Krikoor v AAI Limited t/as GIO

[2022] NSWPICMP 81

DETERMINATION OF REVIEW PANEL

CITATION:

Krikoor v AAI Limited t/as GIO [2022] NSWPICMP 81

CLAIMANT:

Ayda Krikoor

INSURER:

AAI Limited t/as GIO

REVIEW PANEL:

Member Belinda Cassidy
Dr Mohammed Assem
Dr Drew Dixon

DATE OF DECISION:

11 April 2022

CATCHWORDS:

MOTOR ACCIDENTS- Motor Accidents Compensation Act 1999; medical assessment of whole person impairment (WPI) and review under section 63 Motor Accidents Compensation Act1999 (MAC Act); thirteen injuries listed in original application, nine resolved and four assessed (lumbar and cervical spine along with left and right shoulders); assessor determined current WPI greater than 10% but after reducing lack, neck and left shoulder for pre-existing impairments determined WPI at 6%; claimant had earlier accident in 2009 and claim which settled; claimant had problems in various part of her body before and after that accident; no issue by claimant as to recovered injuries; no issue by insurer as to causation; methodology of calculation of pre-existing impairments in issue; Held- claimant’s WPI was not greater than 10% (8%); clause 1.31 of the Motor Accident Permanent Impairment Guidelines discussed and approach to calculation of pre-existing impairments considered; there was objective evidence of pre-existing symptomatic impairment in lumbar spine and cervical spine (were DRE II and still DRE II); based on consideration of 2009 medico-legal assessments and ongoing complaints and restriction of movement, left shoulder pre-existing impairment was 6%; no  evidence of pre-existing impairment of right shoulder.

DETERMINATIONS MADE:  

The Review Panel:

1.     Revokes the Certificate of Assessor Jonathan Herald dated 4 March 2021.

2.     Certifies that the degree of Ayda Krikoor’s permanent impairment resulting from the injuries caused by the motor accident on 21 September 2016 is not greater than 10% on the basis of the Panel’s assessment of 8% whole person impairment.

STATEMENT OF REASONS

INTRODUCTION

1. Ms Ayda Krikoor was injured in a motor vehicle accident on 21 September 2016. The claimant was the front seat passenger in a vehicle hit from behind. The airbags were deployed.

2. On or about 25 October 2016 Ms Krikoor made a claim for damages against GIO, the third-party insurer of the vehicle that collided with the vehicle she was in. GIO has admitted liability for the claim.

3. Ms Krikoor sought damages for non-economic loss on the basis that in her view she had a whole person impairment (WPI) of greater than 10%. The insurer disputed the degree of the claimant’s impairment, and that dispute was referred to the former Dispute Resolution Service (DRS) of the State Insurance Regulatory Authority (SIRA). Upon the abolition of DRS, the application for determination of the claimant’s WPI came within the jurisdiction of the Personal Injury Commission (the Commission).

4. On 4 March 2021, Medical Assessor Herald determined that the claimant’s WPI was 6%. He found current impairments totalling 24% which he reduced by 18% for pre-existing impairments and certified the claimant had a WPI of not greater than 10%.

5. The claimant sought a review of that decision and the President of the Commission’s delegate determined the review should proceed. The President convened the Panel.

LEGISLATIVE PROVISIONS

Provisions in the Act

1. Ms Krikoor’s claim for damages is made under the Motor Accidents Compensation Act1999 (the MAC Act). Her damages are governed by Chapter 5 of that Act as follows:

   (a)   Damages for non-economic loss are limited and restricted by the provisions in Part 5.3. For example, non-economic loss damages are limited to a maximum amount in accordance with s 134[1], and

   (b)   Entitlement to those damages is restricted by s 131 to persons who have a greater than 10% whole person impairment (WPI) as a result of the injuries sustained in the accident.

   [1] The current maximum as of October 2021 is $590,000.

2. If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination[2].

   [2] See section 132 and section 44(1)(c) of the MAC Act.

3. Part 3.4 of the MAC Act provides for first instance medical assessments, further medical assessments and the review of medical assessments by a review panel[3].

   [3] Sections 61, 62 and 63 of the MAC Act.

Permanent impairment assessment

1. Whole person impairment is to be assessed in accordance with the Motor Accident Permanent Impairment Guidelines (the Guidelines)[4] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA4 Guides).

   [4] Section 133. The current version of the Guidelines is Version 1 effective from 30 November 2017.

2. Clause 1.21 of the Guidelines says that, “The evaluation should only consider the impairment as it is at the time of the assessment”.

3. The assessment of impairment in Ms Krikoor’s claim has been made more difficult by her lengthy and well documented medical history. The prevailing issue in these proceedings is the assessment of any pre-existing impairment, whether there should be a reduction from her current impairment and if so, by how much.

4. The Guidelines provide as follows:

   “1.31 The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored. 

   1.32  The capacity of a medical assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA4 Guides (page 10): ‘For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.’

   1.33  Pre-existing impairments should not be assessed if they are unrelated or not relevant to the impairment arising from the motor accident.”

ASSESSMENT UNDER REVIEW

1. The following injuries were referred to Assessor Herald to consider:

   (a)   cervical, thoracic and lumbar spine;

   (b)   left and right shoulder;

   (c)   left and right hand;

   (d)   left and right hip;

   (e)   left and right knee;

   (f)    right ankle, and

   (g)   chest.

2. Assessor Herald was also asked to determine whether left shoulder rotator cuff arthroscopic repair was reasonable and necessary and caused by the accident.

3. Assessor Herald took a history from the claimant of two car accidents. The first accident occurred on 10 September 2009 and the second is the accident the subject of the medical dispute before the Panel. The Assessor records that before her first accident Ms Krikoor was a childcare worker licensed to look after seven children and after her first accident, she had pain and reduced this to four children and then stopped completely after her second accident.

4. The claimant told Dr Herald she suffered neck pain, dizziness and was unconscious after her first accident. She was taken to Liverpool Hospital (other records suggest by ambulance) and developed neck, back and left shoulder pain.

5. Assessor Herald records Dr Woo’s findings.

6. Assessor Herald records that the claimant was unsure of the details of the 2016 accident. She said the accident occurred at high speed, the car she was in was badly damaged, towed and unrepairable. Police and ambulance did not attend and she went home. She says she saw her doctor two days later complaining of neck pain radiating to her head and down her shoulder and all over her body. She had radiology and physiotherapy. She saw Dr Todd Gothelf and had rotator cuff repair on 23 March 2019 which improved her shoulder pain but not her range of shoulder movement.

7. She is reported to have continuing neck pain radiating into her shoulders (right worse than left), lower back pain radiating into both legs (right worse than left) and separate shoulder pain (the right now worse than the left after surgery).

8. On examination, Assessor Herald records:

   (a)   cervical spine – para-vertebral muscle tenderness and some spasm. A quarter range of motion and non-verifiable radicular complaints to both shoulder blades. No impairment to tone, power and reflexes in the upper limbs and no dermatomal sensory loss or clinical features of radiculopathy.

   (b)   Thoracic spine – no tenderness or restricted motion.

   (c)   Lumbar spine – reduced range of motion to one quarter. Normal neurological examination and no muscle guarding but ‘bony tenderness’.

   (d)   Upper limbs – full range of motion in both elbows and wrists and hands with no tenderness. There was restriction of range of motion in both shoulders more so on the left than the right.

   (e)   Lower limbs – full range of motion and no effusion or tenderness in the hips, knees and ankles.

9. Assessor Herald noted inconsistencies in the claimant’s range of motion when comparing formal examination to informal observation however the claimant explained this by saying she had pain. He explains that while she had altered sensation these did not follow a dermatomal pattern and did not therefore fulfill the criteria for radiculopathy.

10. Assessor Herald reviewed 34 items of, or reports on, radiology and scans dating back to a left knee X-ray in December 2003. The first shoulder radiology occurred on 3 June 2005 (X-ray left shoulder) and further left shoulder radiology was undertaken before the accident in September 2009 (X-ray), November 2009 (ultrasound) and June 2014 (ultrasound).

11. Assessor Herald diagnosed:

    (a)   cervical spine – soft tissue injury with non-verifiable radicular complaints down both upper limbs;

    (b)   lumbar spine - soft tissue injury with non-verifiable radicular complaints down both lower limbs;

    (c)   left shoulder rotator cuff tear, and

    (d)   right shoulder impingement syndrome.

12. The Assessor also considered that these injuries aggravated pre-existing soft tissue injuries.

13. Assessor Herald determined that the soft tissue injuries to the claimant’s thoracic spine, right and left hand, right and left hip, right ankle, chest, right and left knee had resolved and gave rise to no assessable permanent impairment.

14. In terms of the pre-existing impairment, Assessor Herald referred to “numerous previous IME’s[5]” in relation to a previous motor vehicle accident[6] and says, “based on the records … it seems she never fully recovered from that motor vehicle accident”. He used Dr Woo’s WPI assessments from 2010 as evidence of the degree of pre-existing impairment as follows.

    [5] Independent Medical Examinations

    [6] He records as 30 June 2010, clearly an error.

Body Part or System	Current % WPI	Pre-existing % WPI	% WPI due to motor accident
Cervical Spine	5	5	0
Lumbar	5	5	0
Left shoulder	10	8	2
Right shoulder	4	0	4

1. In terms of the claimant’s shoulder surgery Assessor Herald found that “on the balance of probability, the motor vehicle accident has caused the left shoulder rotator cuff tear” and that therefore the surgery to repair it was related to the accident.

SUBMISSIONS

Claimant’s submissions

1. The claimant understandably did not seek a review of Assessor Herald’s decision regarding left shoulder surgery.

2. The claimant’s submissions in support of the application for review argue that the Assessor failed to provide adequate reasons for the reduction of 8% for the claimant’s pre-existing shoulder impairment and no reasons at all for reducing the claimant’s cervical and spinal assessment by 5% each.

3. The claimant also argued that the pre-existing impairments (if any) were not assessed in accordance with clause 1.31 of the Guidelines.

4. The claimant says that Assessor Herald determined pre-existing impairment by reference to a medico-legal assessment undertaken in 2010 (in relation to a previous motor vehicle accident and relied on by the claimant in that claim) with no reference to another medico-legal assessment undertaken in relation to that accident (relied on by the insurer in that claim). The former suggested WPI’s of 17% made up of: 8% (left shoulder), 5% (neck) and 5% (lower back) whereas the latter suggested a 0% WPI for all injuries.

5. The claimant also complains that the Assessor did not refer to the current medico-legal examination of Dr Bodel or adequately reference the treating records. In essence the claimant says there was no objective evidence of a symptomatic pre-existing impairment.

6. Following the Panel’s report to the parties after its initial meeting, the claimant provided additional submissions[7]. The claimant confirmed that the claimant raises issues with the assessment of the claimant’s left shoulder, cervical spine and lumbar spine. The claimant did not raise any issue with the assessment of the claimant’s right shoulder. The claimant did not make any argument concerning the eight injuries the Assessor found had recovered.

   [7] Document AD8 in the Commission’s electronic file.

7. The claimant’s submissions do not raise any issue with the Assessor’s assessment of her current impairment only the assessment of the pre-existing impairment.

8. In terms of how that pre-existing impairment should be assessed the claimant submits:

   (a)   after her first accident, she attended Liverpool hospital where she was diagnosed with a soft tissue injury and no others;

   (b)   Dr James Bodel assess the claimant on 2 March 2020 with a WPI of 21%;

   (c)   Dr Bodel had considered the claimant’s medical records and was of the view that there was “no indication clinically for any pre-existing abnormality or condition and no basis for a deduction for pre-existing impairment”, and

   (d)   the MRI arthrogram of 19 January 2018 points to significant pathology compared to the pre-accident ultrasound in 2009 which revealed no abnormalities and Dr Lew Pierides found no impairment at all in respect of the shoulders.

Insurer’s submissions

1. The insurer did not apply for a review of Assessor Herald’s decision in relation to the claimant’s left shoulder surgery.

2. The insurer opposed the matter proceeding to review of the WPI dispute on the basis there was no cause to suspect an error in the original assessment and if there was one, it is not material. On the issue of materiality, the Panel notes that the combined values of the claimant’s current impairment would have been 22%, but for the reduction for pre-existing impairments. That would have entitled the claimant to damages for non-economic loss which would be a material change to the outcome of the dispute.

3. In terms of the alleged error of the reduction for pre-existing impairments, the insurer says the assessor found the claimant never fully recovered from her 2009 accident, on the basis of the records before him. In undertaking his assessment, he then utilised Dr Woo’s assessment which was open to him.

4. The insurer’s submissions in support of the original medical assessment noted the 14 body parts listed by the claimant and compared those areas of the body injured to the 2009 claim and which body parts had been mentioned in the claimant’s medico legal assessments and noted that only four injuries contributed to the claimant’s experts’ impairment assessments (both shoulders, neck and psychological injury).

5. In terms of the right shoulder the insurer noted:

   (a)   the claimant first reported left and right shoulder pain in November 2017 and was referred for an ultrasound a year after the accident;

   (b)   she has needed no further treatment for the right shoulder, and

   (c)   the claimant did not report a right shoulder injury to Dr Harrington when examined on 7 May 2018.

6. The insurer submitted (in the original medical assessment) that in respect of the left shoulder:

   (a)   the surgery was disputed;

   (b)   there was evidence of rotator cuff tendinopathy in 2009;

   (c)   it was more than a year after the accident before the ultrasound of the left shoulder was done, and

   (d)   Dr Harrington’s diagnosis was an aggravation of underlying conditions which would have resolved.

7. In respect of the neck, GIO notes that the claimant attended a physiotherapist in August 2017 complaining of chronic back pain but not neck pain. The claimant had no treatment for her neck for 11 months after the motor accident. Dr Harrington diagnosed a soft tissue injury.

8. In further submissions dated 4 March 2022[8] GIO:

   (a)   confirms the assessments in issue are those relating to both shoulders, the neck and the lower back;

   (b)   notes the claimant does not dispute the current impairment assessments undertaken by Assessor Herald or the pre-existing impairment values but that she disputes only the reasons or rationale for the deduction;

   (c)   the claimant had pre-existing tendinopathy and deterioration of the collagen in her left shoulder;

   (d)   the insurer relies on Dr Harrington;

   (e)   the insurer relies on the records of Dr Said which “does not suggest an exacerbation or elapse of the claimant’s pre-existing physical conditions but rather a continuation of her condition from which she would have suffered”, and

   (f)    the method set out in clauses 1.31 – 1.33 of the Guidelines requires there to be objective evidence of a pre-existing symptomatic impairment the value of which must be calculated and subtracted from the current assessed WPI.

REVIEW OF THE EVIDENCE

[8] AD9 in the Commission’s electronic file.

The claim form

1. The claim form[9] discloses that the claimant is 51 years of age and that she had an ‘MVA – more than 5 years ago’. Ms Krikoor was a passenger in the middle car of three. There was a rear-end collision and Ms Krikoor’s vehicle was pushed into the vehicle in front.

   [9] Page 13 of the claimant’s bundle.

2. The claim form discloses injuries to the neck, both shoulders, the right hip, wrist and ankle, lower back, chest, headaches and psychological issues.

3. The claimant disclosed that she had a previous ‘lower back’ injury or condition.

4. The medical certificate attached to the claim form signed by Dr Said[10] and dated 21 October 2016 diagnosed:

   (a)   chest wall pain;

   (b)   thoracic back pain;

   (c)   neck pain ;

   (d)   pain in right and left shoulder more in right shoulder;

   (e)   right wrist pain;

   (f)    lower back pain;

   (g)   headaches anxiety, and

   (h)   bilateral knee pain.

   [10] Page 463 of the insurer’s bundle.

5. The Panel notes there is no reference in Ms Krikoor’s list of injuries of the right or left hand (although there is mention of right wrist) and there is no mention of left hip, left knee or right knee. The Panel also notes that the medical certificate signed as true and correct of hand, hip or right ankle pain.

Chronology[11]

[11] This is a chronology which focuses on the disputed body areas namely the shoulders and neck and back.

1. The Panel developed a chronology based largely on the notes of the claimant’s general practitioner, Dr Faiz Said of MP Medical Centre[12] and other records provided by the parties up to December 2019. The chronology is annexed to these reasons.

   [12] Both the claimant and the insurer have included records from Dr Said in their bundles. The insurer’s bundle appears to be more comprehensive at about 1160 pages compared to only 280 in the claimant’s bundle. To avoid unnecessary footnoting, the Panel has included the page numbers to reference the details of the record.

2. There are a number of pre-accident letters from Dr Paul Teychenne to Dr Sanki:

   (a)   20 May 2010 – pain in neck, numbness, weakness, dropping things, two days after pain in lower back radiating to left leg. Vertigo (p 1,478).

   (b)   24 May 2010 – no evidence of nerve root compression lumbar or cervical (page 1,473).

   (c)   28 May 2010 – report of the lumbar spine EMG (page 1,472).

   (d)   12 July 2010 – constant pain in the left and right side of the neck down the arms and into the fingers. EMG was normal but right carpal tunnel syndrome not present with nerve conduction study (page 1,471).

   (e)   15 July 2010 – the claimant reported pain in the left and right buttock down into the left and right legs and to the feet. More pronounced on the left side. She had pain over the lumbar spine. He was going to do an EMG and would consider an MRI (page 1,469).

   (f)    16 July 2010 – bilateral radiculopathy in S1 and at C7 (1,470).

   (g)   26 August 2010 – MRI of the lumbar spine showed small disc protrusion – “I did find evidence of a bilateral S1 radiculopathy consistent with this”. He was going to arrange an MRI of neck on basis of “I did find some evidence consistent with a bilateral C7 radiculopathy” (page 1,468).

1. The Panel made an enquiry with the parties about Dr Teychenne’s records to see if there had been an attendance after 26 August 2010. The claimant’s solicitor advised that his client did not remember a further attendance. The insurer’s solicitor advised that Dr Teychenne refused to produce any documents without a subpoena. In the circumstances, the Panel determined they would proceed without further enquiries.

2. In Dr Sanki’s handwritten notes there are 23 entries commencing on 13 November 2009 with the last 8 March 2014. Of particular relevance to the disputes before the Panel are the following entries:

   (a)   4 April 2012 - turning her head creates the pain in the neck and pain left shoulder down left arm. Unable to get off her bed to walk. Numbness legs and lower back (page 1,455).

   (b)   23 August 2012 too scared for MRI and the entry includes a list of complaints of pain left shoulder, neck, carpal tunnel, lower back and a fifth area which is illegible. There is a note concerning reports from Dr Paul Teychenne, but it is not clear what reports he had or did not have from that Doctor (page 1,456).

   (c)   7 February 2013 “unable to sleep last night due to pain left shoulder, unable to extend left arm”. MRI left shoulder (page 1,457).

3. The claimant provided copies of Dr Bassel Hassan’s records[13]. Dr Hassan is a neurologist, and his records include three letters to Dr Said as follows:

   (a)   13 December 2017 – the claimant presented with neck pain, bilateral hand numbness, lower back and right leg pain. The claimant reported hand symptoms for five years (that is 2012) more so on the left; moderately severe neck pain with no radiation; lower back pain over the past year, aching in the right lower back and buttock occasionally radiating into the right thigh and calf. He was of the view the hand symptoms were due to mild carpal tunnel syndrome. He organised MRIs of the neck and lower back. The car accident was not mentioned.

   (b)   31 January 2018 – presentation for follow up after MRI of the cervical spine which showed mild degenerative changes but nothing to account for hand numbness although they explain the neck pain. Lumbosacral MRI shows mild degenerative changes only. Again, there is no mention of the car accident.

   (c)   5 December 2018 – the claimant presented due to two episodes of loss of awareness and one episode of change in visual perception. She had “blacked out” while driving and had two episodes while not in a motor vehicle and not involving blacking out. He organised a “semi-urgent sleep-deprived EEG” and a brain MRI and advised her not to drive.

   [13] Identified as AD10 in the Commission’s electronic file.

Medico-legal reports 2009 accident

1. The claimant relies on a report from Dr Lew Pierides dated 30 June 2010[14]. He has a history of the claimant being a pensioner who does not work in paid employment. He notes the September 2009 accident occurred when Ms Krikoor’s son was driving. He turned right across traffic and the passenger side (where she was seated) took the brunt of the impact. Dr Pierides records her treatment namely: attendance at hospital, attendance a few days later on her general practitioner (GP), a referral to Dr Sanki (general surgeon), physiotherapy, hydrotherapy and a referral to Dr Teychenne and Professor Graham Cumley (surgeon).

   [14] Page 39 of the insurer’s bundle.

2. The claimant complained to Dr Pierides of pain in the left side of her neck and left shoulder, left hip and low back pain. Dr Pierides examined the claimant and reviewed the radiology. He noted pain behaviours and inconsistency. He diagnosed soft tissue injury to the neck with jarring of other parts of her body but considered there was no evidence of ongoing injury. He assessed whole person impairment at 0% for each of the neck and lower back.

3. Dr Pierides examined the claimant’s shoulders noting the claimant complained of left neck pain, left shoulder injury and her left hand was numb at night. He found a full range of movement in the right shoulder and a full range of left shoulder movement other than for flexion and abduction where it was 60-90 degrees and inconsistent.

4. Dr Alex Woo’s report dated 7 September 2010 is addressed to the claimant’s previous lawyers, Gajic and Co.[15] He took a history of the September 2009 accident, the claimant being driven to hospital, developing neck pain first then back pain and left arm pain and numbness.  She told him she was not employed at the time of the accident. The claimant was taking Mobic, Naprosyn, Brufen and Panadol Osteo for her pain.

   [15] Page 564 of the claimant’s bundle.

5. Dr Woo recorded complaints of neck pain, headache, dizziness and left shoulder and arm pain with numbness of the left arm and fingers of the left hand. She complained of shaking in the left hand and dropping things. Ms Krikoor had back pain and pain in the left hip radiating down the left leg to the heel and numbness in the left toes.

6. The claimant’s neck extension and flexion movements were reduced but her neck was normal when turning side to side. The left shoulder was tender, and movements restricted. Flexion was 90 degrees and abduction 90 degrees (the same as for Dr Pierides). Left hand grip was noted to be ‘significantly weaker than the right, the right shoulder was normal. Lumbar spine movements were all restricted but there was no neurological deficit in the lower limbs.

7. Dr Woo diagnosed neck and back injuries with symptoms and signs of possible radiculopathy and a strain injury to the left shoulder with pain and stiffness and rotator cuff tendinopathy. He thought the prognosis for the neck and back injuries were not good in the long term and she would have ongoing neck and back pain and numbness in the left arm and leg. He was uncertain how her left shoulder injury would pan out in the long term.

8. He expressed the view the claimant had a 17% WPI – DRE category II for each of the neck and the back and 8% for the left shoulder.

Medico-legal reports 2016 accident

1. Dr James Bodel saw the claimant on 11 September 2017. He takes a history of the accident and that “she was complaining of widespread pain”. Although Dr Bodel was not given a history of previous injuries or complaints, he does have a history of a previous motor vehicle accident but the claimant did not know whether it had settled or not. It would appear Dr Bodel did not, at that time, have the records that are currently before the panel.

2. Dr Bodel noted mild issues with the neck but “grossly restricted range of shoulder movement in both shoulders”. By comparison with Dr Woo and Dr Pierides, Flexion was measured in both right and left at 90 degrees and abduction at 90 degrees. She had backache and some restrictions but no problems with the knees and full range of hip knee ankle and movements. He diagnosed multiple soft tissue injuries with reasonable prognosis. He assessed WPI at 21%.

3. In his report of 2 March 2020, Dr Bodel had received the pre-accident records (although he does not make mention of Dr Woo’s or Dr Pierides’ assessments) and again he assessed her WPI as 21% - 9% for the right upper limb, 9% for the left upper limb and 5% for the lumbar spine. He assessed DRE 1 or 0% for the neck injury.

4. A supplementary report refers to the letter of instructions from the solicitor referring to the previous accident as 10 September 2009, the list of injuries and the resolution of those injuries.

5. The insurer relies on two reports from Dr Chris Harrington orthopaedic surgeon.[16] In his first report he notes a history of immediate onset of pan in her body of which the neck, left shoulder and lower back were the main complaints.

   [16] The first is dated 9 May 2018 and is found at page 56 of the insurer’s bundle and the second dated 13 August 2020 is found at page 17.

6. Dr Harrington noted the previous accident and the assessments ranging from 0% to 17% and 2014 radiology reports referring to ‘degenerative changes in her spine’ and the previous diagnosis of fibromyalgia.

7. At the examination her current complaints were pain in the left shoulder localised around the deltoid. Her next main complaint was lower back pain at the belt line with stiffness in the morning and she had episodes of flare ups with pain down her right leg past her knee with pins and needles. He also records complaints of neck pain to the midline but with no radicular symptoms or referred pain. She had tingling in her left hand.

8. On examination he detected some inconsistencies between informal observation and physical examination. He refers to behaviour he terms “auto amputation” of the left arm and gross inconsistencies in movement of her neck. He diagnosed soft tissue injuries and was sceptical about the nature of her injuries and the extent of her symptoms and found no assessable impairment. He noted flexion and abduction in the left arm movements of 60 degrees.

9. In his second report he refers to the GP clinical notes and pre-accident radiology confirming degenerative changes in the neck and lower back.

10. He notes her arthroscopic surgery which made no difference to her pain and lack of movement. Her shoulder is said to be her main complaint. Her neck pain had remained unchanged, and she reported altered sensation in two fingers of her left hand. In the lower back she reported radiation all the way down her right leg to the ankle.

11. He did not report inconsistency on this occasion but confirmed his views any complaints today were due to underlying degenerative changes.

PROCEDURAL MATTERS

Teleconference 24 January 2022 and directions

1. Following the first meeting of the review panel a report and directions document dated 24 January 2022 was issued to the parties.

2. The parties were provided with the Panel’s chronology of treatment document and records relevant to the issue in dispute and requested the parties review the chronology and advise of any amendments or omissions.

   (a)   The claimant made no comments and suggested no changes.

   (b)   The insurer made no comments and made no suggestions for change.

3. The parties were asked to provide any further documents from Dr Teychenne after 26 August 2010. The parties were also asked to provide records from Dr Ibrahim Hanna and Dr Bassel Hassan to whom the claimant had been referred by Dr Said for specialist treatment.

   (a)   The claimant said she did not recall any further attendance on Dr Teychenne. Dr Teychenne refused to provide documents to the insurer without a subpoena.

   (b)   The claimant remembered a referral to Dr Hanna but not seeing him. The insurer confirmed with Dr Hanna’s rooms that there were no attendances.

   (c)   The claimant provided the documents from Dr Hassan.

4. The Panel also sought information regarding settlement of the 2009 claim, in particular whether a clam was made for non-economic loss and whether the settlement included a component for non-economic loss. The claimant queried the relevance of the documents and said the deed of release did not provide a breakdown of the settlement. The Panel was of the view that if both parties in the 2009 claim had allowed damages for non-economic loss that could be interpreted as the insurer acknowledging the existence of a permanent impairment beyond that indicated by Dr Pierides however in the light of the absence of any information about the settlement, the Panel determined not to consider that any further.

5. The Panel noted the 13 injuries listed and requested confirmation from the parties that it was only Assessor Herald’s assessment of left shoulder and cervical spine which were in dispute. The claimant confirmed that the assessment of the left shoulder, cervical and lumbar spine were in issue. The insurer also confirmed this.

6. The Panel also asked the parties for any relevant case law on the interpretation of clause 1.31 and submission in respect of the approach to be taken or not taken by a medical assessor and therefore the Panel. Neither party has provided any relevant cases and the claimant restated her reliance on Dr Pierides and Dr Bodel and the change in imaging of her left shoulder to suggest there was no evidence of pre-existing impairment. The insurer summarised the provisions but otherwise gave no additional submissions on the approach to be taken.

Was a re-examination necessary?

1. The Panel advised the parties, in its report and directions document that no re-examination would be undertaken on the basis of the evidence before it at that stage. Because the real issue was not Assessor Herald’s findings in relation to the claimant’s current impairment or his pre-existing impairment values but the reasoning for his deduction for the pre-existing conditions. Neither party took any issue with that approach.

2. The Panel is mindful of the Court of Appeal’s guidance in Sydney Trains v Batshon[17]:

   “[41] Under the motor accidents legislation, the default position where there is review of a medical assessment is that the review ‘should generally include a re-examination of the claimant’ …”

   [17] [2021] NSWCA 143 Leeming JA (with White JA and McCallum agreeing).

3. The Panel notes that neither party calls for a re-examination.

4. Dr Abu-Arab noted in October 2011 (page 503 insurer’s bundle) that the claimant’s memory and concentration had been affected by her anxiety and depression and insomnia. He said her condition was chronic and long-lasting. Assessor Herald reports[18] that “the claimant’s memory of the accident was somewhat cloudy”. Dr Bodel noted in 2017 that the claimant did not know whether her 2009 claim had finalised. In 2020 Ms Krikoor told Dr Bodel there was a settlement, but she could not remember what parts of her body were injured in the 2009 accident.

   [18] Page 4 of his decision.

5. Bearing in mind the motor accident the subject of the claim before the panel is now over five years ago and the earlier accident occurred over 12 years ago and taking into account the claimant’s impaired recall of events, the Panel was of the view a re-examination of the claimant may be of limited assistance to the assessment of the claimant’s pre-existing impairment.

6. Noting that the determination of any pre-existing impairment requires a consideration of whether there is objective evidence of that impairment as opposed to the subjective evidence of the claimant, the Panel was of the view that a re-examination should not be conducted. The focus of the Panel’s efforts has been a review of the documentation provided by both parties.

CONSIDERATION OF THE ISSUE OF PRE-EXISTING IMPAIRMENT

The approach to the assessment of a pre-existing impairment

1. Clause 1.31 requires there to be “objective evidence” concerning a “pre-existing symptomatic permanent impairment”.

2. There is certainly evidence from the GP’s records of pre-existing complaints in relation to the same areas of the body the subject of this assessment (neck, back, both shoulders). For example, Dr Said the claimant’s longstanding GP, has recorded left sided neck pain in his notes as far back as 2002 and in 2003, Dr Rozario recorded pain in the neck, the entire upper limb and low back pain. Radiology was first requested in the left shoulder, cervical and lumbar spines in June 2005. Bilateral shoulder pain appears in the notes in August 2009.

3. However, there is a distinction between pre-existing symptomatic conditions and pre-existing symptomatic impairment, see QBE Insurance (Australia) Limited Alawia (Alawia)[19]. Whether there is an impairment resulting from pre-existing conditions is a matter for the Panel in the exercise of its judgment and clause 1.32 recognises the importance of “reliable clinical information” in exercising that judgment.

   [19] [2016] NSWSC 1875 at paragraphs 74 – 76.

4. In Allianz v MAA[20] Hidden J was considering a claimant who had two motor vehicle accidents and the review of a WPI conducted in relation to the second. His Honour considered the review panel (and the original assessor) should have assessed the WPI from the first accident at the time it was assessing the second accident. In that case the review panel had found the first accident caused a depressive condition and the second accident aggravated or exacerbated it. When considering clause 1.23 of the former Guidelines (currently clause 1.21) his Honour said:

   “That clause requires the evaluation of impairment as at the time of assessment, whether that impairment arises directly from the accident in question or is a pre-existing or subsequent impairment within the meaning of clauses [1.31] and [1.34]”.

   [20] 2011 NSWSC 2012

5. The decision of Rothman J in Insurance Australia Group Limited t/as NRMA Insurance v Keen[21] gives some further guidance:

   90.   “131           From the foregoing, it is clear that the Assessor has reached his own independent diagnosis and assessment utilising the Guidelines, by assessing the impairment as it existed at the time of the assessment and deducting from that WPI the assessment made by the Assessor for the contribution of the pre-existing work injury. That assessment of the pre-existing work injury was consistent with the clinical information available to the Assessor.”

   [21] [2021] NSWSC 113. While this decision was appealed, the Appeal did not consider the interpretation of the identical clause to 1.31.

6. Clause 1.31 and the decisions of the Courts above suggest that it is for this Panel to determine:

   (a)   whether the claimant had a pre-existing symptomatic impairment;

   (b)   the WPI of that pre-existing symptomatic impairment, and

   (c)   deduct that from the current WPI to determine the WPI resulting from the current motor accident.

7. Section 1.31 does not require the Panel to restrict itself to a search for and consideration of pre-accident impairment assessments such as those undertaken by Drs Pierides and Woo. It is for the Panel to undertake an assessment of the claimant’s impairment from pre-accident injuries, accidents or conditions based on reliable evidence including clinical information provided by the parties.

What is the evidence in relation to pre-existing impairment?

1. The claimant relies on two reports from Dr Bodel. The 2017 report suggests he did not have all of the pre-accident records. His 2020 report takes a history of the previous car accident with the claimant indicating she does not remember what parts of her body was injured. At page five of his report, Dr Bodel refers to “letters from Dr Said” which refer to a number of medical issues which he identifies as sacroiliac joint pain, carpal tunnel, neck pain with radiculopathy, anxiety and depression. It is not clear to the Panel from this comments whether Dr Bodel had the entirety of the pre-accident medical records from Dr Said.

2. Dr Bodel says at the conclusion of his report “there is no indication clinically of any pre-existing abnormality or condition and no basis for a deduction for pre-existing impairment.” With respect, the Panel is of the view that the chronology provides a significant amount of evidence about pre-existing complaints beyond those noted by Dr Bodel. The Panel also notes that Dr Bodel has failed in his report to consider the reports of Drs Woo and Pierides. The Panel is therefore not of the view that Dr Bodel’s opinion about there being no evidence of a pre-existing impairment is a considered and valid opinion.

3. In Alawia, the objective evidence in issue was a Centrelink certificate completed shortly before the claimant’s accident. In Allianz v MAA the evidence was the fact of the first accident and the medical evidence available in relation to it. In Keen, the evidence was the fact of an earlier work-related injury and the medical evidence available in relation to that injury which included ongoing recorded complaints of pain and treatment being provided to the claimant between his two accidents.

4. In the matter before the Panel there is objective evidence of a pre-existing condition in the form of the uncontested fact that Ms Krikoor was involved in an earlier motor vehicle accident and the subsequent records.

5. In the claim arising from her 2009 accident, Ms Krikoor relied on a report of Dr Woo from September 2010 to assert she had a whole person permanent impairment of 17% and therefore an entitlement to damages for non-economic loss arising out of the injuries she sustained in that accident. That opinion was expressed in a report to the claimant’s lawyers, Gajic Lawyers and is said to have been prepared in accordance with the District Court’s Expert Witness Code of Conduct. Assessor Woo’s report is detailed, and he has undertaken what appears to be a thorough examination of the claimant’s neck, back, left shoulder and left wrist. Ms Krikoor does not rely on that report in relation to the current claim. She effectively tells the Panel to disregard this opinion that she relied on to argue for non-economic loss damages arising out of the 2009 accident and for the Panel to instead prefer the opinion of Dr Pierides in order to sustain a claim for non-economic loss damages arising out of this accident. This appears somewhat disingenuous to the Panel.

1. Dr Pierides’ report is from June 2010, addressed to AAMI, presumably the third-party insurer of the motor vehicle that caused the 2009 accident. This report has also been prepared in accordance with the District Court’s Expert Witness Code of Conduct. It is also detailed and reports a considered examination. GIO does not rely on this report but urges the Panel to prefer the evidence of Dr Woo. This too suggests a lack of candour on the part of the insurer although the Panel notes the insurers in the two claims (AAMI and GIO) are different although from the same family of insurers (Suncorp). The Panel notes that Dr Pierides found no impairment in the claimant’s neck or lower back and shoulder.

2. The Panel notes that neither of the two doctors appear to have any of the pre-2009 records which raise the possibility of pre-existing impairments before the first accident. For example, Dr Said certified on 9 June 2009 that the claimant had a permanent condition of generalised joint pains which, along with other conditions supported Ms Krikoor’s application for Commonwealth Centrelink benefits. On 3 August 2009 Dr Said noted the claimant’s chronic joint pain with bilateral shoulder pain and “limitation of shoulder movement”.

3. The Panel notes the reports in relation to the 2009 accident were written following examinations six years before the accident the subject of the current claim.

4. In IAG Limited t/as NRMA Insurance v Keen[22] Justice Leeming made the following observations in terms of the task for a medical assessor (which would include this panel).

   “[40] The function of the assessor is quite different [to the Court]. The assessor was obliged following the referral by SIRA to determine a quintessentially factual issue: the degree of permanent impairment suffered by Mr Keen caused by the motor accident, reduced to a percentage calculated in accordance with the Guidelines. As the High Court emphasised, speaking of the decisions of medical panels under the Accident Compensation Act 1985 (Vic) in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [47], the Medical Panel was not required to decide a dispute or make up its mind by reference to competing contentions or competing medical opinions:

   ‘The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.’

   [41] Dr Meakin received more than 2,000 pages of material. His task was to make binding factual determinations, following his review of that material and following a clinical examination of Mr Keen. He did just that. It was not part of his function to assess the cogency of the ‘case’ advanced on behalf of the insurer”.

   [22] [2021] NSWCA 287 as per Leeming JA.

5. Applying the above passage to Ms Krikoor’s claim, it is not the role of this Panel to determine which of the two medico-legal reports relied on in the 2009 claim should be preferred over the other. The findings of Drs Woo and Pierides whilst not determinative of the degree of the claimant’s pre-existing impairment do provide some evidence of complaints of pain and restriction of movement and at least Dr Woo found on the day he examined the claimant a WPI of 17%. Dr Woo’s assessment was undertaken after Dr Pierides and after the investigations were completed by Dr Teychenne.

6. In the seven years between the two motor vehicle accidents, there are over 100 attendances on medical practitioners noted in the chronology and there were referrals to specialists and the development of care plans for allied health providers for a variety of conditions including neck pain, back pain and shoulder pain. The Panel considers all of this material to be objective evidence of the claimant’s pre-2016-accident conditions and the impairment arising from those conditions.

7. Dr Said certified twice that the claimant had neck pain with radiculopathy (and bilateral shoulder pain), left carpal tunnel syndrome (pain in left hand with numbness), depression, degenerative joint disease and reflex dysphasia in support of her claim for access to public housing in 2009 and 2010. Dr Said certified these conditions were having a moderate impact with long term implications for the claimant. Both Dr Said and Dr Sanki issued at least nine certificates supporting claims for Commonwealth Centrelink benefits. Two medical practitioners certifying the claimant’s entitlement to the receipt of government benefits for allegedly permanent conditions from 2009 to 2014 is, in the opinion of the Panel, objective evidence of impairment associated with those permanent conditions.

8. Dr Said’s certificates refer to the claimant being unfit for work or study for a variety of conditions including pain and restriction of movement to her neck, lower back and shoulders. On 29 August 2016, less than a month before the car accident the subject of the claim before the Panel, Dr Said certified that Ms Krikoor was one of his patients and was suffering from “degenerative joint disease, back pain, left carpal tunnel, bilateral sacro-iliac joint pain, fibromyalgia, cervical and lumbar disc disease”.

9. The Panel is comfortably satisfied that the claimant was suffering from medical conditions and experiencing symptoms in her neck, back and shoulders between her two car accidents and leading up to her 2016 car accident. The Panel is comfortably satisfied that these conditions and symptoms would have resulted in permanent impairments immediately before her 2016 car accident.

What is the pre-existing condition and impairment assessment?

Cervical spine - neck

1. The Panel notes that the chronology and other records include the following diagnoses:

   (a)   Dr Pierides – June 2010 – strain or soft tissue injury neck;

   (b)   Dr Teychenne - August 2010 – evidence consistent with a bilateral C7 radiculopathy;

   (c)   Dr Woo - September 2010 – neck injury with signs of radiculopathy;

   (d)   Dr Said - September 2010 – neck pain with radiculopathy;

   (e)   Dr Rozario - August 2011 – fibromyalgia (this diagnosis was adopted by Dr Said supporting the claimant’s application for a disability support pension (DSP));

   (f)    Dr Said - September 2012 - polyarthritis of the spine (the medical Centrelink certificate at this time notes severe pain and deterioration expected);

   (g)   Dr Said – September 2013 – diagnosed for the purposes of a Centrelink medical certificate neck pain with limitation of neck movements;

   (h)   Dr Said - May 2014 – diagnosed cervical disc disease and polyarthralgia and diagnosed at this time for the purposes of a Centrelink certificate, cervical bilateral radiculopathy. Entries in May 2015 and February 2016 refer to neck pain and limitation of neck movements, and

   (i)    Dr Said - 29 August 2016 – certified the claimant suffered from degenerative joint disease, fibromyalgia and cervical disc disease.

2. The Panel notes that the records of the GP, specialists and medico-legal experts from 2010 provide objective evidence of pre-existing symptomatic impairments. The Panel notes that with pain and limitation of neck movements, the claimant would be categorised as having at least a DRE I impairment.

3. The Panel notes diagnoses of radiculopathy were made by Dr Teychenne in 2010 (and supported by Dr Woo). While noting there was evidence of radiculopathy, Dr Teychenne does not set out what that evidence is. In particular the Panel notes there is no reference to any or all of the five signs of radiculopathy prescribed or defined in clause 1.138 of the Guidelines. The Panel is not satisfied, in their clinical judgment, that before the 2016 car accident the claimant would have been categorised as DRE III.

4. Categorisation of DRE II requires either muscle guarding or dysmetria or non-verifiable radicular complaints (loss of sensation, power or reflexes) following a nerve root distribution. The claimant has complained since 2009 of a variety of symptoms including weakness and loss of sensation and that her symptoms have been more left sided that right (e.g. Dr Sanki in April 2012). While noting the difficulties of assessing today, an impairment present more than five years ago, the medical members of the Panel are comfortably satisfied that the claimant would have had at least dysmetria and more likely non-verifiable radicular complaints and therefore would have been categorised as having a DRE II impairment of 5% had she been assessed immediately before her 21 September accident.

Lumbar spine - lower back

1. The Panel notes the chronology and other medical records indicate the following diagnoses:

   (a)   Dr Teychenne - August 2010 – evidence consistent with bilateral S1 radiculopathy;

   (b)   Dr Woo – September 2010 - back injury with signs of radiculopathy;

   (c)   Dr Said - October 2020 – lumbar disc injury;

   (d)   Dr Rozario - August 2011 - fibromyalgia (this diagnosis was adopted by Dr Said in the claimant’s application at this time for a disability support pension);

   (e)   Dr Said - September 2012 – polyarthritis of the spine which in the Centrelink Certificate signed by him noted severe pain and deterioration expected;

   (f)    Dr Said - September 2013 – in the medical certificate completed for Centrelink - back pain (limitation of back movements);

   (g)   Dr Said - May 2014 - polyarthralgia and lumbar disc disease;

   (h)   Dr Said - March 2016 – back pain and limitation of the back movements, and

   (i)    Dr Said - 29 August 2016 - degenerative joint disease, back pain and lumbar disc disease.

2. The Panel notes that the records of the GP, specialists and medico-legal experts from 2010 provide objective evidence of pre-existing symptomatic impairments. The Panel notes that with pain and limitation of back movements, the claimant would be categorised as having at least a DRE I impairment. The Panel notes diagnoses of S1 radiculopathy were made by Dr Teychenne and supported by Dr Woo in 2010 however the records do not disclose which of the five signs of radiculopathy led to that diagnosis and none of the radiology has confirmed significant cord or nerve root compression. The Panel is not satisfied in their clinical judgment that before the 2016 car accident the claimant would have been categorised as having a DRE III impairment.

3. Categorisation of DRE II requires either muscle guarding or dysmetria or non-verifiable radicular complaints (loss of sensation, power or reflexes) following a nerve root distribution. The claimant has complained after 2009 of a variety of symptoms including weakness and loss of sensation in the lower limbs there is reference by Dr Sanki and Dr Teychenne of more left sided symptoms. While difficult, the medical members of the Panel, using their clinical judgment are comfortably satisfied that the claimant would have had at least dysmetria and more likely non-verifiable radicular complaints in her lower limb and therefore if she had been assessed shortly before her 21 September 2016 accident, she would have had an impairment of 5% being DRE category II.

Left shoulder

1. The claimant relies on the report of Dr Pierides who found no impairment.  This is correct, but Dr Pierides did find restriction of movement in the claimant’s shoulders. Dr Pierides dismissed any impairment associated with that restriction because of the alleged inconsistency in Ms Krikoor’s movements.

2. The claimant’s submissions assert that the MRI arthrogram of 19 January 2018 points to significant pathology compared to the pre-accident ultrasound in 2009 which showed no abnormalities. That too is correct. The Panel notes the first radiology of the claimant’s left shoulder appears in June 2005. This was undertaken due to complaints of pain in the left shoulder. Imaging on 16 September 2009 did not show any abnormality. However, an ultrasound in November 2019 suggested left sided supraspinatus tendinosis a diagnosis adopted by Dr Sanki (8 March 2010). Between 2009 and 2019, an ultrasound undertaken in August 2012 also suggested left shoulder supraspinatus tendonitis and this diagnosis was accepted by Dr Said in the claimant’s application for Centrelink benefits on 12 September 2012. In June and July 2014, the claimant reported pain and restriction of movement although the left shoulder ultrasound was reported to be normal. The medical members of the Panel cannot explain the normal ultrasound from 2009 and 2014 but imaging findings supportive of shoulder problems in 2012 and 2019. After the normal 2014 finding the Panel notes the claimant had what appears to be two falls (December 2014 and March 2016) and in May 2016 attendance at a chiropractor for amongst other things shoulder pain which was getting worse.

3. Based on the objective evidence including imaging and continued recorded complaints of left shoulder pain from before the 2009 accident to the date of the 2016 accident, the medical members of the Panel are satisfied that the claimant suffered from left sided supraspinatus tendinosis at the time of the 2016 accident.

4. In terms of evaluating the value of the pre-existing impairment for that condition, the Panel at first considered clause 1.51 of the Guidelines. This clause permits the use of a contralateral uninjured joint as a baseline if there is a “reasonable expectation that the injured joint would have had similar findings to the uninjured joint before injury”. It could therefore be within the Panel’s discretion to take the claimant’s right shoulder as it is now (4% WPI) as a baseline for the pre-2016-accident impairment of the left shoulder. Using this methodology this would result in a left shoulder impairment due to the accident-related rotator cuff tear of 6% (10% minus 4%).

5. The Panel is of the view that the above methodology is not sound. The right shoulder was not said to have been injured in the 2009 car accident and there is no pre-accident imaging of the right shoulder. However, the claimant had complained of pain and restriction of movement in both shoulders over time and particularly between her two accidents. The claimant therefore could have had restriction of movement in both shoulders before the 2016 accident and it would be very difficult to estimate any right shoulder restriction, if any at that time, without measurements.

6. The preferred methodology for estimating the value of the pre-existing impairment is that of the range of motion model. The Panel has found that immediately before her 2016 accident the claimant was suffering from left sided supraspinatus tendinosis. This condition, in the clinical experience of the medical members of the Panel causes restriction of shoulder movement.

7. The Panel notes that the normal range of shoulder flexion and abduction movement is 180 degrees and that the claimant has demonstrated the following ranges of motion over time:

   (a)   Dr Pierides 2010  flexion 60 – 90             abduction 60 – 90

   (b)   Dr Woo 2010  flexion 90  abduction 90

   (c)   Dr Bodel 2017  flexion 90  abduction 90

   (d)   Dr Harrington 2018                 flexion 60  abduction 60

   (e)   Dr Bodel March 2020             flexion 90  abduction 90

   (f)    Dr Harrington August 2020    flexion 120                   abduction 90

   (g)   Assessor Herald 2021            flexion 80  abduction 80.

8. Shoulder motion is the prescribed method of assessment in the Guidelines and the AMA4 Guides provides in 3.1j at page 41 say:

   (a)   The shoulder represents 60% of upper extremity function.

   (b)   There are six planes of motion which contribute to that 60% in the following proportions:

   (i)Flexion                    40%

   (ii)  Extension                 10%

   (iii)  Abduction                 20%

   (iv)  Adduction                 10%

   (v)   Internal rotation       10%

   (vi)  External rotation      10%

   (c)   Each plane of motion is measured, its deviation from normal calculated to obtain an impairment score for the individual plane and multiplied by 60% to obtain a shoulder impairment all of which are then added to obtain an upper extremity impairment which is then converted to a whole person impairment.

9. Ms Krikoor’s left shoulder was examined and measurements taken in 2010 by both Dr Pierides and Dr Woo. They both recorded restriction of movement in flexion and abduction at 90 degrees. Dr Pierides obtained a measurement of 60 degrees and then disregarded the measurements because of inconsistency (between 60 and 90 degrees). The Panel notes that the claimant’s left shoulder measurements in the two planes have been relatively consistent at 90 degrees over time. There is nothing in the records to suggest any improvement between 2010 and 2016. It is a reasonable assumption in the Panel’s view that had she been examined immediately before her 2016 accident, Ms Krikoor would have achieved only 90 degrees of flexion and abduction, this represents a 6% upper extremity impairment (for the loss of flexion) and 4% upper extremity impairment (for the loss of abduction) which converts to a 4% and 2% WPI respectively[23]. This suggests a pre-existing left shoulder impairment of 6% and therefore an accident-related impairment of 4% (10% minus 6%).

   [23] AMA4 Guides Table 3, page 20.

10. The Panel is of the view this is a conservative estimate of pre-existing impairment as only two planes of motion have been included in this assessment and at times the claimant’s recorded movements have been less than 90 degrees[24].

    [24] The claimant relies on Dr Pierides report and his measurements. If his lower measurements of 60 degrees for example were considered, they would generate upper extremity impairments of 8% for flexion and 6% for abduction which convert to WPIs of 5% and 4% respectively.

11. The Panel considers this methodology more reliable and finds therefore the claimant’s pre-existing symptomatic left shoulder impairment should be assessed at 6%.

Right shoulder

1. The Panel notes apart from the first attendance on Dr Said it would appear the claimant has not mentioned the right shoulder until October 2018, two years after the car accident and in the interim had no allied health treatment (such as physiotherapy) for the right shoulder. The Panel is doubtful there was any frank or specific right shoulder injury caused by the accident however the insurer has not disputed causation before the Panel.

2. The claimant has before the September 2016 car accident complained of pain in both shoulders (for example 2 May 2014, 30 September 2013, 13 September 2012) however, there does not appear to be any radiology or other imaging of the claimant’s right shoulder undertaken before October 2018. That ultrasound revealed right rotator cuff tendinosis with minor subacromial bursitis (a different diagnosis to the claimant’s left shoulder problems before the 2016 accident) but no rotator cuff tear.

3. Dr Said has diagnosed at various times fibromyalgia, generalised joint pains, polyarthralgia and so on but has not made a formal diagnosis of any right shoulder condition. Dr Harrington recorded no complaints in relation to the right shoulder in either of his two reports and therefore did not make a diagnosis. Dr Bodel diagnosed “rotator cuff pathology”. Assessor Herald diagnoses an impingement syndrome in the right shoulder.

4. There is no agreed diagnosis of any right shoulder condition however the Panel prefers the diagnosis of Assessor Herald. Noting the parties’ submissions do not raise an issue with the right shoulder assessments and having reviewed the medical records carefully, the Panel is satisfied that there is no objective evidence of any pre-existing impairment of the claimant’s right shoulder.

WHAT IS THE WHOLE PERSON IMPAIRMENT RESULTING FROM THE ACCIDENT?

1. The claimant alleges multiple injuries including neck, back and both her shoulders. The claimant has accepted the findings of Assessor Herald in respect of the other injuries he found had recovered. The Panel notes the chronology supports that view and finds the injuries to the claimant’s thoracic spine, chest, left knee and right knee, left hip and right hip, left hand and right hand and right ankle have recovered and do not give rise to an assessable impairment.

1. Assessor Herald diagnosed soft tissue injuries to the claimant’s neck and back, rotator cuff tear to the claimant’s left shoulder and an impingement syndrome in her right.

2. The insurer has not disputed during the course of this review, causation of the injuries in dispute and has not challenged the decision concerning the claimant’s left shoulder surgery allowed by Assessor Herald.

3. The Panel notes that Dr Said certified within a month of the accident, injuries including injuries to Ms Krikoor’s back, neck and both shoulders and his notes indicate relatively consistent complaints thereafter. The Panel therefore accepts the findings of Assessor Herald and his diagnoses as to injury.

4. The parties did not challenge Assessor Herald’s assessment of the claimant’s current impairments. In the light of the additional documentation placed before the Panel the Panel has undertaken its own assessment of the existence and value of pre-existing impairments.

5. Taking into account the Panel’s findings in relation to the pre-existing impairments above, the claimant’s WPI is as follows:

Body Part or System	Current % WPI	Pre-existing % WPI	% WPI due to motor accident
Cervical Spine	5	5	0
Lumbar	5	5	0
Left shoulder	10	6	4
Right shoulder	4	0	4

CONCLUSION

1. It follows from the above that the claimant’s WPI resulting from the accident on 21 September 2016 is 8% which is not greater than 10%.

2. While the overall outcome is the same, the Panel will revoke the certificate of Assessor Herald due to the difference between his assessment (6% WPI) and the Panel’s (8%).

ANNEXURE - CHRONOLOGY

• 13 May 2002 – attendance on Dr Said for left neck pain and what appears to be ‘soft tissue’ (page 226)[25].

  [25] The notes of Dr Said commence with handwritten cards at page 226 in May 2002. These handwritten notes end at page 237 of the insurer’s bundle with an entry in 2008. They are difficult to read.

• 12 February 2003 – report Dr Loretta Rozario recorded the claimant complaining of pain in her neck and entire upper limb with low back pain and pain in the left leg. The diagnosis then was hypermobile joints (page 74).

• 24 December 2003 – left knee radiology following history of ‘painful left knee’ (page 594).

• 3 June 2005 – radiology of left shoulder (no significant abnormality), cervical spine (normal) and lumbar spine (normal) following history of neck and left shoulder pain and pain in the lower back (page 588).

• 12 August 2005 – radiology of lumbar spine and sacro-iliac joints following history of ‘pain’. No sign of degenerative change, erosions or sclerosis (page 586).

• 24 February 2006 – CT scan of lumbar spine reported as normal (page 579).

• 21 October 2008 – attendance on Dr Said with muscular pain in the left hand and forearm, neck pain and back pain (page 407).

• 26 November 2008 – attendance on Dr Said with neck and mid-thoracic pain (pages 405 and 406).

• 28 November 2008 – cervical and thoracic spine radiology following history of pain. No abnormalities (page 564).

• 13 February 2009 – attendance on Dr Said and referral to Professor Ian Graham for generalised joint pain and myalgia (pages 404 and 848).

• 9 June 2009 – Attendance on Dr Said. Centrelink certificate completed by Dr Said certifying the claimant is unfit for work or study from 9 June to 30 June 2009 due to pelvic pain (temporary), generalised joint pains (permanent) and tendonitis of the feet (page 845). Prescription for Voltaren given (page 399).

• 3 August 2009 – attendance on Dr Said with chronic joint pain – bilateral shoulder pain, limitation of shoulder movement. Reflex, Dizziness and Goitre (page 398).

10 September 2009 – date of first motor vehicle accident

• 14 September 2009 – attendance on Dr Said following car accident, neck pain and left shoulder pain and limitation of the left shoulder movements. Pain in the left hip, left side chest wall, seat belt mark on the left side of the neck (page 397).

• 16 September 2009 – imaging of cervical spine, left shoulder and left hip with no significant abnormality reported (page 553).

• 18 September 2009 – attendance on Dr Said with fever and cough and nose. Neck pain and pain behind the eyes. Prescription for Nurofen Plus and referral for physiotherapy for neck pain and bilateral shoulder pain (pages 396 and 842).

• 13 October 2009 – attendance on Dr Said and referral to Dr Lee for neck pain, left shoulder pain, left hip pain and bilateral ankle pain (pages 394 and 839).

• 23 October 2009 – attendance on Dr Said and referral to Dr A Sanki for neck pain, left shoulder pain, left hip pain and bilateral ankle pain. Medication Mobic and Valium prescribed (pages 394 and 838).

• 9 November 2009 – attendance on Dr Said and motor accident medical certificate signed by Dr Said for the claim form. Injuries noted as neck, left shoulder, left hip pain, left side of the chest. The claimant was said to have been a patient for 10 years. Naprosyn and Panadeine Forte prescribed (pages 393 and 551).

• 10 November 2009 – imaging following history of neck pain and radiculopathy and left sided hip pain. Left hip X-ray (mild degenerative change), CT Cervical spine (no abnormality) (page 549).

• 11 November 2009 – attendance on Dr Said for review of the CT scan of the neck showing thyroid nodules and sclerosis of the hip (page 393).

• 17 November 2009 – ultrasound left shoulder – no tear or impingement but left sided supraspinatus tendinosis (page 546).

• 18 November 2009 – imaging report. Ultrasound left wrist confirms presence of carpal tunnel syndrome. CT scan of lumbosacral spine shows minimal spondylotic change, mild arthritic change in sacroiliac joints and minor disc bulges at L3/4, L4/5 and L5/S1 (page 547).

• 20 November 2009 – attendance on Dr Said for degenerative joint disease with pain in both ankles more to the L ankle (page 393).

• 30 November 2009 – attendance on Dr Said for neck pain with radiculopathy, back pain, left carpal tunnel syndrome, left shoulder, left hip. Limitations of movement (page 393).

• 21 December 2009 – public housing medical assessment form signed by Dr Said citing neck pain with radiculopathy (and bilateral shoulder pain), left carpal tunnel syndrome (pain in left hand with numbness), depression, degenerative joint disease and reflex dysphasia (page 541).

• 5 January 2010 – attendance on Dr Sanki for left thigh and hip and back “to see psychologist” (page 1451).

• 18 January 2010 – attendance on Dr Said and to whom it may concern letter (notes suggest to Dr Sanki) says the claimant is suffering from the following - multiple joints pain, lumbar back pain, degenerative joints disease, bone pain, carpal tunnel syndrome, neck pain depression (pages 390 and 836).

• 5 February 2010 – attendance on Dr Sanki with note “after vacuuming steps … neck pain left arm”. Also pain left hip and left elbow (page 1,451).

• 1 March 2010 – attendance on Dr Said for leg pain and back pain tenderness – degenerative joint disease (page 392).

• 5 March 2010 – attendance on Dr Said for back, neck and bilateral hip pain, Left shoulder and left elbow pain. Painful left shoulder and neck movements, limitations of the back movements pain radiating to legs (page 392).

• 8 March 2010 - report from Dr Sanki to AAMI dated 8 March 2010. Neck injury, pain in the left shoulder, left side of neck, left hip radiating to left thigh and leg, low back pain with weakness of the left leg and numbness in the left hand. He diagnoses disc lesion in the lumbar spine with questionable S1 radiculopathy, left carpal tunnel syndrome and left shoulder supraspinatus tendinopathy (pages 551-553 of the claimant’s bundle).

• 8 March 2010 – Centrelink medical certificate signed by Dr Said certifying the claimant was unfit for work from 1 March to 1 June 2020 due to lumbar disc problems, left shoulder issues and neck pain and carpal tunnel (page 532).

• 10 March 2010 – referral Dr Said to Dr G Gumley for range of motion painful left hand (page 834).

• 29 March 2010 – attendance on Dr Said with neck pain and left carpal tunnel syndrome and left shoulder pain and lumbar disc issues. Polyarthritis (page 388).

• 6 April 2010 – referral by Dr Said to Dr Ibrahim Hanna for ‘headache, neck pain, dizziness and twitching of the left shoulder’ (page 833).

• 6 April 2010 – public housing medical assessment form signed by Dr Said in similar terms to the 21 December 2009 form (page 528).

• 9 April 2010 - further report from Dr Sanki to AAMI dated 9 April 2010[26] notes ‘multiple symptoms of aches and pain almost all over her body’.

  [26] Pages 560 – 561 of the claimant’s bundle.

• 13 May 2010 – report Associate Professor Graham Gumley regarding the claimant’s hands. He says, “It appears much of her symptom is coming from her cervical spine and shoulder”. He asked to see her again after she had seen Dr Teychenne (page 527).

• 8 June 2010 – attendance on Dr Said for degenerative joint disease, Panadol Osteo prescribed (page 387).

• 29 July 2010 – Attendance on Dr Said for lower back, left hip, left shoulder, left knee and left leg pain with limitations of the joints movement. Centrelink certificate completed by Dr Said certifying the claimant is unfit to work or study from 29 July 2010 to 29 October 2010 due to lower back pain, left hip, knee, leg and left shoulder pain and bilateral carpal tunnel syndrome. All of these were said to be an exacerbation of an existing condition with an uncertain prognosis (pages 383 and 830).

• 19 August 2010 – MRI lumbosacral spine – history of pain in the lower lumbar spine down the left leg and into all the toes. No significant disc herniation at L2/3, L3/4, L4/5 but there was a small disc protrusion with a more right sided component but no significant neural impingement (page 523).

• 25 October 2010 – Centrelink certificate signed by Dr Said certifying the claimant unfit to work or study from 31 October 2010 to 31 January 2011 due to left shoulder injury, lumbar disc injury and Vitamin B deficiency (page 522).

• 25 October 2010 in Dr Sanki’s notes (page 1455) is a suggestion her case settled but she attended for neck pain.

• 9 September 2010 – attendance on Dr Said for neck pain with radiculopathy (page 380).

• 17 March 2011 – attendance on Dr Said for neck and back pain, pain radiating to both shoulders, pain radiating to the thighs and referral to Dr Rozario given (page 371).

• 27 April 2011 – attendance on Dr Said for tenosynovitis of the left hand and generalised joint and muscular pain (page 369).

• 24 June 2011 – attendance on Dr Said for left shoulder pain and neck pain – painful movements. Referral by Dr Said to Dr Ibrahim Hanna for dizziness headaches, tremor and weakness (page 813).

• 1 July 2011 – attendance on Dr Said for review of X-ray of neck and left shoulder. Referral by Dr Said to Dr A Sanki for follow up and completion of treatment (page 811).

• 21 July 2011 – attendance on Dr Said and Centrelink certificate completed by Dr Said certifying the claimant is unfit to work or study from 21 July to 21 September 2011 due to depression, sacroiliac pain and hips pain, left ankle pain and swelling (page 808).

• 21 July 2011 – X-ray left ankle showing no abnormality (page 518).

• 26 July 2011 – report Dr Loretta Rozario rheumatologist. The claimant attended with generalised body aches and pains considered to be fibromyalgia and investigations were ordered. This report says the claimant had mainly pain in both knees, left more than right, numbness in both hands, mainly the left, and aches and pains in both arms and shoulders. Dr Rozario also takes a history that 10 days ago the claimant developed quite significant low back pain without any radicular features (page 75).

• 18 August 2011 – report Dr Rozario says all blood tests were normal, bone scans were done in 2009 and 2010 and these were normal and imaging studies were generally normal. She was of the view the claimant had fibromyalgia syndrome and the claimant was prescribed Endep (antidepressant)[27].

  [27] Pages 368 – 376 of the claimant’s bundle and pages 516 and 517 of the insurer’s bundle.

• 22 October 2011 – report from Dr Abu-Arab psychologist. He noted the claimant’s anxiety and depression stemming from her exposure to traumatic events in the Iraqi war. She was reported to suffer from insomnia, pain in her neck, shoulders, upper and low back, left hip and left leg (page 514).

• 22 October 2011 – attendance on Dr Said for left pleuritic chest pain and pain in the lower back and the neck – ulnar nerve entrapment and fibromyalgia (page 361).

• 17 November 2011 – attendance on Dr Said for back pain, mid thoracic and lower back pain radiating to the things – generalised joints and muscular pain, fibromyalgia, PTSD and Major Depression. Referral by Dr Said to Dr Ibrahim Hanna for dizziness, headaches, tremor and weakness (pages 360 and 805).

• 23 November 2011 – medical certificate signed by Dr Said in support of the claimant’s application for a disability support pension. While page 2 is missing it appears the conditions relevant were psychological and her fibromyalgia. Other conditions of carpal tunnel, back pain, neck and shoulder pain and gastroesophageal reflux were said to be well managed (pages 360 and 506).

• 13 January 2012 – attendance on Dr Said for neck pain with dizziness on moving the head to the left. Pain and swelling in the hands occasional and in the right wrist. Referral by Dr Said to Dr Mark Liew for polymyalgia and poly arthralgia (page 797).

• Undated enhanced primary care program referral for five physiotherapy sessions with Bruno Vidiac (page 794).

• 28 February 2012 – report from Greenfield physiotherapy to Dr Tabaa referring to cervical spine and recommending a course of physiotherapy (page 500).

• 17 March 2012 – referral by Dr Said to Dr A Sanki for follow up and completion of treatment (page 784).

• 4 April 2012 – handwritten note in Dr Sanki’s records “turning her head creates the pain in the neck”. Also, a suggestion of left shoulder to left arm and “unable to get off her bed to walk – numbness legs and lower back and left groin pain (page 1,455)”.

• 13 April 2012 – ultrasound both wrists suggests the presence of carpal tunnel syndrome (page 499).

• 7 May 2012 – handwritten note from Dr Sanki – bilateral carpal tunnel and the rest of the entry is illegible (page 1455)

• 22 May 2012 - referral by Dr Said to Dr G Gumley for bilateral carpal tunnel syndrome (page 782).

• 22 June 2012 – Centrelink certificate completed by Dr Said certifying the claimant is unfit for work or study from 22 June to 22 August 2012 due to depression, anxiety and foot pain (page 781).

• 22 June 2012 – referral from Dr Said to Dr Jay Dave for ‘bunions in both feet’ (page 779).

• 22 June 2012 – imaging of the claimant’s feet showing some minor soft tissue swelling but no body issues (page 496).

• 25 July 2012 – attendance on Dr Said for pain the right ankle, left elbow and lower back (page 352).

• 31 July 2012 - attendance on Dr Said for generalised joints and bone pain (page 351) with referral from Dr Said to Dr Christopher Scott for bilateral carpal tunnel syndrome (page 777) and referral from Dr Said to Dr A Sanki for generalised joint and bone pain (page 775).

• 8 August 2012 – attendance on Dr Said for generalised joints pain (page 350).

• 23 August 2012 entry in Dr Sanki’s records suggests left shoulder, neck pain, carpal tunnel, lower back and painful feet. “Was unable to do the MRI C Spine – too scared – cancelled her appointment with L.D.H because she could not go there” (page 1,456)

• 27 August 2012 – attendance on Dr Said for left shoulder pain and limitation of the right shoulder movements. Although the right is mentioned again the imaging request was for an ultrasound of the left shoulder (page 349).

• 31 August 2012 – bone scan suggests arthritic change in the vertebral column, both AC joints, the glenohumeral joints, both wrists, the left ankle (page 493).

• 31 August 2012 – ultrasound left shoulder suggests supraspinatus tendonitis. The patient may benefit from injection into the subacromial bursa (page 492).

• 3 September 2012 – attendance on Dr Said for review of ultrasound of left shoulder and bone scan – osteoarthritis and left supraspinatus tendinitis (page 348).

• 10 September 2012 – attendance on Dr Sanki for wrists, shoulders, ankle and lumbar spine (page 1456).

• 12 September 2012 – Centrelink certificate completed by Dr Sanki certifying the claimant as unfit for work or study from 1 September to 1 December 2012 due to polyarthritis (wrists, spine, shoulders, left ankle) and left shoulder supraspinatus tendinopathy. The claimant was said to have severe pain, and this was likely to continue and deteriorate within the next two years (page 491).

• 13 September 2012 – medical certificate signed by Dr Said in support of the claimant’s application for a disability support pension. The primary condition was said to be polyarthritis (wrists, spines, shoulders and left ankle) and the second condition depression and PTSD (page 490).

• 17 September 2012 – attendance on Dr Sanki with note “pain ++ getting worse” (page 1,457).

• 23 October 2012 – attendance on Dr Said for occasional loss of power and sensation of the right hand (page 346) and referral from Dr Said to Dr Ibrahim Hanna for dizziness, weakness and occasional loss of power and sensation on the right hand (page 771).

• 27 November 2012 – attendance on Dr Said for lower back pain and limitation of the back movements, fibromyalgia (page 344).

• 10 January 2013 – attendance on Dr Sanki with left hand troubles, back pain, too much headaches (?) and left shoulder (page 1,457).

• 7 February 2013 – attendance on Dr Sanki “unable to sleep last night due to pain left shoulder. Unable to extend left elbow (page 1,457)”.

• 8 March 2013 – attendance on Dr Said with “referral to Dr Sanki requested” due to dizziness (page 341) and referral from Dr Said to Dr Sanki for follow up and completion of her treatment (page 768).

• 20 March 2013 – attendance on Dr Sanki for what appears to be hand and finger issues (page 1,458). Letter of the same date from Dr Sanki to Dr Said suggests a Centrelink certificate was also provided (page 1,463).

• 15 April 2013 – attendance on Dr Said for weakness and twitching of the thumbs in both hands (page 340) and referral to Dr Ibrahim Hanna for “tremor and twitching of the thumbs in both hands with feeling generalised weakness with excessive sweating” (page 763).

• 20 May 2013 – attendance on Dr Sanki for “kyphoscoliosis upper Dorsal Spine for Cervical spine exercises” (page 1,458).

• 3 July 2013 – attendance on Dr Al Suhaily to fill form for public housing due to anxiety and stress (pages 337 and 466).

• 29 July 2013 – attendance on Dr Said for dizziness, neck pain and depression (page 335).

• 1 August 2013 – attendance on Dr Said for neck pain and right wrist (page 335).

• 2 August 2013 – attendance on Dr Said for review of X-ray and X-ray report right elbow which was normal and X-ray cervical spine also normal (page 465).

• 30 September 2013 – Centrelink certificate completed by Dr Said certifying the claimant is unfit to work or study from 30 September to 30 December 2013 due to depression, neck pain (limitation of the neck movements pain to both shoulders) and back pain (limitation of the back movements) (page 759).

• 15 November 2013 – attendance on Dr Said for pain and numbness of the left little and second fingers (page 331) and referral to Dr Paul Teychenne for pain and numbness of both hands more to the left hand (possible ulnar entrapment) “she has pain and numbness of both legs” (page 757).

• 26 November 2013 – attendance on Dr Said for left tennis elbow and prescriptions for Voltaren and Tramal (page 331).

• 23 January 2014 – attendance on Dr Said for pain and tenderness of the left elbow (page 329).

• 3 February 2014 – attendance on Dr Said for review of ultrasound of the left elbow (page 328) and referral to Dr Chandra Dave for ulnar neuritis (page 755).

• 17 February 2014 – attendance on Dr Said for left tennis elbow and depression (page 327). Centrelink certificate completed by Dr Said certifying the claimant was unfit to work or study from 17 February to 17 May 2014 due to exacerbation of left elbow pain and pain in the left forearm and hand as well as depression (page 754).

• 8 March 2014 – attendance on Dr Sanki feeling sleepy and what appears to be thyroid issues (page 1458).

• 10 March 2014 – attendance on Dr Said (page 325) and referral to Dr Ibrahim Hanna for tremor of the hands, weakness and recurrent dizziness (page 752).

• 2 May 2014 – attendance on Dr Said for pain in the right wrist and left elbow, cervical disc disease, polyarthralgia and lumbar disc-disease (page 324). Centrelink certificate completed by Dr Said certifying the claimant was unfit to work or study from 1 May to 1 August 2014 due to depression and polyarthralgia with symptoms of generalised joints pain, shoulders, left elbow, right wrist, back pain (page 751).

• 3 May 2014 – attendance on Dr Said for neck pain (page 323). Medicare enhanced primary care program referral for five sessions of physiotherapy and associated GP management plan documents suggesting the treatment was for lumbar disc lesion and cervical disc lesion required (pages 742-750).

• 16 May 2014 – attendance on Dr Said for cervical bilateral radiculopathy, lumbar disc disease and bronchitis (page 322).

• 4 June 2014 – attendance on Dr Al Suhaily – left shoulder pain for long time today shoulder pain and restrict range of motion. On examination, no abnormality detected. “Since physio last week pain in the left wrist and swollen, left elbow. Long counselling done has pain anywhere I touch on back, left shoulder, costochondral joints ? fibromyalgia” (page 321).

• 12 June 2014 – ultrasound left shoulder reported as normal (page 464).

• 14 December 2014 – attendance on Dr Sanki and prescription for Voltaren Rapid  (an anti-inflammatory) 50 mg prescribed (page 1,448).

• 16 December 2014 – attendance on Dr Said for fall on the outstretched hands and sacral back pain, pain in both wrists. Brufen and Panadeine Forte given (page 317).

• 19 December 2014 – attendance on Dr Said for review of X-rays no abnormality detected (page 317).

• 11 February 2015 – attendance on Dr Said for team care arrangements review (of 3 May 2014 plan) requesting further actions required including physiotherapy sessions for neck pain and back pain (pages 314 and 738).

• 20 April 2015 - Medicare enhanced primary care program referral for five sessions of physiotherapy (page 736).

• 12 May 2015 – attendance on Dr Said for neck pain with limitation of the neck movements (page 312).

• 18 December 2015 – attendance on Dr Said for deformity of both little fingers and dizziness (page 307).

• 10 February 2016 – enhanced primary care program referral for five physiotherapy sessions and associated GP management plan documents suggesting the treatment was for a lumbar disc lesion and cervical disc lesion (pages 723-730). There is a further document dated 10 February 2016 requesting two physiotherapy treatments (page 720).

• 11 February 2016 – attendance on Dr Said for weakness, joints pain, bone pain (page 304).

• 22 February 2016 – attendance on Dr Said for neck pain and limitation of neck movements, pelvic pain and lower abdominal tenderness, referral for X-ray (page 303).

• 8 March 2016 – attendance on Dr Said for pain in the left wrist and pain in the knees - history of “fall over” (page 302).

• 16 March 2016 – attendance on Dr Said for “Back pain limitation of the back movements” and Panadeine Forte was prescribed (page 301).

• 26 May 2016 – attendance on Dr Said for referral to chiropractor (page 299) and enhanced primary care program completed by Dr Said suggesting referral for three chiropractic sessions (page 719).

• 26 May 2016 – attendance on Complete Chiropractic Care[28] and the date of what appears to be a new patient registration form. The major complaints are noted as neck, shoulder, back and lower back with a timeframe of ‘4+ years’. There is also this note “condition is getting worse, everything aggravates it, Panadol osteo, Nurofen plus”. She also ticks the following boxes as an indication of her ailments – headaches, neck pain, upper back pain, mid back pain, lower back pain, shoulder pain, elbow or wrist pain, hip knee or ankle pain. There were three attendances before the enhanced primary care program was rejected.

  [28] The notes from CCC are produced at page 1403 of the insurer’s bundle.

• 29 August 2016 – a letter from Dr Said ‘to whom it may concern’ certifying that Ms Krikoor is one of his patients and that she suffers from the following illnesses (these include degenerative joint disease, back pain, carpal tunnel syndrome (left), bilateral sacro-iliac joint pain, fibromyalgia, cervical and lumbar disc disease) (pages 295 and 715).

21 September 2016 – date of accident

• 23 September 2016 – attendance on Dr Said. Involved in car accident, front seat passenger seat belt was on. Car hit from the back and air bags deployed. Chest wall pain, thoracic back pain, neck pain, pain in the right and left shoulders more to the right. Right wrist pain, lower back pain. No seat belt marks. Painful neck movements, painful shoulder movements, painful limitation of the back movements, right hip pain and right ankle pain (page 293).

• 26 September 2016 – attendance on Dr Said for anxiety. Noted Pain in the left wrist, left hand, left clavicle and right ankle (page 291).

• 5 October 2016 – attendance on Dr Said for weakness, back pain and pain in both knees (page 290).

• 28 October 2016 – attendance on Dr Said for neck pain on right side of neck also back pain, right hip pain and bilateral knee pain (page 289) and referral to Greenfield Physiotherapy for ‘neck pain, back pain and [right] hip, bilateral knee pain’ (page 711).

• 20 January 2017 – attendance on Dr Said for back pain, limitation of back movements, pai in the lumbar sacral and right sacroiliac region, pain radiation to the right foot. Pain even waking the patient at night from sleep (page 284). Referral from Dr Said to Greenfield Physiotherapy for ‘neck pain, back pain and [right] hip, bilateral knee pain’ (page 701).

• 15 February 2017 – attendance on Dr Said for enhanced primary care program and referral for five physiotherapy sessions and associated GP management plan documents suggesting the treatment was for a lumbar disc lesion and cervical disc lesion (pages 284, and 693-700).

• 17 February 2017 – attendance on Dr Said for neck pain with bilateral radiculopathy (page 283).

• 27 March 2017 – attendance on Dr Said for back pain radiating to the right hips (page 281).

• 12 May 2017 – attendance on Dr Said for back pain, neck pain, weakness of the hands and numbness. Claimant was dropping things and had pain radiating to the thighs legs and right ankle (page 278). Referral to Dr Bassel Hassan for “neck pain, weakness of the hands and numbness. She started to drop things of hands”. She has back pain, pain radiating to the thighs and legs and right ankle (page 683).

• 31 May 2017 – attendance on Dr Said and referral to Physio Field for neck pain, hip pain and hips pain as a result of a motor vehicle accident (pages 277 and 681).

• 1 July 2017 – attendance on Dr Said (page 277) and enhanced primary care program referral for five sessions of physiotherapy with team care arrangements review document suggesting treatment is for back pain and neck pain (pages 679-680).

• 3 August 2017 – attendance on Dr Said for pain and numbness of the right thigh, leg and right foot for the last three weeks. Lower back pain, right radiculopathy (page 275).

• 8 August 2017 – attendance on Dr Said for lumbar back pain (page 274) and referral by Dr Said to Dr Renata Bazina for ‘thoracolumbar disease’ and noting ‘she has lumbar disc bulging with Compression of the R nerve root’ (page 676).

• 8 August 2017 – report from Physio Field (Sophia Oh) to Dr Said advising that the claimant attended on that day complaining of “chronic back pain”. A diagnosis of “chronic back pain related to discogenic back problem with tensioned back muscles” was made (page 445).

• 14 August 2017 – attendance Dr Said for back pain and limitation of the back movements (page 273).

• 4 September 2017 – attendance on Dr Said for dizziness and referral to Professor Mark Sheridan for ‘thoracolumbar disease’ and noting ‘she has lumbar disc bulging with compression of the R nerve root’ (pages 271 and 674).

• 25 September 2017 – attendance on Dr Said to review cervical spine and CT scan (page 270).

• 9 November 2017 – attendance on Dr Said for right and left shoulder pain more to the left and lower back pain with right leg pain (page 266). Referral to Dr Bassel Hassan for ‘neck pain, weakness of the hands and numbness. She started to drop things of hands. She has back pain, pain radiating to the thighs and legs and right ankle’ (page 672).

• 22 November 2017 – attendance on Dr Said for review of ultrasound of left shoulder, tendonitis, bursitis, capsulitis (page 265). Referral to Dr Todd Gothelf for left shoulder injury and left elbow pain (page 667).

• 29 November 2017 – attendance on Dr Said for left shoulder pain (page 264).

• 18 December 2017 - MRI cervical and lumbosacral spine following history of neck pain with bilateral hand numbness and lumbar back pain and right lower limb sciatica. In terms of the neck there was no significant disc protrusion however at C3/4 there was ‘bilateral neural exit foraminal narrowing secondary to uncovertebral joint hypertrophy and facet joint encroachment’. In the lumbar spine there was “mild lower lumbar spondylosis with disc desiccation. Contacts of the exiting L5 nerve roots. No definite neural impingement. Facet joint arthrosis throughout”.

• 19 December 2017 - report of Dr Gothelf noting no wasting of the shoulder musculature but decreased active and passive movements. He referred the claimant for an MRI of the left shoulder and undertook a further review. His second report dated 28 February 2018[29] diagnoses a high-grade partial thickness tear of the rotator cuff and he recommended surgery.

  [29] Page 56 of the claimant’s bundle.

• 19 January 2018 – X-ray, ultrasound and arthrogram left shoulder showed ‘severe insertional tendinosis’ with high grade partial thickness tear of the anterior supraspinatus and other findings (page 427).

• 6 and 7 February 2018 – claimant attends Fairfield Hospital for gall bladder removal surgery – history of “hypercholesterolaemia, depression, anxiety and panic attacks DM and GORD”. Listed medications were Inderol, Crestor, Somac, Promensil (page 658).

• 23 February 2018 – attendance on Dr Said for neck injury, back injury, left shoulder injury (page 258). Centrelink certificate signed by Dr Said certifying the claimant was unfit for work or study from 23 February to 23 May 2018 due to – left shoulder injury, neck injury and lower back injury (page 644).

• 15 March 2018 – attendance on Dr Said for left shoulder pain (page 257).

• 17 April 2018 – attendance on Dr Said for lumbar back pain, right shin pain and left shoulder pain with referral to Dr Eric Farmer (page 254).

• 15 June 2018 – attendance on Dr Said for left shoulder pain and limitation of the neck and left shoulder movements (page 250).

• 20 June 2018 – attendance on Dr Said for left shoulder pain and painful left shoulder movements (page 250). Referral from Dr Said to Dr Bassel Hassan because the claimant is ‘suffering from attention block (Periodic) for second’ (page 634). Centrelink certificate completed by Dr Said certifying the claimant was unfit for work or study from 20 June to 20 September 2018 due to the left shoulder injury and symptoms of pain in the left shoulder, painful movements of the left shoulder (page 633).

• 20 September 2018 – attendance on Dr Said (page 248) and referral to Professor Antonio E Fernandes for bilateral carpal tunnel syndrome (page 628).

• 15 October 2018 – referral by Dr Said to Dr Bassel Hassan because the claimant is ‘suffering from attention block (Periodic) for second’ (page 637).

• 31 October 2018 – attendance on Dr Said for amongst other things, left tennis elbow (page 244).

• 5 November 2018 – attendance on Dr Said for carpal tunnel syndrome (page 243).

• 7 November 2018 – attendance on Dr Said (page 243) and Centrelink Carer payment form[30] nominating the claimant as the person to be cared for and another person as the carer. The claimant was certified by Dr Said as being a person with ‘physical, intellectual and psychiatric disabilities including neck radiculopathy, degenerative joint disease, depression, bilateral shoulder injuries and lumbar disc disease’. All of these are said to have begun in 2008 (page 414).

  [30] Page 126 of the claimant’s bundle.

• 17 November 2018 – attendance on Dr Said and enhanced primary care program referral for five sessions of physiotherapy and associated GP management plan documents suggesting the treatment was for a lumbar disc lesion and cervical disc lesion (pages 243 and 609-616).

• 19 November 2018 – attendance on Dr Said for right shoulder pain, losing balance, pain in the right in and right foot (page 242). Referral by to Dr Bassel Hassan because the claimant is “suffering from attention block (periodic) for second and she is nearly losing balance. She claims that she develop visual problems. She has L side headaches” (page 607).

• 10 January 2019 – attendance on Dr Said for back pain and pain in right and left sacro-iliac regions (page 240).

• 4 February 2019 – attendance on Dr Said. Still has pain in the left shoulder – range of movements is mildly improving. Pain in the right shoulder and neck pain (page 238).

• 25 February 2019 – attendance on Dr Said for “Right shoulder pain, she has no private cover for post op physiotherapy”. Referral by Dr Said to Dr Gothelf because the claimant is “still suffering from R shoulder pain. She has no private cover for Post op physiotherapy. I am asking your kindness in referring her to physiotherapy in public hospital” (pages 237 and 605).

• 22 March 2019 - Fairfield physiotherapy department after left arthroscopic repair – slow recovery, struggling.

• 13 May 2019 – attendance on Dr Said with left shoulder pain and restricted left shoulder movement, referral to Dr Gothelf given for ‘pain and unable to move her L shoulder’ (pages 82 and 189).

• 23 May 2019 – still has pain and severe imitation of the left shoulder movements (page 83).

• 18 June 2019 - attendance on Dr Said will left shoulder pain and limitation of left shoulder movements post-surgery, Centrelink medical certificate given (page 89).

• 9 July 2019 – referral by Dr Said to physiotherapist for weakness of the left biceps (page 183).

• 2 September 2019 – still has pain left shoulder (page 95).

• 16 September 2019 – attendance on Dr Said for back pain exacerbation with right radiculopathy, Centrelink medical certificate given (pages 97 and 181).

• 18 September 2019 – attendance on Dr Said with referral to Dr Gothelf given (page 99).

• 23 September 2019 – attendance on Dr Said for painful movements of the left shoulder (page 101).

• 28 October 2019 – attendance on Dr Said for neck pain and left shoulder pain (page 105).

• 15 November 2019 – attendance on Dr Said for cervical pain with bilateral radiculopathy (page 109).

• 18 November 2019 – CT cervical spine – loss of cervical lordosis (muscle spasm) with moderate facet joint arthropathy on the right at C2/3 and C3/4 and foraminal stenosis at C3/4 level caused by an osteophyte causing compression to the right C4 nerve root (page 201).

• 22 November 2019 – attendance on Dr Said and review of ultrasound of thyroid and CT scan of neck. Referral to Dr James Van Gelder for “cervical disc disease R Foraminal Stenosis” (pages 111 and 169).

• 22 November 2019 – CT Lumbar spine without contrast says “minor lower lumbar spondylosis” (page 199).

• 2 December 2019 – attendance on Dr Said for review of the CT of the claimant’s lumbar spine and further referral to Dr Van Gelder (pages 113 and 161).

• 16 December 2019 – date of report from Orthopaedics outpatient clinic to Dr Said noting the operation was nine months ago and that she has improved her range of motion but has some restrictions due to pain. The claimant had been participating in physiotherapy. She was referred for an MRI and was to return for review in three months (page 127). 

• 16 December 2019 – attendance on Dr Said for neck pain with radiculopathy and referral to Fairfield Hospital physiotherapy department was written (pages 117 and 155).