Keverian v Insurance Australia Ltd

DETERMINATION OF REVIEW PANEL
CITATION:	Keverian v Insurance Australia Ltd [2022] NSWPICMP 294
CLAIMANT:	Varoujan Keverian
INSURER:	Insurance Australia Ltd
REVIEW PANEL:	Principal Member John Harris Medical Assessor Leslie Barnsley Medical Assessor Rhys Gray
DATE OF DECISION:	19 July 2022
CATCHWORDS:	MOTOR ACCIDENTS – The claimant purportedly suffered injury in a motor accident on 24 August 2015; the present application related to numerous past and future treatment and care disputes; a Medical Assessor previously assessed the claimant at 8% permanent impairment resulting from the motor accident; the Medical Assessment in the present dispute was that none of the treatment or care disputes resulted from the motor accident; Held – the previous findings on impairment were not binding on this Panel on the issue of causation; Owen v Motor Accidents Authority, Allianz Australia Insurance Ltd v Girgis, Brown v Lewis and Pham v Shui considered; the claimant had pre-accident morbid obesity, diabetes and a degenerative spine with debilitating lower back symptoms into the legs; he did not seek any medical treatment until four months after the motor accident; the scan evidence did not show any traumatic injury; claimant’s clinical presentation to Medical Assessors and recollection of prior condition was inconsistent; findings made that claimant had not established injury; none of the treatment and care related to the motor accident; Medical Assessment confirmed.

Medical Assessment – Treatment and Care

Review Panel Assessment of Treatment and Care and

Replacement Certificate issued under section 63 of the Motor Accidents Compensation Act 1999

The Review Panel confirms the certificate of Medical Assessor McGrath dated 24 November 2021.

REASONS

BACKGROUND

Mr Keverian (the claimant) alleges that he suffered injuries in a motor accident on 24 August 2015. The insurer insurers the liability of the at fault vehicle under the provisions of the Motor Accidents Compensation Act 1999 (the MAC Act).
The present disputes between the parties are whether various medical treatments are “reasonable and necessary in the circumstances” and “relates to an injury caused by the motor accident”. These constitute medical disputes within the meaning of the MAC Act.[1]
[1] See ss 57 and 58 of the MAC Act.
A medical assessment matter is determined in accordance with Part 3.4 of the MAC Act. This means that the matter is determined at first instance by a Medical Assessor[2] and, pursuant to s 63 of the MAC Act, on review by a review panel.
[2] Section 60 of the MAC Act.
On 24 November 2021 Medical Assessor McGrath issued a certificate that none of the various listed treatments or care were either reasonable and necessary or caused by the motor accident.
The treatment disputes were related to causation and reasonable and necessary. The causation disputes were described as:
“1. Treatment Type: Domestic assistance - causation Treatment Description: Whether the physical injuries give rise to a need for domestic assistance from the date of the subject accident to the date of the MAS assessment and whether this assistance is causally related to the injury sustained in the subject accident.
2. Treatment Type: Domestic assistance - causation Treatment Description: Whether the physical injuries give rise to a need for domestic assistance from the date of the MAS assessment and ongoing for life and whether this assistance is causally related to the injury sustained in the subject accident.
3. Treatment Type: Chiropractic
Treatment Description: Whether the 0 – 20 chiropractic sessions (and every number in between) from the date of the accident to the date of MAS assessment is causally related to the injury sustained in the subject accident
4. Treatment Type: Acupuncture
Treatment Description: Whether the 0 – 15 acupuncture sessions (and every number in between) from the date of the accident to the date of MAS assessment is causally related to the injury sustained in the subject accident.
5. Treatment Type: Physiotherapy treatment
Treatment Description: Whether the 0 – 15 physiotherapy sessions (and every number in between) from the date of the accident to the date of MAS assessment is causally related to the injury sustained in the subject accident.
6.Treatment Type: Medical - over the counter
Treatment Description: Whether 0 – 2 (and every number in between) Panadol tablets daily from the date of the accident to the date of the MAS assessment is causally related to the injury sustained in the subject accident.
7. Treatment Type: Medical - over the counter.
Treatment Description: Whether 0 – 1 (and every number in between) Panadeine Forte tablet daily from the date of the accident to the date of the MAS assessment is causally related to the injury sustained in the subject accident.
8. Treatment Type: Surgery Treatment Description:
Whether the future surgery – anterior lumbar interbody fusion (ALIF) with posterior pedicle screw fixation proposed by Dr Con Paleologis and Dr Marc Coughlan on 4 November 2019 is causally related to the injury sustained in the subject accident.
9. Treatment Type: Physiotherapy treatment
Treatment Description: Whether the future 0 – 6 physiotherapy sessions (and every number in between) per year from the date of the MAS assessment ongoing for life is causally related to the injury sustained in the subject accident.
10. Treatment Type: GP consultations
Treatment Description: Whether 0 – 8 GP consultations (and every number in between) per year from the date of the MAS assessment and ongoing for life is causally related to the injury sustained in the subject accident.
11. Treatment Type: Radiological investigations
Treatment Description: Whether the future imaging including plain X-rays as necessary and an MRI of cervical and thoracic spinal region is causally related to the injury sustained in the subject accident.
12. Treatment Type: Medical - over the counter
Treatment Description: Whether 0 – 2 Panadeine Forte tablet daily from the date of the MAS assessment ongoing for life is causally related to the injury sustained in the subject accident.
13. Treatment Type: Medical - over the counter
Treatment Description: Whether 0 – 2 (and every number in between) Panadol tablets daily from the date of the MAS assessment ongoing for life is causally related to the injury sustained in the subject accident.
14. Treatment Type: Other
Treatment Description: Whether the Annual pool pass for self-directed water based exercise from the date of the MAS assessment and for the following five years thereafter only is causally related to the injury sustained in the subject accident.
15. Treatment Type: Medical specialist consultation
Treatment Description: Whether 0 – 2 Neurosurgeon consultations (and every number in between) per year from the date of the MAS assessment and ongoing for life is causally related to the injury sustained in the subject accident.”
The Panel was also required to answer whether the 15 treatments were “reasonable and necessary in relation to the injury”.

THE REVIEW

The claimant sought a review of the certificate issued by Medical Assessor McGrath. On
10 February 2022 the delegate of the President determined that there was reasonable cause to suspect that the medical assessment of Medical Assessor Cameron was incorrect in a material respect.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide[3] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
[3] Section 63(3) of the MAC Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.[4]
[4] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the matter solely based on the written application[5].
[5] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.[6]
[6] Section 63(3A) of the MAC Act.
The Panel issued a direction to the parties requesting a provision of respective bundles that should be considered. The parties provided respective and comprehensive bundles.
On 6 June 2022 the Panel advised the parties of a medical examination and included the following direction:
“The Panel notes the clinical record of Dr Morian dated 14 November 2013 when he stated (claimant’s bundle, page 322)
‘on endone from his other gp’.
The claimant is directed to file and serve the clinical notes of ‘his other gp’ or any other general practitioner for the period from 1 January 2013 to 1 January 2017. These notes are to be filed and served by close of business, 27 June 2022.
Either party can make any submissions on the notes by close of business, 4 July 2022.”
The response by the claimant’s solicitor to this direction was:
“The claimant believes that the 'other GP' was quite possibly a GP whom he saw at Blacktown Hospital (the notes of which are included in the Claimants bundle of documents at A9).”
The insurer relevantly replied:
“The Claimant responded on 17 June 2022 advising that: ‘The claimant believes that the ‘other GP’ was quite possibly a GP whom he saw at Blacktown Hospital (the notes of which are included in the Claimants [sic] bundle of documents at A9).’
The Insurer confirms that annexure A9 relates to a letter from Dr Coughlan, neurosurgeon, to NRMA dated 12 November 2019 providing a quote for the surgery of L4/5, L5/S1 ALIF procedure. It therefore does not relate to the Claimant’s other GP.
The Insurer submits that records at A11 and A12 are the only records that have been produced from Blacktown Hospital and they also make no reference to ‘his other GP’. The Insurer submits that from the Medicare records, it appears the Claimant’s other GP that had prescribed Endone (Oxycodone) in 2013 was Dr Ekmejian at Ararat Medical Centre. The Insurer initially requested these records back in 2018 and had continued to follow up production but the documents are still outstanding.
The Insurer will continue to follow up these records but is there anything the Claimant/PIC can do to also try to speed up the production of these records (noting the delay the Insurer has experienced trying to get these records since 2018) that your [sic] be greatly appreciated.”
Document A9 in the material filed by the claimant is identified as a “Letter of Dr Coughlan to NRMA 12.11.2019”.[7]
[7] Claimant’s bundle, index.
On 17 June 2022 the Panel issued the following Direction:
“1. The claimant is directed to produce the clinical notes of Ararat Medical Centre/
Dr Ekmejian for the period from 1 January 2013 to 1 January 2017. These notes are to be filed and served by close of business, 4 July 2022.
2. Either party can make any submissions on the notes by close of business, 4 July 2022.”
There was no response by the claimant to this Direction.

STATUTORY PROVISIONS/GUIDELINES

Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 of the MAC Act provides that a disagreement between a claimant and an insurer on three distinct matters is referred to as “medical assessment matters”. Medical assessment matters include “whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances” and “whether any such treatment relates to the injury caused by the motor accident”.
Section 60 of the MAC Act provides that either party may refer a medical dispute to the President who is to arrange for the dispute to be referred to one or more Medical Assessors.
These sections self-evidently provide that the issue of “reasonable and necessary in the circumstances” and “whether any such treatment relates to the injury caused by the motor accident” are different concepts.
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAC Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act apply to the MAC Act[8]. In Raina v CIC Allianz Insurance Ltd[9] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002(NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[8] See s 3B(2) of the Civil Liability Act 2002.
[9] [2021] NSWSC 13 (Raina) at [65].
These observations were made in the context of a review panel being constituted by three medical experts as opposed to the composition of the present panel following the amendments to the MAC Act.

PRE-ACCIDENT RECORDS

The following is a summary of relevant matters preceding the motor accident.
1984  Prior motor accident – back injury[10]
[10] Claimant’s bundle, page 47.
1998  Prior motor accident – back and neck pain since[11]
[11] Claimant’s bundle, page 47.
19 March 1998             Receipt of disability support pension[12]
[12] Claimant’s bundle, page 141.
10 December 2004       Motor vehicle accident (neck/thoracic sprain)[13]
[13] Claimant’s bundle, pages 478 – 487.
2 June 2008                 Left knee arthroplasty - weight 118 kg[14]
[14] Claimant’s bundle, page 398.
4 November 2008        Revision Right total knee replacement[15]
[15] Claimant’s bundle, page 440.
14 July 2008 - 30         Multiple letters from Dr Morian. Last letter states that Mr
November 2012           Keverian suffers from “multiple medical conditions
including chronic pain in both knees, shoulders, back
and neck”[16]
[16] Claimant’s bundle, page 65.
2008 – 2015                Medical records of Dr Morian[17] - multiple references to
[17] Claimant’s bundle, page 139.
back and bilateral knee pain
27 July 2009                Left total knee replacement – weight 125 kg[18]
[18] Claimant’s bundle, page 402.
25 September 2009     CT Lumbar spine[19] shows mild bulges at L4/5 and L5/S1.
[19] Claimant’s bundle, page 428.
26 September 2009     CT thoracic spine shows mild scoliosis with degenerative
changes[20]
[20] Claimant’s bundle, page 426.
6.10.09  MRI scan of lumbar spine - multiple discovertebral
Degenerative changes with potential impingement at
L5.[21]
[21] Claimant’s bundle, page 424.
6 June 2011                 Dr Sorial – Pain radiating pain from the lower back to
  both hips and lower – over 130 kgs[22]
[22] Claimant’s bundle, page 380.
4 March 2012              Nepean Hospital – Two-day history of neck stiffness[23]
[23] Claimant’s bundle, page 368.
8 March 2012              Neck pain – Dr Morian[24]
[24] Claimant’s bundle, page 314.
21 November 2012      Dr Morian - Weight 132.3 kg[25]
[25] Claimant’s bundle, page 317.
17 December 2012      Revision of left total knee replacement[26]
[26] Claimant’s bundle, page 363.
27 March 2013            Acute back pain radiating to legs[27]
[27] Claimant’s bundle, page 319.
2 August 2013 -          Admitted to hospital by ambulance[28]  19 August 2013          Scans – left hip and low back[29]
[28] Claimant’s bundle, pages 663 – 807.
[29] Claimant’s bundle, page 768.
23 Aug 2013 -             Attendance at hospital – bilateral knee complaints[30]
[30] Claimant’s bundle, pages 353-355, 597 – 662, 808 – 839.
9 September 2013
10 September 2013      Bone scan[31] - appearance suggestive of prosthetic
[31] Claimant’s bundle, page 492.
Loosening at right knee. Marked degenerative disease in
Thoracolumbar spine.
CT – lumbar spine – small L4/5 and L5/S1\
osteophytes.[32]
[32] Claimant’s bundle, page 668.
14 November 2013       Dr Morian – “Marked recurrent back pain – on endone
from his other GP” – weight 128.9 kg[33]
[33] Claimant’s bundle, pages 321-322.
15 November 2013       CT lumbo-sacral spine – disc osteophytes at L4/5 and
L5/S1; lower lumbar facet joint changes with early left
sided L4/5[34]
[34] Claimant’s bundle, page 537.
3 December 2013         Dr Huang, orthopaedic surgeon, knee pain.[35]
[35] Claimant’s bundle, page 529.
29 January 2014           Dr Olschewski – left knee pain[36]
[36] Claimant’s bundle, page 539.
5 February 2014            Left knee scans[37]
[37] Claimant’s bundle, page 53.
19 February 2014         Dr Olschewski – no evidence of malpositioning of the left
on the recent scans. No evidence of infection
– referred to Dr New for the spine[38]
[38] Claimant’s bundle, pages 542 – 543.
28 February 2014          MRI lumbar spine[39]
[39] Claimant’s bundle, page 544.
14 April 2014                 Dr Dowla - obesity; osteoarthritis in both knees; Lumbar
spondylosis - longstanding low back pain to 1989 with
pain radiating to both thighs/hips and legs. EMG study
shows mild chronic neurogenic change in the right L5
innervated muscles[40]
[40] Claimant’s bundle, page 553.
2014  Diagnosed with Type 2 diabetes[41]
[41] Claimant’s bundle, page 47.
May 2014 -                   Hospital low back pain - physiotherapy records[42]
[42] Claimant’s bundle, pages 861 – 870.
Dec 2014
9 May 2014                  Quebec back disability scale[43]; Roland-Morris
[43] Claimant’s bundle, page 875.
Disability[44]
[44] Claimant’s bundle, page 878.
30 July 2014                 Commences age pension.[45]
[45] Claimant’s bundle, page 473.
14 August 2014            Dr Olschewski – claimant had seen Dr New who
recommended pain specialist.[46]
[46] Claimant’s bundle, page 547.
5 December 2014         Attendance at Hospital – heart issues.[47]
[47] Claimant’s bundle, pages 846 – 858 and 903 – 912.
5 January 2015             Attendance at Hospital - left wrist fall.[48]
[48] Claimant’s bundle, 913 – 921.
14 January 2015           Dr Morian - diet and weight reduction advice.[49]
[49] Claimant’s bundle, page 326.
15 January 2015            Placed on waiting list for the Pain Clinic.[50]
[50] Claimant’s bundle, page 550.
14 February 2015          Advised by Dr Morian to lose weight.[51]
[51] Claimant’s bundle, page 326.
26 March 2015              Weight 127 kg.[52]
[52] Claimant’s bundle, page 327.
14 April 2015                 CT - lumbar sacral spine.[53] Degenerative changes with
[53] Claimant’s bundle, page 2666.
Moderate bilateral L4 and L5 foraminal stenosis.
3 July 2015  GP consultation related to weight and diabetes.[54]
[54] Claimant’s bundle, page 327.
Certificate - claimant unable to wear seat be due to
chronic spinal degeneration condition for 12 months.[55]
24 August 2015              Admitted to Hospital from 13:34 to 17:11 for left hand
x-ray and bilateral Knee Pain - chronic back pain
confirmed.[56]

Records following the motor accident
[55] Claimant’s bundle, page 450.
[56] Claimant’s bundle, pages 922 – 935.

On 5 October 2015 Mr Keverian attended hospital complaining of two-day history of vertigo. CT scan of the brain showed no acute infarct identified. Follow up with the general practitioner in two to three days was advised.[57] Chest X-ray was normal. There is no reference to the motor accident in these notes.
[57] Claimant’s bundle, pages 936 – 961.
The first attendance reporting symptoms referable to the motor accident was on
[58] Claimant’s bundle, page 115.
18 December 2015. Dr Ekmejian of Marsfield Ararat Medical Centre provided a certificate referring to “worsening lower back pain, right shoulder and neck pains, bilateral knee pain”.[58]

The motor accident was reported to the police station on 16 January 2016.[59]
[59] Claimant’s bundle, page 39.
A claim form signed on 2 February 2016 referred to injuries to the lower back, neck, right shoulder and bilateral knees. Prior injuries are disclosed to the knees and back and reference to a “MVA 2005”.[60] The accident was said to have occurred at 6.30 pm.[61]
[60] Claimant’s bundle, page 36.
[61] Claimant’s bundle, page 36.
On 27 April 2016 X-rays of the entire spine were reported as showing moderate spondylotic degenerative disc disease at C3/4.[62]
[62] Claimant’s bundle, page 55.
By letter dated 5 September 2016, Dr Ekmejian referred the claimant for physiotherapy for the neck, back and foot, right shoulder and right knee.[63]
[63] Claimant’s bundle, page 114.
Mr Keverian returned to Dr Morian on 21 November 2016. The doctor noted “pain in the neck and the shoulders”[64] and that Mr Keverian was seeing Dr Ekmejian.
[64] Claimant’s bundle, page 328.
A CT scan of the lumbar sacral spine dated 8 December 2016 showed degenerative disease with bilateral L4 and L5 foraminal stenosis. The radiologist noted that the findings “have not significantly changed since previous imaging performed on the 14/4/2015”.[65]
[65] Claimant’s bundle, page 497.
On 20 November 2018 the claimant’s weight was 136.3 kg.[66]
[66] Claimant’s bundle, page 506.
Dr Paleologus provided a report dated 27 June 2020 noting treatment since 1 June 2017.[67] The doctor then noted a history of injury in the motor accident to the lower back, neck, right shoulder, both knees and feet.
[67] Claimant’s bundle, page 72.
Nerve conduction studies dated 19 June 2017 showed bilateral median neuropathies consistent with lesions of the carpal tunnel.[68] An MRI scan of the cervical spine dated
[68] Claimant’s bundle, page 74.
[69] Claimant’s bundle, page 75.
12 July 2017 showed minor disc bulge at C3/4 without significant cervical canal stenosis.[69]
In a letter dated 27 November 2018, Dr Gurkirat Chatha, neurosurgery registrar, noted back and leg pain present for more than 20 years. The doctor did not recommend surgery.[70]
[70] Claimant’s bundle, page 91.
The MRI scan of the lumbar spine dated 3 January 2019 showed multilevel disc disease and pathology at L4/5.[71]
[71] Claimant’s bundle, page 75.
Dr Marc Coughlan, neurosurgeon, provided an initial report dated 8 August 2019. The doctor then recommended conservative treatment with possible surgery.[72]
[72] Claimant’s bundle, page 82.
Dr Coughlan provided a report dated 4 November 2019 noting significant back and leg pain since the motor accident.[73] Given the failure to resolve on conservative treatment,
[73] Claimant’s bundle, page 81.
Dr Coughlan, recommended fusion from L4 to S1. A request was made for the insurer to pay for the procedure which was denied.
Records from Blacktown Hospital in May 2020 refer to admission for right foot pain. The discharge plan included continuation of endone for breakthrough pain.[74]
[74] Claimant’s bundle, pages 100 – 106.
Various X-rays and scans undertaken on 16 June 2020 showed degenerative changes in the glenohumeral and acromioclavicular joints of the left shoulder and the right shoulder showed calcific tendinosis in the supraspinatus.[75]

Qualified doctors
[75] Claimant’s bundle, page 74.

Dr Patrick was qualified by the claimant’s solicitors and provided a report dated
[76] Claimant’s bundle, page 45.
1 November 2016.[76] The doctor noted a history of the motor accident which involved a “big impact and their small car bounced up and down heavily twice” and Mr Keverian “impacted with his head at least once”.
Dr Patrick obtained a history that Mr Keverian put off going to the doctors and eventually saw Dr Ekmejian in December 2015. It was asserted that there had been weight gain from 115 kg prior to the accident to a current weight of 140 kg. The doctor noted prior motor accidents in 1984 and 1998 with back and knee injuries resulting in total knee replacements. Type 2 diabetes was diagnosed in 2014.
Dr Patrick opined that Mr Keverian had injured his lower back, neck and “seat belted right shoulder” in the motor accident. The neck injury was by way of flexion injury to the cervical spine, the lower back sustained an aggravation of lumbar spine “which however was asymptomatic during the period leading up the motor accident on 24 August 2015”.[77] Dr Patrick did not provide an opinion on causation between the motor accident and the bilateral knee condition.
[77] Claimant’s bundle, page 49.
Dr Margaret Gibson was qualified by the insurer and provided a report dated 9 May 2017.[78] The doctor noted the motor accident involved Mr Keverian hitting his head on the right-side panel and developing a lump on the forehead. Pain developed in the neck, shoulders, right knee, right thigh and needle symptoms under both feet.
[78] Claimant’s bundle, page 57.
A doctor was not seen for four months. The delay was explained by taking Panadol and not wanting to make a claim.[79]
[79] Claimant’s bundle, page 59.
Dr Gibson noted the photographs of the vehicle damage in the accident. Mr Keverian’s vehicle had damage to the left passenger door and possibly the front left side without significant cabin intrusion. Dr Gibson concluded that the motor accident was a negligible cause for any current impairment. The doctor stated:[80]
“Based on the long delay in presentation for any medical attention, I would regard the listed complaints as unrelated to the accident. And even if one would accept there had been minor pains after the accident, these were not of sufficient severity to require any medical attention. Given the long history of multiple problems in multiple joints and spine, I regard the subject accident as a negligible cause for any current impairment.”
[80] Claimant’s bundle, page 67.

Other medical assessment

Assessor Home provided a medical certificate dated 23 November 2017 certifying that the injuries gave rise to permanent impairment not greater than 10%.[81] The Assessor found aggravation of degenerative changes to the cervical spine, aggravation of pre-existing symptomatic lumbar spondylosis and contusion and aggravation of right shoulder tendinopathy.
[81] Claimant’s bundle, page 116.
Assessor Home recorded a pre accident history of intermittent neck pain, some right shoulder pain of unknown duration and a long history of chronic back pain with intermittent leg pain. First medical treatment was noted four months later when the claimant consulted
Dr Ekmejian.
Assessor Home noted that the photographic evidence showed minor damage to the front left corner of the claimant’s vehicle and to the right rear aspect of the other car. The Assessor concluded that on balance, the complaints of aggravation of neck and low back and right shoulder contusion was causally related to the motor accident. The low back was assessed at 5% and the right shoulder, when compared to the uninjured left shoulder, was assessed at 3% totalling 8% permanent impairment.

SUBMISSIONS

Claimant’s submissions dated 3 August 2020[82]
[82] Claimant’s bundle, page 34.

The claimant referred to the opinions expressed by Dr Patrick, Dr Coughlan and
Dr Paleologos. Dr Coughlan recommended the surgical procedure. It was also noted that Assessor Home found injuries caused by the motor accident including the injury to the lumbar spine.

Claimant’s submissions dated 19 April 2021[83]
[83] Claimant’s bundle, page 2733.

The claimant submitted that the various treatment disputes should be determined following surgery when the claimant had attained maximum medical improvement. It otherwise submitted that various claims for medical treatment had not been made and therefore a dispute did not exist.

Claimant’s submissions dated 20 December 2021[84]

[84] Claimant’s bundle, page 2747.

These submissions were filed seeking a review of the certificate issued by Medical Assessor McGrath. The insurer noted the absence of contemporaneous evidence was relevant but not determinative of the issue of injury when there is other evidence: Bugat v Fox.[85]
[85] [2014] NSWSC 888.
The claimant submitted that he provided the explanation and that was ignored by the Medical Assessor.
The claimant submitted that the Medical Assessor misinterpreted Assessor Home’s decision who found that the cervical spine, lumbar spine and right shoulder were injured in the motor accident. Had the Medical Assessor accepted Assessor Home’s findings and accepted the claimant’s explanation, then a finding on causation would have been made in the claimant’s favour.
The claimant submitted that the finding by the Medical Assessor of other causes such as morbid obesity, diabetes and lower spinal degenerative pathology was made without “any documentary evidence to support the above allegations”.[86]
[86] Claimant’s bundle, page 2750.
The claimant submitted that the bilateral hernia surgeries had no medical relevance to neck, back and right shoulder injury caused by the motor accident.

Insurer’s submissions

The insurer submitted that a medical dispute existed and should be referred to a Medical Assessor at first instance.[87]
[87] Claimant’s bundle, page 2736.
In response to the application to review the assessment of Medical Assessor McGrath, the insurer submitted that the Medical Assessor provided sound reasoning and made findings to support his decision.[88] It submitted that the findings of an absence of causation were based on:
·        lack of contemporary evidence;
·        no identifiable injury;
·        the delayed consultation does not support an injury which is more than negligible; and
·        a slow deterioration in symptoms since the accident is consistent with other mechanisms such as diabetes, morbid obesity and the natural history of spinal degenerative pathology.
[88] Insurer’s bundle, page 4.
The insurer otherwise disputed that the Medical Assessor made errors as identified by the claimant.

RE-EXAMINATION

Mr Keverian was medically examined by both Medical Assessors on 30 June 2022. The joint report is as follows:
“At the beginning of the consultation, the interpreter via phone, spoke with Mr Keverian and they both agreed that they could understand each other readily. Mr Keverian also had a support person with him ‘Eddie’.
Mr Keverian was advised of the nature of the consultation and the role of the assessors. Mr Keverian stated that, ‘Since the accident, no one helps’. Then, in response to being asked his understanding of why he is here, he said, ‘Here to reduce level of pain’.
The assessors then explained to Mr Keverian in some detail, the nature of the exam; that we were trying to resolve a dispute between the insurance company and his solicitor; that we could not give him medical advice; that this was different from a normal medical consultation with a treating doctor in that our report is not confidential; that no treatment advice could be given; that we are here to assess the nature and degree of his problem in relation to the motor accident.
We also advised Mr Keverian that if he had any problem with a question asked of him, or any problem during the physical examination, for him to promptly advise us.
Mr Keverian was asked about his past medical history and past motor accidents.
He acknowledged that he had some long-term problems with memory. He said that he had had two former motor accidents where he had injured his neck and low back. He explained that he had a long history of low back pain that was located in the middle of the low back. He was questioned whether there had been pain into the legs before the motor accident, to which he said, “not much”. He acknowledged he had investigations for the low back before the motor accident, saying that they had been done to see how his back could be helped. He said he had had no specific treatment for the back pain apart from tablets. He specifically said there was no tingling or numbness in the legs before the motor accident.
With regard to neck pain before the motor accident, he said he did not feel as if he had
neck pain. He then said former neck pain had decreased and had not been uncomfortable anymore.
With regard to shoulder pain before the motor accident, he said that this had become less and had reduced, not needing painkillers before the motor accident. Mr Keverian then summarised by saying, ‘No pain anymore before accident’.
Upon questioning him about the pre-accident documentation which indicated he did have pain in the back and knees in the period shortly before the accident, he said, ‘I don’t think so, I don’t remember’, and reiterated that he had long‑term problems with memory.
He described two motor accidents before 2000 although he could not give details. He was advised there was documentation of a motor accident in 2005 in his application - he denied that a motor accident occurred in 2005, saying there had only been two earlier accidents and before 2000.
Mr Keverian then re-emphasised that all his body pain had resolved before the motor accident.
The Panel questioned Mr Keverian about the subject accident on 24 August 2015. He said he was the driver, it had been raining and he had been the first car, stationary at a set of traffic lights. When he started to turn to the right on a green arrow, apparently a car came straight through from the opposite direction and collided with the left side of his car. He said his car bounced and two tyres went ‘up and down’.
He said that his sister was in the front seat with her seatbelt on and that she was injured but did not attend her general practitioner.
Mr Keverian was wearing a seat belt and the airbags did not deploy. He said his head hit the driver’s window but he did not lose consciousness; on specific questioning he described no other contact between his body and the internal structure of the vehicle. However, later in the interview, Mr Keverian said that both knees had hit the dashboard; there was no bruising, but he felt pain. He was questioned specifically whether he had pain in his knees, in the weeks or hours before the motor accident, and he said, ‘no’.
He thought the other vehicle was a Ford/Holden and he was driving a Mercedes sports.
He was questioned why the police were not called. He said this was because the other driver said that it was, ‘his fault’. He was unable to recall whether or when the police were notified. He said immediately after the accident, ‘all my body pain’.
Mr Keverian said his low back was very sore and the back pain went into his hips and legs; his right shoulder was painful but he said it was not knocked in the motor accident - he pointed to the anterior aspect of the right shoulder as the site of his shoulder pain at that stage; he said the right shoulder pain extended to the fingers on the right side.
On questioning regarding his sister’s injuries, he said she was not taken to the general practitioner or hospital because he said it was agreed that her injury was, ‘a small thing’, ‘no blood’ and therefore did not require an ambulance.
On closer questioning regarding the right shoulder pain, Mr Keverian was asked when the pain became worse, whether it was within hours, days or years. He then said it had recently become worse over the last two months and requested that we review a recent CT scan of the right shoulder he was carrying. He was questioned again on the timing of the onset of more severe right shoulder pain using a variety of strategies, open-ended questions, closed-questions, paraphrasing, reflection and consultation with the interpreter to confirm understanding – Mr Keverian essentially refused to answer the question, except to say it was, ‘after the car accident’, but would not advise whether it was hours, days or years. Later he said it had been two to three years ago that the pain became worse in the right shoulder. The Panel was careful in explaining to him that the timing and the pattern of his shoulder pain was quite important to assessing injury - he said he understood but could not give more information. Later again in the interview, he said that the right shoulder pain came on, ‘after two months’ and then after, ‘a few months’.
With regard to the low back pain, on re-questioning, he said he already had pain in the low back before the accident, but it became worse after the accident. He said he particularly had pain with movement, especially after the motor accident.
He was questioned regarding the neck symptoms. He said that a couple of months after the accident the neck pain became more marked.
Mr Keverian was questioned closely about when he had initially attended his general practitioner post-accident. He said that he saw Dr Morian GP, two weeks after the accident, then immediately advised, ‘file gone’; the panel explained that there was no record of this attendance in the notes provided.
And Mr Keverian kept reiterating, ‘the file gone’.
He was questioned about his attendance to Dr Ekmejian - his family doctor. He initially said he had not attended Dr Ekmejian from the time of the motor accident to 2017; on requestioning he said, “Don’t remember” but said he took his aunts to see Dr Ekmejian during this time but did not attend the GP himself.
He was asked whether he had seen Dr Ekmejian before 2015 but he could not answer, saying he, ‘might have seen’ Dr Ekmejian.
Note: the assessors tried to obtain a temporal sequence of attendances at his general practitioners: after consideration, Mr Keverian reiterated that in 2015, after the accident, he had attended the first doctor, Dr Manion. He said he had initially said two weeks but then thought it might be three to four months and, ‘doesn’t remember’.
The assessors advised that Dr Ekmejian had filled a certificate regarding the car accident early in 2016 - Mr Keverian said he could not remember, saying that he did not attend Dr Ekmejian for the car accident but had taken his aunties there during that period, and subsequently they had died.
Mr Keverian was asked specifically whether he had attended Dr Ekmejian between the car accident in August 2015 and December 2015/January 2016. He remarked, ‘Don’t remember, don’t know’: note the interpreter advised that he had said this in Armenian (‘Don’t remember, don’t know’) but was unwilling to say it in English.
Mr Keverian was questioned about the right shoulder - the assessors advised
Mr Keverian that in the records, there was documentation of treatment to the right shoulder in the past, before the motor accident. Mr Keverian said, ‘I don’t remember’ but said he recalled an injection into the back.
He said the problems in his right shoulder now extend from the right shoulder into the right arm with general numbness. He said he has tingling in both arms and he felt that the symptoms on the left side started about two years ago.
On re-questioning regarding the onset of symptoms post-accident:
with the knees, he said the first pain he had was some weeks after the accident;
the back became worse after the accident;
he said that two months after the accident, the right shoulder symptoms started and more recently, one to two years ago, the left shoulder started.
Mr Keverian asked rhetorically, ‘How can I have accident and not have pain?’
He said the low back persists and has become worse with time. The right shoulder and right arm are worse particularly with the wrong movements. He described bilateral pins and needles in both lower limbs, particularly under the soles of the feet becoming worse with time. He said he did not have any such symptoms before the motor accident.
When asked specifically about leg pains prior to the MVA, he stated, ‘Not that much pain before accident’. In particular he said he had no pain or numbness in the legs pre-accident.
He described back pain radiating to both groins.
He said his knees are ‘sometimes bad’. He was asked specifically whether he had pain in his knees before the motor accident. This question was put to him by the assessors in various ways via the interpreter. Mr Keverian said he understood and said there was no pain in either knee before the motor accident.
Currently he complains of back pain, hip pain, pins and needles in both legs and a global burning pain in both legs. He said it is all getting worse with time and he has global numbness in both legs.
With regard to the arms he complains of numbness radiating down both arms but he has had no specific treatment and he described both the entire arms (circumferentially) being involved.
He said from the neck he gets noises in his ears and he is forgetting easily.
He described pressure on his head from the neck.
To the direct question from the assessors, ‘Why did you not see your own doctor for many months?’, Mr Keverian replied, ‘Because not right I didn’t see doctor for four months’. He said that he saw Dr Morian two weeks after the accident, ‘roughly’. He then said he is ‘not recalling’ and said there is, ‘too much sadness for me’.
At this stage, Mr Keverian suddenly became overtly upset and the consultation needed to be held up for a short period until he regained his composure.
He believed that he had further investigations with CT and MRI then said, ‘I’ve been, but I don’t remember’. ‘No more recalling than that’. His responses in English were confirmed through the interpreter.
In summary Mr Keverian complained of increasing back pain, tingling in the legs and neck pain. He has pain in the right shoulder starting some time after the accident, and occasionally in the left shoulder in the last two years getting worse over the last few months. The neck was symptomatic.
He was asked specifically about what treatment he had received. He said, “nothing”. Later he did say he had five Medicare treatments with physiotherapy but could not recall when and thought he had some acupuncture and physiotherapy at Chatswood.
He was asked whether he had seen other specialists after the motor accident and he said, ‘A few specialists’. He was then asked whether he had attended any specialists for treatment. He said, ‘Nobody’. In particular, Mr Keverian initially said that he had not had any advice with regard to surgery on the back; however, he later acknowledged that he had attended Dr Coughlan, Neurosurgeon. Mr Keverian chose to see him after Dr Coughlan appeared on TV. Mr Keverian expressed a strong belief that only an operation from Dr Coughlan would solve all his problems.
Social History
Mr Keverian lives alone at home and his brother helps care for him.
He is now on an aged pension while formerly, he said he had been on a disability pension from the former two car accidents, explaining it was his, ‘total body’ that had been the problem requiring the disability pension, but mainly his back.
Medical History
In the past he has had bilateral total knee replacements; he described three operations to each knee apparently having had some deep prosthetic infection. He also described multiple inguinal hernia operations two times on the right with some infection, and further surgery on the left for removal of gauze.
He has diabetes and angina. He said that currently he is only able to walk 5 to 6 metres with his walker, being stopped by shortness of breath. He can mobilise without the walker and occasionally he mobilises with a stick. He described two recent falls and said he spent some time in hospital last week. He said that he had restarted smoking about four months ago.
He is currently taking multiple medications including Voltaren, Panadeine Forte, amitriptyline, Crestor, Lipidil, Ramipril, Eliquis, meloxicam, fenofibrate, duloxetine and metformin XR 1000 along with metoprolol 50 mg - most of these were prescribed by
Dr Paleologos, GP.
Examination
Mr Keverian was found to be a difficult historian. He repeatedly gave relatively specific answers, then stated that he could not remember.
On examination he had a slow symmetrical gait, using a walker. He weighed 127 kg and was 162 cm in height (BMI equals 48.4).
He was able to raise his heels off the floor and also his forefeet off the floor.
Cervical Spine
In the cervical spine, there was generalised mild tenderness without localising tenderness and with no guarding. The range of active cervical movements was considerably restricted but symmetrical, e.g. rotation to the right and left equal measuring 15 degrees. There was no dysmetria and no radicular complaints.
At other times during the consultation, he had a greater/freer range of cervical movements - this inconsistency was brought to his attention, but Mr Keverian did not agree with this observation.
In the upper limbs power was symmetrical with no myotomal loss. Sensation to light touch was intact
Upper limb reflexes were symmetrical but reduced.
The circumference of both upper arms was equal measuring 42 cm; the maximum circumference of the right forearm was 31 cm and the left forearm was 30 cm.
Mr Keverian is right-handed.
Lumbar Spine
In the lumbar spine, there was no localising tenderness and no guarding. Movements were symmetrical but reduced with no dysmetria and no radicular complaints.
Straight leg raising on lying down was 30 degrees on the right and 20 degrees on the left with complaint of back pain; on sitting, straight leg raising was equivalent to 70 degrees bilaterally, without complaint. This inconsistency was brought to his attention.
In the lower limbs, there was no obvious sensory or power deficit, although there was clinical suggestion of a mild peripheral neuropathy with subjectively altered sensation under the soles of the feet.
Shoulders
With regard to the shoulders, the maximum range of active movements was as follows:

Shoulder Movement Right (degrees) Left (degrees)

Abduction 80 90

Adduction 20 30

Flexion 100 100

Extension 50 50

Internal rotation 50 90

External rotation 20 70
However, active shoulder movements were inconsistent, being variable to multiple repeat examinations. The importance of the issue of inconsistency in range of active movements and ‘best effort’ was explained to Mr Keverian and the inconsistency was brought to his attention. He said the variability was due to shoulder pain.
The range of external rotation of each forearm, with the upper arm adducted in neutral, was equal on both sides and measured 30 degrees.
Knees
There were bilateral anterior longitudinal total knee replacement surgical scars that were well-healed and with a good range of movement of both knees considering the knee replacements and multiple surgeries.
Lower limb reflexes were symmetrical but reduced, with no obvious sensory or power deficit.
The circumference of the right thigh measured 57 cm and the left thigh 56 cm (10 cm above each suprapatellar border). The maximal circumference of each calf was equal measuring 46 cm.
Radiological Investigations
Mr Keverian had with him nerve conduction tests of 09 April 2012 by Dr Watson, confirming carpal tunnel syndrome bilaterally.
He also gave the assessors a packet of Endone dated 19 August 2013. (RAJS 1 tds as necessary).
He had a recent CT neck, x-ray shoulders and wrists from 17 May 2022.

Further History
After the physical examination, aspects of the history were reviewed with Mr Keverian: he said that he had, ‘not much problem before the accident’ referring to his neck and low back. He said, ‘I had pain, but pain worse after the accident’. He said with regard to the knees, before the accident, he had, ‘not much problem’. He was questioned regarding documentation that he had attended Blacktown Hospital on the day of the motor accident. He said that he had, ‘never been’, saying that on the day of the accident, he had driven his sister to do the shopping and they were driving home when they had the accident.
Again, Mr Keverian was questioned about the notes from Blacktown Hospital showing that he attended for his thumb and knee pain, on the day of the accident. He reiterated, and was quite definite, that there was no knee pain and no leg pain or symptoms before the motor accident.
Mr Keverian again reiterated that there had been no leg symptoms before the motor accident, despite being reminded that Dr Dowla had been consulted for leg symptoms before the accident.
On explaining to Mr Keverian again, that his neck appeared to move more readily during the consultation than when formally examined, he explained, ‘Pain is part of coming’.
The assessors noted again that straight leg raising was inconsistent - Mr Keverian said this was due to the pain he experienced.
On referring back to Dr Morian’s notes, Mr Keverian said, ‘Doctor sell his business’.
The assessors considered that there may have been some minor degree of cognitive impairment although this was not formally tested.”

FINDINGS

The review is a new assessment of all matters with which the medical assessment is concerned. Our role is not to correct error in the decisions of the Medical Assessor. The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[89] and Insurance Australia Ltd v Marsh.[90]
[89] [2021] NSWCA 287 at [40], [41] and [45].
[90] [2022] NSWCA 31 at [11], [21], [64].
The Panel adopts the examination report of the Medical Assessors supplemented by the following reasons.
The findings of the previous Medical Assessors and/or Review Panel are not, contrary to the claimant’s submission, determinative of causation in this dispute: Owen v Motor Accidents Authority[91]; Allianz Australia Insurance Ltd v Girgis[92]; Brown v Lewis[93] and Pham v Shui.[94]
[91] [2012] NSWSC 650.
[92] [2011] NSWSC 1424
[93] [2006] NSWCA 587.
[94] [2006] NSWCA 373.
The motor accident need only be a material contribution between the motor accident and the need for treatment: AAI Limited v Phillips.[95]
[95] [2018] NSWSC 1710 (Phillips) at [29].
In Norrington v QBE Insurance (Australia) Ltd[96] the Court held that the Panel committed jurisdictional error by treating the absence of any complaint to the left shoulder for nine months after the accident as dispositive and thereby failed to properly discharge their statutory function to ascertain causation.
[96] [2021] NSWSC 548 (Norrington).
The Court referred to and applied the Court of Appeal decision in AAI Ltd v McGiffen[97] and noted that the presence or absence of a contemporaneous complaint “is relevant in this context, it must not be treated as conclusive of the question of causation”.
[97] [2016] NSWCA 229 at [64]-[66].
These principles establish that the lack of contemporaneous complaint is a relevant, but not determinative factor.
In the present case there is not only the absence of complaint but the absence of treatment.
The claimant in his submissions accepted that the first complaint of injuries sustained in the motor accident was made in December 2015. The attendance by Mr Keverian at hospital for another condition in October 2015 does not refer to the motor accident.
The claimant regularly sought medical treatment before the motor accident by doctors and at hospital. This history cannot explain his reluctance to seek medical attention following the motor accident in circumstances where he did attend hospital in October 2015.
The claimant relied on the opinion of Dr Coughlan as supporting the causal nexus between the back surgery and the motor accident. Dr Coughlan recorded:[98]
“As you will recall, he was involved in a significant motor vehicle accident and subsequent to that has significant back pain and leg pain.”
[98] Claimant’s bundle, page 81.
An incorrect history relying on the contemporality of symptoms with the subject incident greatly reduces the value of the medical opinion. That error alone greatly undercuts the value of the opinion as it is not based on a fair climate.[99] The history recorded by Dr Patrick, set out at [46], has a similar error concerning pre-accident symptoms.
[99] See Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; Booth v Fourmeninapub Pty Ltd [2020] NSWCA 57 at [14].
The claimant had pre-accident morbid obesity, diabetes diagnosed in 2014 and a degenerative spine with debilitating lower back symptoms into the legs. The chronology set out at [26] specifies the evidence in support of these findings. It is incorrect, as the claimant submitted, that there is no documentary evidence to support these matters.
These pre-existing conditions are a medical explanation of ongoing deterioration in the claimant’s conditions irrespective of any motor accident.
The claimant presented to the Medical Assessors as a person who either had a poor recollection and/or was not truthful. Whatever is the true reason, Mr Keverian’s recollection of his prior symptoms was not accurate. Accordingly, we have difficulty accepting Mr Keverian’s account of his pre and post-accident symptoms unless they are independently corroborated.
We consider the absence of any treatment for some four months as suggestive of no injury. Mr Keverian regularly sought medical treatment before the accident and did so on the day of and shortly before the motor accident. Otherwise, Mr Keverian went to hospital in October 2015 for an unrelated health condition and did not mention the motor accident. There is no logical reason, why, if Mr Keverian was injured, why he would not have sought medical treatment as he regularly did.
The scan evidence does not show traumatic injury although does not exclude the potential of an aggravation of a degenerative condition.
With regard to back pain there is clear evidence of longstanding preceding symptoms of low back pain with lower limb radiation that had attracted formal investigation including nerve conduction studies and an MRI scan. A repeat MRI scan after the accident showed no new structural changes within the lumbar spine compared to the scan obtained before the accident. There is no contemporaneous evidence of new injury to the low back from any practitioner. The only evidence supporting any new injury is the patient’s own recollection.
Mr Keverian drove home after the accident and did not obviously attend for any acute medical attention for injury for some months.
The claimant’s reporting was frequently internally inconsistent and inconsistent with available documentation. These inconsistencies were put to Mr Keverian and we are not satisfied that his responses allowed the inconsistencies to be satisfactorily resolved.
There was preceding back pain, with no reliable evidence of any new injury. Furthermore, there were inconsistent physical findings of injury to the lumbar spine (specifically inconsistency between lying and sitting straight leg range). Accordingly, whilst the motor vehicle accident in question could have caused an injury to the lumbar spine, it did not cause an injury to the lumbar spine.
With regard to any neck injury there is no contemporaneous medical evidence of any injury to the neck. Mr Keverian reported that he developed neck pain at least two months after the subject accident. The Panel considered that it is medically implausible that an injury was sustained that remained asymptomatic for two months and then caused pain. Furthermore, there were important and unresolvable inconsistencies on examination of the neck, arguing against a persistent injury. We conclude although the motor vehicle accident in question could have caused an injury to the cervical spine, it did not cause an injury to the cervical spine.
There was unlikely to be sufficient force applied to the left shoulder in the motor accident to result in a physical injury. There is no contemporaneous evidence of any injury to the shoulder in the records provided. The symptoms in the left shoulder were reported by Mr Keverian to start a considerable period of time (at least three years) after the accident. Accordingly, any relationship to the accident is medically implausible. The Panel therefore concluded that there was no injury to the left shoulder in the subject accident.
There is an absence of supporting contemporaneous evidence of any new injury to the right shoulder in the accident, lack of direct injury reported by Mr Keverian in the motor accident and his ability to drive home and not require any medical review for some months. Mr Keverian indicated that the right shoulder pain had started some months after the accident. So that any relationship to the accident is medically implausible. There is also documentary evidence of preceding right shoulder pain. In particular, the Panel noted a seatbelt exemption from 2011 and still in force that Mr Keverian stated was for pain in the right shoulder on wearing a seatbelt. The Panel therefore concluded that there was no new injury to the right shoulder in the subject accident.
The claimant relied on the findings made by Medical Assessor Home who concluded that there was an aggravation of neck and low back pain and right shoulder contusion causally related to the motor accident. As we previously noted, these findings are not binding.[100]
[100] See [66] herein.
We have set out our reasons why we are not satisfied there were any injuries sustained in the motor accident.
Accordingly, we find there is no causal relationship between the motor accident and the various treatment disputes.
The reasonable and necessary questions repeated the issue of causal relationship to the motor accident as part of that dispute. That is an error in the drafting as the issues are distinct. However, as we were asked to address the issue of reasonable and necessary causally related to the motor accident, the remaining questions are also answered adverse to the claimant.

OTHER MATTER

The claimant’s solicitor’s response to the direction, set out at [15], was incorrect. The solicitors then did not respond when they were asked to produce the prior medical records of the other general practitioner who had prescribed endone to the claimant prior to the motor accident
We have not considered these matters as part of our determination. However, these reasons are referred to the Motor Accidents Division Head for consideration of whether the solicitor’s initial response and subsequent failure to comply should be referred to and considered by the appropriate professional body.

CONCLUSION

The certificate issued by Medical Assessor McGrath is confirmed.

Shoulder Movement	Right (degrees)	Left (degrees)
Abduction	80	90
Adduction	20	30
Flexion	100	100
Extension	50	50
Internal rotation	50	90
External rotation	20	70

[2022] NSWPICMP 294

19 July 2022