces of the collision (mild or moderate) would be sufficient to cause the “massive” rotator cuff tear reported in the radiology.
Mr Johnston does not provide any explanation for how the left shoulder was injured or any possible mechanism for a left shoulder injury. The Panel notes the claimant has had long standing symptoms in both his shoulders (the right more than the left) and complained of general pains in both shoulders soon after the accident. The Panel however notes that Mr Karam did not report specific and particular symptoms in his left shoulder for several weeks. The Panel therefore accepts the opinion of Dr McIntosh and finds the claimant did not injure his left shoulder in the accident. If he did, then the nature of the injury was, in the clinical judgment of the medical members of the Panel, a minor or mild aggravation resulting in an increase in pain for a short period.

Examination

There is an obvious rupture of the long head of the right biceps visible on examination.
The girth of both upper limbs was equal and normal and forearm strength on both sides is excellent. With the elbows by the side there is weakness in external rotation with a positive lift-off sign in both shoulders. Proximal shoulder musculature is wasted but deltoid strength and bulk is still reasonable (four out of five) with the elbows by the side.
There is marked crepitus in the right shoulder on passive movement. The acromioclavicular joints are enlarged in both shoulders and there is a small soft swelling just above the clavicle on the left-hand side. This is probably a lipoma (benign fatty tumour). There is marked tenderness in the anterior left shoulder along the course of the left long head of biceps tendon. The left long head of biceps tendon is irritable and may rupture in the future.
The examining Medical Assessors were able to review the MRI of the right shoulder taken in 2014 well before the motor vehicle accident. The MRI shows typical features of rotator cuff joint disease (arthropathy). There is significant loss of articular cartilage of the humeral head and the humeral head sits posteriorly in relation to the glenoid in the supine position which Mr Karam was in an MRI was performed. There are multiple cartilaginous loose bodies visible in the joint. There are no rotator cuff remnants of the infraspinatus, supraspinatus and superior sub scapularis tendons and the muscle bellies show marked atrophy. The acromioclavicular joint is calcified and the acromion, acromioclavicular joint is functioning as an articulation with the head of the humerus. There is a large effusion with joint fluid penetrating superiorly into the subacromial space, anteriorly to the subdeltoid space and posteriorly. The effusion hides much of the muscle wasting in the shoulder girdles. The long head of the biceps tendon is still seen in the bicipital groove but displaced laterally and markedly attenuated (reduced in thickness).
The 2014 imaging, the records of Dr Guirgis and Professor Murrell in particular demonstrate to the medical members of the Panel that the claimant’s right rotator cuff disease is long-standing and likely not surgically repairable.

Both of Mr Karam’s shoulders have advanced rotator cuff disease. The imaging reports suggest that the left shoulder rotator cuff disease is not as severe as the right.
The Panel accepts that the claimant has sustained injuries which have aggravated his right and left shoulder pathology.
Surgical management of rotator cuff arthropathy or unrepairable rotator cuff tears is by reverse geometry total shoulder replacement. However, this is required as the consequence of the natural progression of rotator cuff tears and is not in any way influenced by the motor vehicle accident.

Impairment assessment

The appropriate method of impairment assessment for the shoulder is the range of motion method. The measurements obtained by Assessors Stubbs and Moloney using a goniometer are provided in the table below along with the upper extremity impairment (UEI) as follows:

Axis - plane

Left

Upper extremity impairment

Right

Upper extremity impairment

Flexion

90

6

90

6

Extension

30

1

30

1

Abduction

70

5

70

5

Adduction

20

1

20

1

Internal rotation

30

4

30

4

External rotation

25

1

5

2

Total

18% UEI

19% UEI

The above figures convert[23] to a WPI of 11% on the left and 11% on the right.
[23] Using Table 3 on page 3/20 of the AMA 4 Guides.
The Panel is however not satisfied that the claimant’s current impairment is all attributable to the accident because the claimant had a pre-existing left and right shoulder condition which is well documented and the biceps tendon rupture after the accident.

Pre-existing impairment

The Guidelines provide for the assessment of pre-existing impairment as follows:
“1.31 The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored.
1.32 The capacity of a medical assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre‑existing condition. To quote the AMA4 Guides (page 10): ‘For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.”
The Panel has before it the following impairment assessments (leaving aside issues of causation and apportionment) from before the accident:
(a)    Review Panel 22 July 2015
(i)Right 17% UEI           10% WPI
(ii)Left 9% UEI                5% WPI
(b)    Dr Guirgis 7 March 2016[24]
(i)Right 18% UEI           11% WPI
(ii)Left 10% UEI              6% WPI
[24] These figures were calculated by the Panel from the figures in the table in Dr Guirgis’ report dated 9 November 2018 on page 733 of the insurer’s bundle.
The Panel has no cause to doubt the reliability of the clinical information obtained by the previous medical review panel or Dr Guirgis who has had a long-standing professional relationship with the claimant and has provided treatment to the claimant and medico-legal reports to the claimant’s solicitor.
The report of Dr Guirgis dated 9 November 2018 includes the range of movements obtained in an examination on 7 March 2016, one and a half years before the current accident.
The claimant said in his statement and gave a history to the Medical Assessors that while he had pains before the car accident in September 2017, he was improving. This raises the possibility that the measurements obtained by Dr Guirgis in March 2016 may not be an accurate reflection of how the claimant would have presented immediately before the car accident in September 2017. However, the Panel is of the view that it should adopt the findings of Dr Guirgis for the following reasons:
(a)    the March 2016 examination occurred long after the acute injury phase of the claimant’s October 2011 accident and is likely to reflect a settled condition;
(b)    the March 2016 examination by Dr Guirgis occurred one year after the Medical Review Panel’s examination (17 March 2015) and is likely to reflect a further deterioration of the claimant’s shoulder conditions;
(c)    Dr Guirgis wrote to a Federal Government department in November 2016 advising the claimant had functional difficulties with lifting and reaching up and out (which requires flexion) as a result of chronic rotator cuff arthropathy in the right and left shoulder;
(d)    Dr Guirgis also wrote to a Federal Government department in November 2016 advising that the claimant had shoulder problems causing difficulty with lifting, bending and raising his arms above his shoulders (an indicator of continued impairment to flexion), and
(e)    the claimant complained to Dr Guirguis GP on 20 April 2017 of bilateral shoulder pain.
The Panel is therefore satisfied that, at the time of his accident on 19 September 2017 there is objective evidence of a pre-existing symptomatic permanent impairment in Mr Karam’s right shoulder in the order of an 18% upper extremity impairment which converts to 11% WPI. This pre-existing impairment must, in accordance with cls 1.31 and 1.32, be deducted from the current impairment. As the current right shoulder impairment as measured by the Panel is 19% upper extremity impairment converting to 11% WPI, there is no additional impairment regardless of whether the claimant’s current state is caused by the accident or not.
If the claimant’s left shoulder impairment was caused by the accident it would attract a WPI of 5% being the pre-existing impairment of 18% UEI (11% WPI) less the impairment determined by Dr Guirgis of 10% UEI (6% WPI).

Biceps tendon rupture and possible subsequent impairment

The Guidelines also provide for subsequent injuries as follows:
“1.34 The evaluation of permanent impairment may be complicated by the presence of an impairment in the same region that has occurred subsequent to the relevant motor accident. If there is objective evidence of a subsequent and unrelated injury or condition resulting in permanent impairment in the same region, its value should be calculated. The permanent impairment resulting from the relevant motor accident must be calculated. If there is no objective evidence of the subsequent impairment, its possible presence should be ignored.”
The claimant’s biceps tendon ruptured in March 2019. The claimant also had left shoulder surgery in December 2019. The claimant’s submissions allege that the rupture of the claimant’s bicep “was a consequential injury related to his previous injury arising out of this accident”.
It is the view of the medical members of the Panel that having seen the 2014 radiology in particular, the rupture of the right long head of the biceps tendon was inevitable and a normal consequence of the rotator cuff tear arthropathy which had been developing long before the September 2017 car accident. Noting the reports of both Dr McIntosh and Mr Johnston, the Panel doubts that the forces involved in this accident could have led to the rupture of the biceps tendon.
However, the Panel notes the radiology of 15 October 2017 revealed “rupture of the long head of biceps with distal retraction” and the record in Dr Guirguis’ records the day after the accident “severe pain in his neck and right shoulder and arm” which is suggestive of a biceps tendon injury.
What is troubling is that neither Dr Guirgis or Dr Murrell have any record of the biceps rupture (which was obvious to the Medical Assessors during their examination) until March 2019. The Panel notes that the right shoulder ultrasound of 13 March 2019[25] identifies a “full thickness complete tear of the long head of biceps” with surrounding haematoma (bruising) which, in the clinical judgment of the medical members of the Panel is indicative of a recent rupture.
[25] Page 131 of the claimant’s bundle.
Dr Crocker in his report of 28 March 2022 suggests the accident may have resulted in a partial or incomplete rupture of the long head of the biceps tendon which was then further ruptured in the incident with the bags of ice at Mr Karam’s restaurant. On that basis the motor accident therefore had a material contribution to the complete rupture of the tendon.
Noting the Panel’s finding on the degree of impairment related to the claimant’s right arm and shoulder, the Panel does not propose to further consider the issue of causation.
The Panel has before it the following impairment assessments from the claimant’s doctors:
(a)    Dr Guirgis 8 November 2018
(i)Right 23%    UEI       14%      WPI
(ii)Left 13%      UEI       8%       WPI
(b)    Dr Guirguis 21 May 2020
(i)Right 27%    UEI       16%      WPI
(ii)Left 13%      UEI       8%       WPI
(c)    Dr Crocker 13 July 2020
(i)Right 19%    UEI       11%      WPI
(ii)Left 12%      UEI       7%       WPI
(d)    Review Panel 2022
(i)Right 19%    UEI       11%      WPI
(ii)Left 18%      UEI       11%      WPI.
The claimant’s left shoulder was not affected by the biceps rupture and no adjustment in accordance with cl 1.34 needs to occur. The surgery in December 2019 does not appear to have improved the claimant’s function and the level of his impairment long term.
The claimant’s right biceps rupture occurred between Dr Guirgis’ examination in November 2018 (14% WPI) and his May 2020 examination (16% WPI) and the resultant loss of range of motion is likely to be the explanation for the deterioration in shoulder function between those two examinations. However, the right shoulder function appears to have improved over time noting that Dr Crocker found range of motion equating to an 11% WPI in the right shoulder as did the Panel two years later.
Whether the biceps tendon rupture was caused by the accident or not, there is no effect of it upon the claimant’s shoulder impairment demonstrated in the above findings.

Conclusion

The cervicothoracic spine shows a low to normal range of movement. There are wear and tear changes throughout the cervical spine from age. There is no radiculopathy. The motor vehicle accident has not caused any additional neck injury. The claimant’s WPI in his cervical spine is assessed as category DRE I which attracts a 0% WPI regardless of the issue of causation.
The thoracolumbar and lumbosacral spines are stiff and uncomfortable in part from normal ageing but in part due to accelerated degenerative changes from the 1991 and 1996 spinal operations. There is no radiculopathy. The motor vehicle accident has not caused any additional lumbar spine injury. The claimant’s WPI in his thoracic and lumbar spine is assessed as category DRE I which attracts a 0% WPI again, regardless of the issue of causation.
While the Panel is not satisfied that the claimant’s right shoulder rotator cuff tear arthropathy and rupture of the long head of the biceps tendon were caused by the accident, the Panel is satisfied the claimant could have sustained a soft tissue injury to the right shoulder in the accident aggravating a pre-existing problem. However, the claimant’s current WPI in the right shoulder when adjusted for the effects of the pre-existing condition results in a WPI of 0%.
The Panel is not satisfied that the claimant’s left shoulder was injured in the accident and that any rotator cuff arthropathy stems from his pre-existing condition. If the Panel is wrong in that finding, the current impairment of the claimant’s left shoulder would attract a 5% WPI.
The claimant’s right arm and right wrist may have been injured in the accident, but there is no evidence of ongoing injury or any impairment.
In summary, of the injuries assessed by the Panel, the Panel finds:
(a)    cervicothoracic spine         0%;
(b)    thoracolumbar spine          0%;
(c)    lumbosacral spine              0%;
(d)    right shoulder   0% (11% - 11%);
(e)    left shoulder  0% (not caused), and
(f)    right arm and wrist            0%.
As the Panel has found the claimant has no impairment it follows that the assessment of Medical Assessor Wijetunga must be affirmed.
The Panel notes that a finding of 0% WPI does not mean that the claimant did not sustain an injury in the accident or has no ongoing symptoms it simply means that in accordance with the AMA4 Guides and the Guidelines, the injuries he did sustain in the accident, and any ongoing issues he may have, do not result in an assessable impairment.
Motor Accidents Division
Personal Injury Commission

APPENDIX

Table 1 Right shoulder before the accident

Shoulder

Normal

Garvan Mar 2001

Guirgis Aug 2013

Review Panel 2015

Guirgis Mar 2016

Flexion

180

130

100

110

90

Extension

50

20

30

20

Abduction

180

130

100

80

70

Adduction

50

30

20

30

Internal rotation

90

To L1

40

30

40

External rotation

90

40

20

40

Table 2 Right shoulder after the accident

Shoulder

Marsh

Aug 2018

Guirgis

Nov 2018

Guirgis

May 2020[26]

Crocker

July 2020

Keller

Nov 2020

Shatwell

Jan

2021

Flexion

80

70

70

70

90

90

Extension

20

10

0

30

0

20

Abduction

60

50

10

50

45

90

Adduction

20

10

0

30

40

10

Internal rotation

10

30

30

50

90

70

External rotation

10

30

30

10

0

10

[26] The report [AD5] is dated 9 July 2020 but followed an examination on 21 May 2020.

Table 3 Left shoulder before the accident

Left Shoulder

Normal

Dr Garvan Mar 2001

Dr Guirgis Aug 2013

Review Panel 2015

Dr Guirgis Mar 2016

Flexion

180

130

150

130

150

Extension

50

30

50

20

Abduction

180

130

140

120

140

Adduction

50

20

30

30

Internal rotation

90

To L1

60

60

60

External rotation

90

40

70

40

Table 4 Left shoulder after the accident

Left Shoulder

MarshAug 2018

GuirgisNov 2018

MurrellFeb 2020

GuirgisMay 2020

CrockerJul 2020

Keller Dec 2020

ShatwellJan 2021

Flexion

90

120

130

120

125

80

90

Extension

30

15

20

45

10

10

Abduction

20

110

120

35

40

10

Adduction

80

20

130

30

125

60

100

Internal rotation

20

50

To L2

60

60

90

70

External rotation

90

40

40

50

55

10

20

Axis - plane	Left	Upper extremity impairment	Right	Upper extremity impairment
Flexion	90	6	90	6
Extension	30	1	30	1
Abduction	70	5	70	5
Adduction	20	1	20	1
Internal rotation	30	4	30	4
External rotation	25	1	5	2
Total		18% UEI	19% UEI

Shoulder	Normal	Garvan Mar 2001	Guirgis Aug 2013	Review Panel 2015	Guirgis Mar 2016
Flexion	180	130	100	110	90
Extension	50	20	30	20
Abduction	180	130	100	80	70
Adduction	50	30	20	30
Internal rotation	90	To L1	40	30	40
External rotation	90	40	20	40

Shoulder	Marsh Aug 2018	Guirgis Nov 2018	Guirgis May 2020[26]	Crocker July 2020	Keller Nov 2020	Shatwell Jan 2021
Flexion	80	70	70	70	90	90
Extension	20	10	0	30	0	20
Abduction	60	50	10	50	45	90
Adduction	20	10	0	30	40	10
Internal rotation	10	30	30	50	90	70
External rotation	10	30	30	10	0	10

Left Shoulder	Normal	Dr Garvan Mar 2001	Dr Guirgis Aug 2013	Review Panel 2015	Dr Guirgis Mar 2016
Flexion	180	130	150	130	150
Extension	50	30	50	20
Abduction	180	130	140	120	140
Adduction	50	20	30	30
Internal rotation	90	To L1	60	60	60
External rotation	90	40	70	40

Left Shoulder	MarshAug 2018	GuirgisNov 2018	MurrellFeb 2020	GuirgisMay 2020	CrockerJul 2020	Keller Dec 2020	ShatwellJan 2021
Flexion	90	120	130	120	125	80	90
Extension	30	15	20	45	10	10
Abduction	20	110	120	35	40	10
Adduction	80	20	130	30	125	60	100
Internal rotation	20	50	To L2	60	60	90	70
External rotation	90	40	40	50	55	10	20

[2022] NSWPICMP 531

12 December 2022