Karnavas v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPICMP 441
•23 June 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Karnavas v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 441 |
CLAIMANT: | Karnavas |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
REVIEW PANEL | |
MEMBER: | Terence O’Riain |
MEDICAL ASSESSOR: | David Gorman |
MEDICAL ASSESSOR: | Shane Moloney |
DATE OF DECISION: | 23 June 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; permanent impairment; review of Medical Assessment Certificate (MAC); nexus between motor accident and lumbar spine condition; denial based on first note of lumbar spine complaints being one year after the accident and no contemporaneous complaints recorded; frank right shoulder injury with rotator cuff tear, cervical spine pain, and scarring; re-examination; Held – the Review Panel was satisfied that the accident caused or materially contributed to lumbar spine pain assessed as DRE I; Panel assessed 5% permanent impairment for right shoulder and scarring; MAC revoked; new certificate issued. |
DETERMINATIONS MADE: | Replacement certificate issued under s 7.26(7) of the Motor Accident Injuries Act 2017 1. The Review Panel found the injuries caused by the motor accident are different to those found in Medical Assessor McGrath’s assessment certificate dated 29 July 2024. 2. Accordingly, the Review Panel revokes that certificate and issues a new Permanent Impairment Certificate. 3. The Review Panel found that the motor accident caused the following injuries and assessed them as giving rise to 5% whole person impairment: • cervical spine – soft tissue injury; • right shoulder – rotator cuff tear; • surgical scarring – right shoulder, and • lumbar spine – soft tissue injury; aggravation of degenerative disease. 4. The accident caused injuries with total percentage whole person impairment not greater than 10%. |
R
PERSONAL INJURY COMMISSION
MOTOR ACCIDENTS DIVISION
REVIEW OF MEDICAL ASSESSMENT
Matter number: | R-M20285/23 |
Claimant: | Nick Karnavas |
Insurer: | IAG Ltd t/as NRMA Insurance |
Review Panel: | Member Terence O’Riain Medical Assessor David Gorman Medical Assessor Shane Moloney |
Date of decision: | 23 June 2025 |
CERTIFICATE OF DETERMINATION
Review Panel Assessment of Degree of Permanent Impairment
Replacement certificate issued under s 7.26(7) of the Motor Accident Injuries Act 2017
The Review Panel found the injuries caused by the motor accident are different to those found in Medical Assessor McGrath’s assessment certificate dated 29 July 2024.
Accordingly, the Review Panel revokes that certificate and issues a new Permanent Impairment Certificate.
The Review Panel found that the motor accident caused the following injuries and assessed them as giving rise to 5% whole person impairment:
• cervical spine – soft tissue injury;
• right shoulder – rotator cuff tear;
• surgical scarring – right shoulder, and
• lumbar spine – soft tissue injury; aggravation of degenerative disease.
The accident caused injuries with total percentage whole person impairment not greater than 10%.
REASONS
Background
The claimant, Nick Karnavas was injured in an accident on 28 July 2020 during the Covid-19 pandemic.
He was driving and lined up in stationary traffic when the insured vehicle collided with his rear. The police and ambulance did not attend. His car was initially drivable but was later written off by the property damage insurer.
Mr Karnavas remembered that he could hardly move the right arm. He used his left arm to open the door to speak to the insured driver.
He attended to an urgent personal matter before going to St Vincent’s Hospital in Darlinghurst where he was examined. The emergency doctors were busy dealing with the pandemic and focussed on the right shoulder.
Soon after he saw his general practitioner (GP) whose attention was also focussed on the right shoulder and neck region. Scans demonstrated a right shoulder full thickness rotator cuff tear.
The insurer is responsible for loss arising from the claimant’s injuries from this accident under the Motor Accident Injuries Act 2017 (MAI Act).
The insurer and the claimant are in a dispute about the claimant’s permanent impairment from injuries caused by this accident.[1]
[1] See heading Legislative framework
The claimant applied to the Personal Injury Commission (Commission) to resolve this dispute.
The following injuries were referred by the Commission for assessment:
· cervical spine – canal stenosis, cord indentation, foraminal stenosis, narrowing of spinal canal, loss of cervical lordosis, disc bulge, disc protrusion, radiculopathy, musculoskeletal injury, soft tissue injury;
· lumbar spine – musculoskeletal injury, disc injury, soft tissue injury;
· right shoulder – full thickness acute massive rotator cuff tear with biceps pathology, supraspinatus and infraspinatus tendon tears, subacromial bursitis, trapezius and shoulder joint injury, scarring, musculoskeletal injury, soft tissue injury, biceps tendinopathy, and
· scarring to right upper extremity.
On 29 July 2024 Medical Assessor David McGrath issued a certificate, which assessed the permanent impairment at 5%, only in respect of the right shoulder. He also found the accident did not cause a lumbar spine injury.
The claimant applied for review on the basis there was a material error in the assessment.
On 4 October 2024, the President of the Commission’s delegate constituted this Review Panel (the Panel) to review the original certificate (the Review).
This Panel met on 10 December 2024 to discuss how this matter will proceed.
The Panel noted at that meeting that the evidence showed in 2023 the claimant’s treating neurosurgeon proposed cervical and lumbar spine surgery. The Panel sought any submissions and reports addressing any treatment dispute.
The Panel decided to re-examine the claimant. Medical Assessor Gorman agreed to examine the claimant on the Panel’s behalf on 21 February 2025 at the Commission’s medical suites in Sydney.
Legislative framework
Schedule 2(2)(a) of the MAI Act declares:
“the degree of permanent impairment of the injured person that has resulted from the injury caused by the accident (including whether the degree of permanent impairment is greater than a particular percentage)” is a medical assessment matter”
If there is a dispute about the degree of permanent impairment of an injured person being sufficient to award non-economic loss damages i.e. greater than 10%, then those damages may not be awarded unless the degree of permanent impairment has been assessed by a Medical Assessor under Division 7.5: s 4.12(1) MAI Act.
Division 7.5 of the MAI Act provides for the Commission to assess declared medical disputes including provisions relevant to an original medical assessment and for appointing Panels to review those medical assessments.[2]
[2] Sections 7.20, 7.24 and 7.26.
Parties may apply to the President of the Commission for review of a medical assessment on grounds that the assessment “was incorrect in a material respect” (sub-s (1)). If the President, or his delegate is satisfied “there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect” then the President refers the application to a review panel consisting of a Member of the Commission and two Medical Assessors (sub-ss (2) and (2B)) to reassess the dispute.
The review is not confined to the issues raised in the application (or the reply) but is “a new assessment of all the matters with which the medical assessment is concerned” (sub-s 3A).
Rule 128 of the Personal Injury Commission Rules 2021 (the Rules) permits the Panel to determine its own proceedings and the rules of evidence do not bind the Panel, which may inquire into relevant matters as it thinks fit, while observing procedural fairness.
The method of assessing the degree of impairment is dealt with in s 7.21, which is in the following terms:
“7.21 Assessment of degree of permanent impairment
(1) The assessment of the degree of permanent impairment of an injured person for the purposes of this Act is to be made in accordance with the Motor Accident Guidelines. The assessed degree of permanent impairment is to be expressed as a percentage.
(2) Impairments that result from more than one injury arising out of the same accident are to be assessed together to assess the degree of permanent impairment of the injured person.
(3) In assessing the degree of permanent impairment, regard must not be had to any psychiatric or psychological injury, impairment, or symptoms, unless the assessment of the degree of permanent impairment is made solely with respect to the result of a psychiatric or psychological injury.
(4) A medical assessor may decline to make an assessment of the degree of permanent impairment of an injured person until the assessor is satisfied that the impairment caused by the injury has become permanent.”
Pre-existing impairment is addressed in cls 6.31-6.33 of the Motor Accident Guidelines (Guidelines). Clause 6.34 deals with subsequent injuries.
The Guidelines state as follows with respect to causation of injury:
“Causation of injury
6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.
6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical, or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the accident. The accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
It is necessary for the Panel to consider whether the accident caused or contributed to the diagnosed condition: Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372 at [75]. The accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible: Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 at [50]. Further, the provisions of the Civil Liability Act 2002 apply, in particular s 5D and s 5E.
ASSESSMENT UNDER REVIEW
Medical Assessor McGrath’s certificate dated 29 July 2024 noted the accident was an unexpected rear end collision with the insured driver not braking before the impact. The claimant had immediate right shoulder pain after the accident, which have required two operations to repair his rotator cuff tear. He also developed mild whiplash or neck pain.
The Medical Assessor’s examination showed a uniform mildly restricted range of neck motion in all directions.
The claimant’s lumbar spine demonstrated a mildly restricted range of motion, more in extension than flexion. The movement was asymmetrical.
The Medical Assessor did not assess any DRE for the spinal conditions.
Medical Assessor McGrath’s right shoulder testing revealed loss of range of motion.
Most of the claimant’s treatment has been a shoulder rehabilitation program with episodic spinal physiotherapy.
The Medical Assessor noted there were no lower back pain notes created until 28 July 2021 being just over one year after the accident, and the Medical Assessor did not accept that condition as causally related to the accident.
Medical Assessor McGrath found that the accident caused soft tissue injuries to the cervical spine, shoulder rotator cuff tear with subsequent scarring arising from the shoulder surgery.
He assessed 5% whole person impairment (WPI) for the right shoulder, and 0% for the cervical spine and scarring. Medical Assessor McGrath incorrectly utilised the Motor Accident Permanent Impairment Guidelines, which applies to injuries before 1 December 2017, instead of the Guidelines.
EVIDENCE
Treatment providers’ records
Shoulder specialist Dr Timothy Yeoh's letters to the claimant's GP commence on
31 July 2020. That letter includes an explanation as to why the ultrasound depicted an acute change to underlying chronic tearing in the right shoulder.
The claimant presented as being barely able to move his shoulder, which the surgeon explained as behaving differently to chronic tearing where a shoulder may be able to move relatively normally. The MRI taken in late August 2020 confirmed the claimant's shoulder had an acute massive rotator cuff tear with biceps pathology.
Dr Yeoh operated on the claimant on 7 September 2020, which included inserting hardware to anchor the shoulder.
Three months after the surgery on 11 December 2020 Dr Yeoh commented in correspondence to the GP that the claimant's shoulder was progressing nicely, although he had no capacity for work.
On 9 April 2021 Dr Yeoh informed the GP that rotation had improved although glenohumeral motion was not normal yet.
On 16 June 2021 the claimant presented to Dr Yeoh after his physiotherapist was concerned about clicking in the affected shoulder. He was to undergo a further MRI to find the cause.
On 6 September 2021 Dr Yeoh advised the GP after he saw the claimant on telehealth that the clicking was still present, but one of the anchors was prominent with dense bursitis. The surgeon suggested further surgery to remove the anchor plus synovectomy. The claimant was willing to undertake the surgery.
The next correspondence was on 24 March 2023, which expressed there was urgency required to remove the anchor. That surgery took place on 10 May 2023.
It is not clear whether the claimant continued to consult Dr Yeoh, because the last correspondence in the bundle is dated 23 May 2023.
The claimant’s GP also referred him to orthopaedic surgeon Dr Ralph Stanford, who wrote a report dated 22 December 2020 opining that apart from the rotator cuff injuries requiring surgery that there was no nerve root compromise in the neck.
The neck pain was non-specific and may have reflected accident aggravated degenerative change. He did not find spinal cord compromise but sought an MRI to confirm that. He advised against neck surgery.
Neurosurgeon and spinal surgeon Dr James Laban's treating report dated 9 August 2023 notes that the claimant's cervical and lower back pain dated from the accident and that he had no significant medical history before the accident. That doctor was concerned that the claimant's condition could grow worse and that lumbar spine surgery was recommended.
On 25 May 2024 the claimant's GP referred the claimant again to Dr Laban to examine the claimant for treatment options for lower back pain.
Dr Laban wrote to the GP on 29 May 2024 where he diagnosed C4/5, C5/6 moderate canal and bilateral foraminal stenosis, L4/5 grade 1 degenerative spondylolisthesis with disc degeneration and severe bilateral facet arthropathy and L6/S1 retrolisthesis with degenerative disc disease and bilateral foraminal stenosis (right worse than left).
The claimant had ongoing radiating pain into the calves and ankles bilaterally. The surgeon noted the onset of lumbar spine pain began after the accident.
A lumbar spine MRI confirmed this specialist’s diagnosis. Dr Laban offered L4/5 and L5/S1 anterior lumber interbody fusion and cervical surgery. This surgery was subject to the insurer approving funding.
Medico-legal evidence
Dr Patrick’s report dated 24 January 2023 considered the mechanism of the accident was sufficient to cause the right shoulder injury with lumbar and cervical spine injuries.
He opined that the claimant would continue to need treatment and domestic assistance for these body parts including scans, but he was doubtful about whether right shoulder synovectomy was advisable.
Inexplicably, he deducts 15% WPI, as a pre-existing cervical spine condition, to leave 0%. He also deducts 0.5% from the lumbar spine WPI to make 5%. There was no evidence referred to in the report, which would have enabled this medicolegal specialist to calculate pre-existing impairment in accordance with the Guidelines.
He assessed the right shoulder as 8% WPI.
Orthopaedic surgeon Dr Robert Briet’s report dated 3 November 2021 refers to his disagreement with treating orthopaedic surgeon Dr Yeoh on the need for surgery.
Dr Briet's opinion was the right shoulder conditions were age and constitutionally related, rather than the accident.
The doctor judged the accident to be relatively minor, despite not having any damage details to judge that. In particular, he did not refer to the police report, which described a major traffic accident, although the police did not visit the scene. In his opinion the claimant only suffered temporary aggravation in the right shoulder.
The doctor rebukes the insurer for paying for the initial surgery but approves of the subsequent surgery to remove hardware because it is related to a complication arising from the earlier surgery.
He disputed a connection between the need for a synovectomy and the accident. Dr Briet confirmed the shoulder conditions restricted the claimant and he must avoid any significant loaded work above chest height or forceful or repetitive use of either arm.
Orthopaedic surgeon Dr Steven Rimmer's report dated 19 October 2023 expressed bemusement that although the claimant had lumbar spine complaints these had not been referred for treatment or assessment. He noted continuing problems with the cervical spine and right shoulder.
Dr Rimmer, without explaining what he based his opinion on, diagnosed abnormal illness behaviour and malingering.
Apart from the right shoulder he did not concede that the claimant had been injured. He advised that the claimant's treatment should be withdrawn immediately. His opinion was, despite two bouts of shoulder surgery that the claimant's incapacity should have ceased six months after the initial routine right rotator cuff repair.
The insurer requested an assessment whether and to what extent the claimant's incapacity related to an opioid addiction noted in the GP’s clinical records on 23 November 2022, but this doctor only referred to the claimant not mentioning this.
Dr Rimmer assessed 0% WPI for the cervical and lumbar spine and 2% for the right shoulder.
Other evidence
The claimant's statement dated 21 July 2023 is mostly addressed to the damages claim but confirmed the circumstances of the accident on 28 July 2020. He alleges that he immediately felt pain in the neck and lower back, but it was most noticeable in the right shoulder referring into the neck. He also suffers psychological conditions as a result of the accident.
When he presented at St Vincent’s Hospital later that day, he noted the emergency Department was very busy during the COVID-19 pandemic. He felt the doctors did not have time to properly assess his injuries. They initially diagnosed soft tissue injuries and missed frank injuries to his right shoulder.
Submissions
Claimant’s submissions
The claimant's submissions dated 21 November 2024 in support of physical injuries claim refers to how the claimant's treating doctors initially concentrated on his injured right upper extremity, but the spinal conditions were initially overlooked.
On 22 December 2020 the claimant completed a pain diagram for Dr Stanford which depicted the right arm, shoulder, neck and lower back as being painful areas since the accident.
The claimant's submissions to the Commission for review dated 4 September 2024 referred to Medical Assessor McGrath failing to adequately consider and engage with all the relevant material when he assessed whether the claimant's lumbar spine injury was causally related to the accident.
Further the claimant alleged the Medical Assessor failed to deal with the inconsistencies in his thinking in contrast to the claimant's medicolegal evidence, especially Dr Patrick's assessment dated 24 January 2023.
There were insufficient reasons or an incorrect path of reasoning.
Dr Patrick assessed the lumbar spine as having permanent impairment arising from the accident.
In respect of the lumbar spine causation dispute the claimant's solicitors point out that the claimant's treating orthopaedic surgeon provided records including a pain diagram completed on 22 December 2020, which included markings on the lower back area of the diagram. This constituted a material error in Medical Assessor McGrath's reasons, because he did not address this evidence.
The claimant further alleges the Medical Assessor did not question the claimant about
Dr Patrick finding 8% WPI for the claimant shoulder injury and 5% for the claimant's cervical injury, and why he found less or no permanent impairment.
The claimant’s solicitor also referred to Dr Laban’s opinions.
Presidential delegate Stephanie Wigan decided on 4 October 2024 that she accepted the claimant's submissions that the Medical Assessor had erred when he failed to refer to the pain diagram.
Insurer's submissions The insurer's submission was that the claimant should not have been referred for permanent impairment assessment, because of recent shoulder surgery and the need for further treatment.
The claimant only referred to having “massive pain running from my shoulder to my neck on the right side” in his application for personal injury benefits dated 20 August 2020 lodged soon after the accident.
Dr Ralph Stanford reports the claimant’s neck pain to be “non-specific” with the claimant’s symptoms reflecting an underlying degenerative change, unrelated to the accident. He also noted potential for spinal cord compression based on the claimant’s pre-existing degenerative diseases.
Referring to a right shoulder ultrasound on 29 July 2020 which is reported as demonstrating an acute, chronic full thickness cuff tear involving particularly supraspinatus as well as subscapularis and biceps tendinopathy and, a right shoulder MRI taken on 31 August 2020 reported as confirming an acute massive rotator cuff tear with biceps pathology, requiring urgent rotator cuff repair and biceps tenodesis, Dr Briet is of the opinion that these scans did not demonstrate acute injuries.
Both the GP Dr Viswanathan Krishnan, and Dr Briet diagnosed a right shoulder soft tissue injury.
Dr Briet noted tenderness over the right shoulder impingement area and limited internal rotation from pain at the end of the range, however he found no evidence of generalised shoulder irritability.
The claimant only sustained a soft tissue injury to the right shoulder.
As mentioned above, the claimant also underwent a further surgery on 10 May 2023 in the form of a decompression, coracoacromial ligament division acromioplasty on the right shoulder.
Dr Yeoh’s opinion was that the claimant required further treatment in the form of physiotherapy in order to regain range of motion and strengthen the right shoulder following the surgery.
There was then no evidence to suggest the claimant has engaged in further treatment or reached maximum medical improvement.
The insurer refers to Dr Patrick's assessment of 5% permanent impairment for the lumbar spine.
The insurer disputed any link between the accident and the lumbar spine complaints based on the first note of the complaint being made on 28 July 2021 and not being mentioned in the application for personal injury benefits or in his GP’s notes.
The claimant's scarring should not rate higher than 1% on the TEMSKI scale.
RE-EXAMINATION
Who attended the assessment
Mr Karnavas attended unaccompanied on Medical Assessor Gorman at the Commission’s medical suites.
Pre-accident medical history and relevant personal details
Mr Karnavas is a right-handed 54-year-old man.
He is single and does not have children. He lives alone but cares for his mother who has dementia.
He vapes and has around one cigarette per day.
He was drinking alcohol after the accident to help him sleep. He has ceased now.
Mr Karnavas was involved in a minor motor vehicle accident as a pedestrian in the mid-1990s. In the accident, he fractured his nose and lost teeth.
As a teenager, he fractured his right femur cycling.
He had some kidney stones 20 years ago.
He had a laceration of his right index finger and cannot straighten it – this was covered by Workers Compensation.
Mr Karnavas denies any previous injuries to his spine or right shoulder.
After high school, he completed a technical course in shopfitting and detailed joinery. He stayed in this area of work his whole career. He worked in construction and factories.
In his last occupation, he was assembling kitchens for factories.
Following the accident, he has been unable to successfully return to this heavy physical labour.
Mr Karnavas previously played touch football and cricket.
History of the accident
Mr Karnavas was involved in an accident on 28 July 2020 at 11.00am.
He was on his way to meet the Greek Orthodox priest who was to bless his father’s grave.
He was in a stationary line of traffic when he was hit from the rear. He was in a 60 kmph zone. Police and ambulance did not attend the site. His car was drivable but was later written off by the property damage insurer.
History of symptoms and treatment following the accident
Mr Karnavas states that he could hardly move the right arm and needed to open the door with the use of his left hand. After exchanging details with the other driver, he continued to drive to his event by using the left hand on the steering wheel.
After the meeting with the priest had finished, he attended St Vincent’s Hospital where he was examined and had X-rays of the right shoulder.
He saw his GP whose attention was also focussed upon the right shoulder and neck region. He received an ultrasound investigation demonstrating an “acute on chronic” full thickness cuff tear. A follow up MRI scan confirmed the shoulder tear.
Medical Assessor Gorman noted in the “Application for personal injury benefits” dated
2 August 2020 that the claimant reported pain running from the right shoulder to the right side of the neck. The lumbar spine was not mentioned.Mr Karnavas reported that his back pain “started a few days after the accident”.
His shoulder was in a sling for a few months.
He came under the care of an orthopaedic surgeon, Dr Yeoh, who performed a rotator cuff repair on 7 September 2020.
Mr Karnavas participated in a rehabilitation program mostly focussing on the shoulder and neck but also involving the lower back.
On 22 December 2020 he saw Dr Ralph Stanford (spinal surgeon) at Prince of Wales Hospital. He reported Mr Karnavas to have normal head and neck posture with limited neck flexion from posterior neck pain. He had full range of neck rotation which did not produce any arm pain along with no sensory change in the upper limbs. He suggested that the neck pain to be “non-specific” with the claimant’s symptoms reflecting an underlying degenerative change, unrelated to the subject accident.
Dr Stanford focussed on the neck pain but in his records the low back was indicated on a pain diagram.
On 28 July 2021 he reported low back pain to an occupational therapist.
On 3 November 2021 Dr Robert Briet (orthopaedic surgeon) reported as an IME that there was tenderness in the neck and opined the claimant suffered from a minor soft tissue injury to the neck and shoulder from a relatively minor accident.
Dr Briet was of the opinion that although the initial ultrasound report of the claimant’s right shoulder demonstrated some bursitis, there was no indication of any acute extension of the rotator cuff. As a result, he formed the view that the claimant’s pre-operative ultrasound and MRI reports demonstrate no acute changes.
Dr Briet’s IME report does not mention lumbar pain.
Mr Karnavas was reviewed by Dr Yeoh after a late complication to his surgery. Apparently, one of the fixation screws had moved and needed to be removed entirely.
On 10 May 2023 Dr Yeoh performed a decompression, coracoacromial ligament division and acromioplasty. Again, Mr Karnavas returned to a rehabilitation program.
IME Dr Stephen Rimmer reported on 19 October 2023 that the lumbar spine was “sore”. Examination of the lumbar spine revealed some limitation in flexion and extension with no radiculopathy.
His lumbar spine gradually became more symptomatic and he had an MRI scan in May 2024. He also had a consultation with a neurosurgeon, Dr Laban, who has requested surgery to the neck and lower back. He has not had these procedures.
Details of any relevant injuries or conditions sustained since the accident
Nil.
Current symptoms
His main symptoms are in the right shoulder. He reports that he has no power. He said that he has trouble even lifting 1kg.
He gets low back pain. The pain is axial usually as well as down the right side. Occasionally he has left sided lumbar pain.
The pain radiated to the buttocks and calves on both the right and left sides.
His neck is also painful on occasions.
He said that after the consultation with Medical Assessor Gorman and the travel involved, he would need to lie down because of the low back pain.
The low back pain stops him running now.
Current and proposed treatment
He continues on Nurofen and Panadol as needed. He has taken other anti-inflammatories from time to time as well.
He has not had physiotherapy for a couple of months. He is doing home exercises mainly focussed on the shoulders including wall push-ups and TheraBand exercises.
CLINICAL EXAMINATION
General presentation
He was a well looking man with a height of 165cm and a weight of 79kg – he reported that his weight was 64kg at the time of the accident.
His abdomen was prominent due to divarication of the recti.
Cervical spine
Mr Karnavas has a mildly restricted to ¾ normal uniform range of motion in the neck in all planes. There was no dysmetria. No muscle spasm or guarding was observed.
He had normal deep tendon reflexes, power and sensation. He did not have radiculopathy.
There was some tingling on occasions in the hands but none present at this examination. He did not have non-verifiable radicular complaints.
Lumbar spine
Mr Karnavas had normal range of movement in flexion, extension and lateral flexion to the left and right. There was no dysmetria.
Neurological examination of the lower limbs was normal. He had normal deep tendon reflexes, power and sensation. There were no signs of muscular atrophy. He did not have radiculopathy.
There was some tingling on occasions in the feet but none present at this examination. He had bilateral radiation of pain to his knees. He did not have non-verifiable radicular complaints.
Upper extremities
There were two scars over his anterior right shoulder. One was 6cm and the other 15cm. They were pale and somewhat depressed. They were not adherent.
There was some loss of bulk of the right biceps as outlined below:
| Circumference in cm | Right | Left |
| Upper arm 10cm above lateral epicondyle | 30 | 32 |
| Forearm 5 cm below lateral epicondyle | 29 | 28 |
He had loss of range of motion of the right shoulder. Left shoulder movement was normal.
He could reach the occiput bilaterally. On the right he could reach the spinous process of T12 and on the left the spinous process of T7.
The active range of motion of the shoulders was observed, measured with a goniometer and tabulated below:
| Shoulder movements | Right (degrees) | Left (degrees) |
| Flexion | 120 | 180 |
| Extension | 50 | 50 |
| Adduction | 40 | 50 |
| Abduction | 130 | 170 |
| Internal rotation | 80 | 80 |
| External rotation | 90 | 90 |
Comments on consistency
Mr Karnavas was consistent and cooperative.
Summary of relevant radiological and medical imaging and other investigations
On 14 May 2024, MRI lumbar spine - degenerative multilevel arthrosis. Retrolisthesis at L5/S1 and anterolisthesis at L4/5.
On 29 July 2020, ultra sound right shoulder - demonstrated an acute, chronic full thickness cuff tear involving particularly supraspinatus as well as subscapularis and biceps tendinopathy.
On 31 August 2020, MRI right shoulder - confirmed an acute massive rotator cuff tear with biceps pathology, requiring urgent rotator cuff repair and biceps tenodesis.
On 30 November 2020, CT cervical spine - demonstrates no acute bony injury, moderately marked canal stenosis at C5/6 and to a lesser extent, C4/5 with potential cord indentation. There is moderately marked foraminal stenoses at C5/6 exit foramina.
PERMANENCY OF IMPAIRMENT
Statement about permanent impairment
The determination as to permanent impairment is made in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) (AMA4 Guides) and the Guidelines version 9.3. Permanent impairment is defined in the AMA4 Guides (p 315) as follows:
“Permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment. A permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment.”
It is now almost five years since the accident, but his revision shoulder surgery was May 2023, two years ago. His injuries are stable and a permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment.
DETERMINATIONS - PERMANENT IMPAIRMENT
Diagnosis and reasons
• cervical spine – soft tissue injury;
• right shoulder – rotator cuff tear;
• surgical scarring – right shoulder, and
· lumbar spine – soft tissue injury; aggravation of degenerative disease.
Summary of injuries referred for assessment
The following injuries WERE caused by the accident:
• cervical spine – soft tissue injury;
• right shoulder – rotator cuff tear;
• surgical scarring – right shoulder, and
· lumbar spine – soft tissue injury; aggravation of degenerative disease.
Permanent impairment
The determination as to permanent impairment is made in accordance with the AMA4 Guides and Part 6 of the Motor Accident Guidelines.
Cervical spine
There is no asymmetry in range of motion. There are no non-verifiable radicular complaints. Using Table 73 on page 110 of the AMA4 Guides he has a DRE category I impairment giving him a WPI of 0%.
Lumbar spine
There was no dysmetria and no non-verifiable radicular complaints. There was no radiculopathy. There was no muscle spasm. Using Table 72 on page 110 of the AMA4 Guides he has a DRE category I impairment giving him a WPI of 0%.
Right shoulder
Using AMA4 Guides:
· Figure 38; Flexion to 120° - 4% UEI, Extension to 50° - 0% upper extremity impairment (UEI);
· Figure 41; Abduction to 130° - 2% UEI, Adduction to 30° - 1% UEI, and
· Figure 44; Internal rotation 80° - 0% UEI, External rotation to 90° - 0% UEI.
This equates to 6% UEI. Using Table 3 on page 20 this converts to 4% WPI.
The Panel noted earlier permanent impairment assessments were in a higher range. The reduced permanent impairment is probably due to the claimant persisting with his own rehabilitation and past treatment being effective.
Skin Scarring (TEMSKI)
There was scarring about the right shoulder from his surgeries. They were visible. He is conscious of scarring. They are paler than the surrounding skin. They are somewhat depressed. Suture marks are barely visible. Location is not clearly visible (by others) with usual clothing. He is able to easily locate the scars. There is no effect on any ADL. There is no treatment required. There is no adherence.
Under the principle of "best fit", a 1% WPI is appropriate.
Permanent impairment table
| Body Part or System | AMA Guides/ Guidelines References (chapter/ page/table) | Permanent (YES/NO) | Current %WPI* | %WPI* from pre-existing OR subsequent causes | %WPI* due to accident |
| Cervical spine | Table 73 on page 110 | Yes | 0% | 0% | 0% |
| Lumbar spine | Table 72 on page 110 | Yes | 0% | 0% | 0% |
| Right shoulder | Figures 38, 41 and 44; Table 3 on page 20 | Yes | 4% | 0% | 4% |
| Scarring (TEMSKI) | TEMSKI scale | Yes | 1% | 0% | 1% |
* %WPI = percentage whole person impairment
Apportionment
All of the calculated impairment is the outcome of the accident.
Pre-existing/subsequent impairment
There was no pre-existing impairment.
Panel deliberations
The Panel met again on 28 March 2025.
The Panel adopted Medical Assessor Gorman’s examination and permanent impairment assessment.
Causation and reasons
Mr Karnavas was involved in an accident on 28 July 2020. This was an unexpected rear-end collision. He had no warning of the impact and reportedly the other driver did not brake prior to impact. Immediately after the accident he could hardly move his right shoulder and subsequently received two surgeries for a rotator cuff tear.
In addition to the right shoulder injury, he developed neck pain consistent with “whiplash”.
He states the lower back pain was present from a few days after the accident, although it was not reported in the records until he saw Dr Stanford in December 2020 (five months after the accident) when it was only filled out on the pain diagram – Dr Stanford’s report did not mention the lumbar spine. There were no investigations until 2024.
However, the trajectory of his lumbar spine condition is explicable because he would have decreased his overall conditioning in the years after the accident. He has a prominent abdomen suggesting poor core stability. He has very significant degenerative disease seen on the scan in 2024. This combination is likely to have led to worsening lumbar pain in the years after the accident.
The Panel notes that despite delayed medical recording the accident mechanism described could have caused a lumbar spine injury or aggravated existing degenerative changes. The clearest risk factor is the accident.
Mr Karnavas’ credit or reliability was not raised in submissions and he was consistent in his presentation. He explained that the treating doctors’ attention was on his acute shoulder and neck condition so he was not focused on the lumbar spine.
The lumbar spine pain was causally related to the accident because the Panel accepts that there was lumbar spine pain from a few days after the accident and the pain persisted as
Mr Karnavas became more deconditioned due to inactivity.His inactivity was forced on him due to the accident, as his acute and undisputed shoulder injury has prevented him from returning to work.
The Panel finds it was probable the accident made at least a more than negligible contribution to aggravating his degenerative disease which persisted and remains.
On the balance of probabilities, the Panel finds that the lumbar spine was injured in the motor vehicle accident or aggravated an existing degenerative condition.
CONCLUSION
The Review Panel found the injuries caused by the motor accident are different to those found in Medical Assessor McGrath’s assessment certificate dated 29 July 2024.
Accordingly, the Review Panel revokes that certificate and issues a new Permanent Impairment Certificate.
The Review Panel found that the motor accident caused the following injuries and assessed them as giving rise to 5% WPI:
• cervical spine – soft tissue injury;
• right shoulder – rotator cuff tear;
• surgical scarring – right shoulder, and
• lumbar spine – soft tissue injury; aggravation of degenerative disease.
The accident caused injuries with total percentage WPI not greater than 10%.
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