Kwarteng v Insurance Australia Limited t/as NRMA Insurance

[2025] NSWPICMP 404

DETERMINATION OF REVIEW PANEL

CITATION:

Kwarteng v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 404

CLAIMANT:

Naomi Brayie Kwarteng

INSURER:

Insurance Australia Limited t/as NRMA Insurance

REVIEW PANEL

MEMBER:

Gary Victor Patterson

MEDICAL ASSESSOR:

Christopher Oates

MEDICAL ASSESSOR:

Michael Couch

DATE OF DECISION:

6 June 2025

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); degree of permanent impairment dispute; claimant’s IME found 21% whole person impairment (WPI) (although not stabilised); insurer’s IME found that the claimant’s minor injuries were transient, there was no assessable impairment, and that the claimant was motivated by financial gain; Medical Assessor (MA) found 5% WPI for the right shoulder assessed by analogy due to inconsistencies; the Review Panel thought it appropriate to assess by range of motion method as satisfied that claimant was making her best efforts; Held – Review Panel found 12% WPI for right upper extremity; no assessable impairment found in uninjured left shoulder; MAC revoked.

DETERMINATIONS MADE:  

CERTIFICATE

REVIEW PANEL ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENT

Certificate issued under s 7.26(7) of the Motor Accident Injuries Act2017 (the Act)

1.     The Review Panel revokes the certificate of Medical Assessor Alexander Woo dated 31 July 2024 and issues a new certificate determining that:

(a)    the following injuries caused by the motor accident give rise to a permanent impairment of 12% and is greater than 10%:

·         cervical spine – soft tissue injury;

·         thoracic spine – soft tissue injury;

·         lumbar spine – soft tissue injury with ongoing symptoms referred from the thoracic spine, and

·         right shoulder – soft tissue injury with rotator cuff tendinopathy.

STATEMENT OF REASONS

INTRODUCTION

1. On 24 April 2021, Naomi Brayie Kwarteng (the claimant) was the seat-belted driver of her Mazda CX9 travelling in a southerly direction along the Hume Highway at Hoxton Park. Her twin infant boys were properly restrained in rear seat capsules. As the claimant was turning left onto Hoxton Park Road, with a green light, her vehicle was struck on the driver’s side door by the insured vehicle, which failed to stop at the red light. The claimant’s airbags did not deploy. The claimant was unable to open her door which had become locked. A bystander assisted her to exit the vehicle. Police officers and ambulance attended. The claimant was assessed by paramedics.

2. The claimant reported a jarring injury to her body and a direct impact of her right shoulder against the car door. The claimant was in shock, trembling and complained of pain in her back, right knee and right scapula. The claimant declined to go to hospital. Her husband came and took her and their children home. Her car was towed away and later written off for insurance purposes.

3. NRMA (insurer) indemnifies the owner and/or the driver of the at-fault vehicle for liability to pay to the claimant any damages and/or statutory benefits under the Motor Accident Injuries Act2017 (the Act). The insurer wholly admitted liability for the claim for statutory benefits beyond 26 weeks and common law damages. The insurer was unable to determine whether the claimant’s whole person impairment is more than the 10% threshold.

ASSESSMENT UNDER REVIEW

1. As there is a dispute between the parties about the degree of permanent impairment under Schedule 2, cl 2(a) of the Act, the claimant was referred to Medical Assessor Woo for assessment. Medical Assessor Woo certified on 31 July 2024 as follows:

The following injuries caused by the motor accident give rise to a permanent impairment of 5% and IS NOT GREATER THAN 10%:

·     cervical spine – soft tissue injury

·     thoracic spine – soft tissue injury

·     lumbar spine – soft tissue injury

·     right shoulder – rotator cuff tear

Medical Assessor Woo found 5% whole person impairment for the right shoulder. He made no adjustment for pre-existing/subsequent impairment, apportionment or treatment effects.

THE REVIEW

1. The claimant sought a review of Medical Assessor Woo’s certificate on the grounds that the medical assessment is incorrect, within the meaning of s 7.26 of the Act, in a number of material respects. It was submitted that the claimant had been denied procedural fairness in that Medical Assessor Woo allegedly failed to put various perceived inconsistencies to the claimant for her explanation or response.

2. The claimant’s application for review was opposed by the insurer. It was submitted that none of the errors asserted by the claimant are borne out on a proper reading of Medical Assessor Woo’s assessment and that, in any event, the alleged errors are not material. Instead, it was submitted by the insurer, the claimant seeks to challenge Medical Assessor Woo’s medical conclusion as opposed to addressing an error on the face of the record.

3. President’s delegate Stephanie Wigan issued a Determination of an Application for Review of a Medical Assessment on 8 October 2024 which stated the satisfaction of the President’s delegate that there is reasonable cause to suspect that Medical Assessor Woo’s assessment was incorrect in a material respect. The basis of that decision was cl 6.41 of the Motor Accident Guidelines which provides:

   “Where there are inconsistencies between the Medical Assessors’ clinical findings and information obtained through medical records and/or observations of non-clinical activities, the inconsistencies must be brought to the injured person’s attention…… the injured person must have an opportunity to confirm the history and/or respond to the inconsistent observations to ensure accuracy and procedural fairness.”

   All of the injuries referred to Medical Assessor Woo are to be reassessed by the Review Panel (Panel).

Bundles of documents

1. The parties have presented their respective bundles of documents upon which they rely. The Panel has read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel, or a Panel Member, has not read it, nor taken it into consideration. The same principle applies to parties not referring to, nor specifically relying upon, a document in their own bundle and submissions.

2. The fact that evidence is not referred to in these reasons does not mean it has been overlooked. It is not required that each piece of evidence be mentioned.[1] The Panel is not required to “analyse every piece of information from every opinion contained in a document with which it was provided”.[2] The Panel has come to its own conclusions and has taken its own history.

   [1] WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] 75 ALR 630 at [46].

   [2] Farr v Insurance Australia Limited t/as NRMA Insurance Limited [2014] NSWSC 1435 at [46].

OTHER ASSESSMENTS

1. Medical Assessor Mohammed Assem certified on 20 February 2023 as follows:

“The following injury caused by the motor accident:

·     cervical spine – soft tissue injury

·     thoracic spine – soft tissue injury

is a MINOR INJURY for the purposes of the Act.”

“The following injury caused by the motor accident:

·     right shoulder – intrasubstance tear of supraspinatus tendon

is not a MINOR INJURY for the purposes of the Act.”

STATUTORY PROVISIONS

1. A medical assessment matter is determined in accordance with s 63 of the Act. The matter is determined at first instance by a Medical Assessor pursuant to and, on review, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).

2. Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission, including proceedings before a Panel, reviewing a decision of a Medical Assessor.[3]

   [3] Section 41(2) of the PIC Act.

3. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written Application.[4]

   [4] Rule 128 of the PIC Rules.

4. The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[5]

   [5] Section 7.26(6) of the Act.

5. All members of the Panel had no previous involvement with the claimant or with this matter.

MATERIAL BEFORE THE REVIEW PANEL

1. The claimant relied upon the following material which the Panel has considered:

No.	Document description	Date	Page No.
Applicant’s Review Submissions	28/08/2024	3

See previously.

Decision of President’s delegate	8/10/2024	6
Claimant’s submissions made to Assessor Woo	4/09/2023	9

1. The claimant refers to a report by Dr Yuk Kai Lee, orthopaedic surgeon, who assessed the claimant as having 21% whole person impairment (WPI). Dr Lee assessed 5% WPI for the cervicothoracic spine. Five percent WPI for the lumbosacral spine and 13% WPI for the right upper extremity. (See later.)

sealed certificate of Medical Assessor Woo	31/0/2024	p 15
A2	Application for Personal Injury Benefits	07/06/2021	p 33
A3	revised liability notice for benefits after 26 weeks	28/02/2023	p 39
A4	Application for Damages under Common Law	20/03/2023	p 42
A5	Notice accepting liability for Claim for Damages	13/06/2023	p 45
A6	ambulance report	24/04/2021	47
A7	police report	11/06/2021	p 48
A8	report by Dr Yuk Kai Lee, orthopaedic surgeon, to the claimant’s lawyers	10/03/2023	p 53.

1. Dr Lee described the history of injury, current complaints, occupational and personal history, past medical history and activities of daily living. He describes his physical examination of the claimant and tabulates her shoulder movements through all six planes. Right shoulder movement was restricted in comparison to the left. Dr Lee did not view any X-ray films but read the reports. Dr Lee says that the claimant suffered rotator cuff injury to the right shoulder, neck injury, possibly traumatic thoracic outlet syndrome and back injury with possible intravertebral disc injury. He says there will be permanent disabilities for which the main cause was the accident. He did not think that her injuries had then stabilised. Dr Lee then expressed opinions as to the claimant’s work capacity which are not relevant for the Panel’s consideration.

2. In a separate assessment of the same date, Dr Lee opined that the claimant had 21% WPI (as previously summarised), notwithstanding that he did not think that her condition had stabilised.

A9 medical report of Dr Zelko Oreb, general practitioner 27/07/2022 p 63

1. Dr Oreb describes the circumstances of the accident and says that the claimant was seen by another general practitioner (GP) for her initial treatment. He notes there is no past history of any musculo skeletal problems. He describes the findings upon examination on 17 May 2021 and the findings of MRI Investigations of the cervical and thoracic spine. He describes conservative treatment and makes a diagnosis of post-traumatic mechanical derangement of the cervical spine, thoracolumbar spine and right shoulder with possible rotator cuff tear.

A10 certificate of Medical Assessor Mohammed Assem 20/02/2023 p 65

See previously.

A11 MRI report of cervicothoracic spine described by Dr Tomokazu Nishiguchi 01/09/2021 p 73

1. In relation to the cervical spine, Dr Nishiguchi concluded as follows:

   “No acute vertebral fracture or subluxation. Left facet arthropathy is present at C2/C3 and C3/C4. Left C3 nerve root impingement is suspected and clinical correlation is recommended.”

2. In relation to thoracic spine, Dr Nishiguchi concluded as follows:

   “Alignment is preserved. No acute vertebral fracture. The vertebral disc spaces and signal are maintained. No significant disc bulging or facet arthropathy. Imaged spinal cord appears normal. Mild costovertebral arthropathy is present at T5 and T6.”

   Conclusion:

   No vertebral or spinal cord pathology is identified. No spondylosis.

A12 MRI scan of right shoulder reported by Dr Ankur Srivastava, musculoskeletal radiologist, to Dr Oreb 03.02.2023 75

ROTATOR CUFF AND MUSCLES

Subscapularis tendon is unremarkable. Moderate supraspinatus tendinosis with low grade intrasubstance tears in the mid to posterior tendon. Mild to moderate supraspinatus tendinosis with low grate intrasubstance tears in the tendon. Moderate-sized sentinel cyst in the supraspinatus myotendinous junction measuring 5 x 19mm. Teres’ minor tendon is intact. No full-thickness rotator cuff rapture. No intramuscular oedema of fatty arthropathy of the rotator cuff muscles.

GROSSLY UNREMARKABLE

LABRUM AND CAPSULE:

No gross labral tear. No para labral cyst noted.

GLENOHUMERAL JOINT:

No gross chondral loss. No sub chondral cystic change or oedema. No fracture. There is no joint effusion.

CORACOACROMIAL ARCH:

Mild lateral down sloping of the acromion with undersurface sclerosis and spurring. Subacromial/subdeltoid bursa is thickened with synovial thickening. Mild to moderate AC joint OA.

OTHER:

Spinoglenold notch and quadrilateral spacer within normal limits.

COMMENT:

Suboptimal study due to extensive motion artefact. Moderate supraspinatus and mild to moderate infraspinatus tendinosis with low grade intrasubstances delaminating tears in the mid to posterior supraspinatus and anterosuperior infraspinatus tendons. Mild subacromial/subdeltoid bursitis.

A13	Clinical notes of Dr Oreb	Various	77
A14	Allied Health Recovery request of physiotherapist	08.10.2021	85
A15	Certificates of Capacity	Various	90
A16	Letter from claimant’s solicitors serving Dr Lee’s report and requesting concession on NEL threshold	28.03.2023	111
A17	Letter from insurer regarding inability to determine WPI as more than 10%	23.06.2023	112

1. The insurer relied upon the following material which the Panel has considered.

No.	document description	Date	Page No.
R1	insurer’s review reply submissions	16/09/2024	1

See previously.

R2 insurer’s reply submissions (WPI dispute) 25/09/2023 4

·        The insurer relies upon the report of Dr Stephen Rimmer, orthopaedic surgeon, dated 23 June 2023 and submits the alleged injuries do not exceed the s 4.11 threshold.

·        The insurer submitted there are no pre-accident records available to ascertain the extent or existence of any pre-existing condition. The insurer refers to the Commission’s certificate of Medical Assessor Assem who referred to global weakness and some non-organic findings. The insurer says that similar comments were made by Dr Rimmer who noted there were gross inconsistencies in his examination and that the claimant demonstrated abnormal illness behaviour.

·        The insurer submitted that movement of the uninjured left shoulder joint should be the baseline when assessing loss of motion at the injured right shoulder joint. The insurer tabulates substantial inconsistencies in the recordings of motion of both shoulders by Dr Lee, Dr Rimmer and Medical Assessor Assem. The insurer says that Medical Assessor Assem assessed severe restrictions of the motion at the left shoulder.

·        The insurer questioned the aetiology of an intrasubstance tear of the supraspinatus tendon which was not discovered until almost two years post-accident, which has not been explained, in the insurer’s submission.

·        In relation to the cervicothoracic spine, the insurer notes that the claimant did not complain of pain or symptoms at the neck or upper back, at the time of the accident. Nor did the claimant mention an injury to the thoracic spine/upper back in her claim form. The insurer says that the evidence indicates the claimant’s injury to the cervical and thoracic spines are soft tissue in nature and would have since resolved.

·        In relation to the lumbar spine, the insurer notes the differences in presentation to, and findings by, Dr Lee, Dr Rimmer and Medical Assessor Assem, who recorded no reported lumbar spine symptoms. The insurer said that, if the Medical Assessor finds restricted lumbar spine movement on assessment, the inconsistencies should be brought to the claimant’s attention, as required by clauses 6.40 and 6.42 of the Guidelines.

R3 report of Dr Stephen Rimmer, orthopaedic surgeon, to the insurer’s lawyers 23/06/2023 p 8

Under the heading Diagnosis and Prognosis, Dr Rimmer says as follows:

“Abnormal illness behaviour for the purpose of personal financial gain i.e. there were gross inconsistencies in history and examination today.”

Dr Rimmer did not believe that the claimant has any present day injury or physical disability as at the date of his assessment. He rates her prognosis as excellent from a physical perspective. He does not believe the claimant has any genuine physical impairment for assessment under American Medical Association (AMA 4) and the Guidelines.

R4 Commission’s certificate of Medical Assessor Mohammed Assem 20/02/2023 p 16

See previously.

R5 clinical notes of Dr Oreb As at 5/07/2023 p 24

EXAMINATION REPORT

1. The report of Medical Assessor Christopher Oates and Medical Assessor Michael Couch is as follows:

   “Naomie Bryie Kwarteng Examination Report

   Date of Accident: 24/4/2021

   REASONS

   Details of who attended the Assessment

   Ms Kwarteng attended for Medical Panel re-examination with Medical Assessor Couch and Medical Assessor Oates at the PIC Medical Suites as arranged on 2/4/2025.

   Her husband attended and was admitted to the examination room as a silent observer.

   A freelance interpreter in Tui, the language of Ghana, was present for the duration of the assessment. A female chaperone was present during the physical examination.

   HISTORY

   Pre-accident medical history and relevant personal details

   Ms Kwarteng was born in Ghana and came to Australia in 2014. Her husband had arrived first and then she and her son emigrated.

   In Ghana she worked in a corner store. She subsequently had twins, a boy and a girl, by Caesarean section in 2019. They are now aged five.

   When she came to Australia she worked in a factory doing picking and packing for 1-2 years and stopped work in 2016. She has not done any further work since then.

   She has not had any previous relevant injuries and her general health has been good. She was not on any regular medications.

   The Caesarean section for the twins, which followed a miscarriage, was her only surgery.

   History of the motor accident

   Ms Kwarteng confirmed on 24/4/2021 she was the driver of a Mazda CX9 sedan with her then 18-month-old twins in child seats in the back. She was wearing a seatbelt and was driving slowly as she made a left-hand turn at an intersection on a green light, when a BMW sedan in one of the two lanes coming from the right failed to stop at a red light at speed and collided into the driver’s side of her vehicle. The airbags did not deploy.

   She was holding the steering wheel doing the turn at the time of impact, so both hands were jerked by the impact, but she doesn’t recall any impact to any other part of her body. The doors locked automatically after the impact and a bystander broke the window glass of the driver’s window to release the locked doors so she and the children could exit the car.

   She doesn’t recall any pain at first, she just felt shocked. She called her husband, who was coming back from church, and he took her and the children home after she had been assessed by the paramedics at the scene, where she recalls complaining of neck and right shoulder pain and was given Panadol. The police also attended. She was not taken to hospital. Her car was towed and later written off.

   History of symptoms and treatment following the motor accident

   The next day her husband took her to Pitt Street Medical Centre at Merrylands where she saw Dr Anand. She recalls having severe right shoulder pain and neck and upper back pain. She was sent for imaging.

   At the second visit, the imaging was reviewed and she was given a prescription for meloxicam and Panadeine Forte.

   A friend of the family then recommended she see Dr Oreb, GP, Newtown whom she saw on 17/5/2021. She recalls having right shoulder and neck and upper back pain when she saw this doctor. She had an MRI scan of cervical and thoracic spine, and later, a scan of the right shoulder.

   The Assessors questioned her about low back pain (because lumbar spine injury was a referred injury) at the time of Dr Oreb’s visit and she said that her thoracic pain referred down to the lower back.

   She continued with medications and was sent for physiotherapy with treatment to the right shoulder, neck and thoracic spine, which she estimates she attended 10 times. The physiotherapist attended her at her home and gave her exercises, but she found that use of Therabands increased the right shoulder pain.

   She was not sent to a specialist.

   Details of any relevant injuries or conditions sustained since the motor accident

   She stated to have had no subsequent injury or relevant condition develop.

   Current symptoms

   The worst pain is the right shoulder and she indicates the acromioclavicular joint area and also rotator cuff. She cannot lift her right arm but can lift her left arm freely. She can’t drive because of right shoulder pain.

   As well as the shoulder joint pain, she has right trapezial pain and upper back pain which she says radiates to the right side of the lower back.

   There was no imaging performed for the lumbar spine.

   The right shoulder pain radiates towards the extensor aspect of the forearm but not into the hand, although she feels numbness intermittently in all five fingers of the right hand when the right arm pain is more severe, and then the right arm goes dead and is heavy to lift.

   She has to sleep on her left side because if she rolls onto her right shoulder, the pain wakes her up at night. She can’t do up her bra. She can shower with her left hand but her husband helps her with dressing.

   She lives in an apartment with her husband and three children. Her husband, who works full-time as a truck driver, and their eldest son aged 22, who is an apprentice plumber, do the housework. There is no yard work to do. She can’t do any of the housework but she walks for general exercise and goes to church on Sunday, but avoids social or community activity otherwise because of pain.

   Current and proposed treatment

   She takes meloxicam and Panadeine Forte.

   CLINICAL EXAMINATION

   General presentation

   A female chaperone was present for the physical examination.

   Ms Kwarteng said she is naturally left-handed but was made to write with her right hand at school. She was of solid build with height 154cm and weight 89kg.

   She walked without a limp. She sat comfortably whilst relating the history and transferred without visible discomfort out of a chair and on and off the couch.

   Cervical spine (cervicothoracic)

   There was tenderness over the right lower paracervical area and adjacent right upper trapezius with slight tension but no guarding. There was some drooping of the right shoulder contour noted. There was no wasting.

   Flexion and extension were full range. Rotation to the left was two-thirds and to the right one-half, but on repeated testing was two-thirds of normal range bilaterally. Lateral flexion was one-half normal range bilaterally. There was no dysmetria.

   There were no non-verifiable radicular complaints because the Medical Assessors considered the radiating pain symptoms and paraesthesia affecting all five digits of the right hand did not reflect a specific spinal nerve root distribution.

   The upper extremity reflexes were symmetrical. Power on the left side was strong and on the right was moderately strong but showed evidence of co-contraction, indicating sub-maximal effort was applied.

   Sensation was said to be reduced on the right side of the face and down the right side of the body in the upper extremity, affecting the upper arm and forearm in a global non-dermatomal distribution.

   Upper arm girth; right 40cm, left 41cm at 10cm above the elbow.

   Forearm girth; right 30cm, left 32cm at 5cm below the elbow reflecting left hand dominance.

   Thoracic spine (thoracolumbar)

   There was tenderness mainly in the mid to lower thoracic spine centrally. Sensation was intact.

   Thoracic rotation was two-thirds of normal range bilaterally. There was no guarding.

   Lumbar spine (lumbosacral)

   There was tenderness in the mid to lower lumbar spine centrally and to the right side. There was no guarding demonstratable whilst walking slowly. She was able to walk on tip toes and heels without difficulty.

   Flexion was one-half normal range bilaterally and extension was one-half of normal range. Lateral flexion was two-thirds of normal range bilaterally.

   She could squat 50%.

   Sitting straight leg raising was 90° bilaterally with negative slump test. Supine straight leg raising was 60° bilaterally with complaint of right foot pain on right straight leg raising. This represents a negative nerve stretch test bilaterally. There was also complaint of pins and needles in the right foot at the end of right supine straight leg raising.

   Reflexes were symmetrical. Power was normal in the lower limbs. Sensation was intact in the left lower limb and globally decreased in a non-dermatomal distribution in the right lower limb.

   Thigh girth; right 53cm, left 52.5cm at 10cm above the superior patellar pole.

   Calf girth; right 37cm, left 36.5cm at the point of maximal circumference.

   There was no lumbar radiculopathy. There was no dysmetria and no non-verifiable radicular complaints.

   Upper extremity

   Active range of movement was measured with a goniometer. The Medical Assessors carefully explained to the claimant the importance of demonstrating her best efforts at active range of movement so that an accurate assessment of permanent impairment, if present, could be made.

   The Medical Assessors decided that the range of movement demonstrated at the right shoulder was reflective of her genuine effort.

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	80° With complaint of shoulder pain	180°
Extension	20°	40°
Abduction	70°	180°
Adduction	0°	40°
Internal rotation	30°	80°
External rotation	60°	90°

There was tenderness over the right rotator cuff and AC joint. The range of motion internal rotation of the left arm was to the bra strap line posteriorly and to the upper buttock on the right side posteriorly.

Consistency of presentation

Although she did have some difficulties recalling points of history, her husband was able to assist from time to time at the invitation of the Medical Assessors.

No abnormal illness behaviour or exaggeration of her clinical presentation was noted by the Medical Assessors. There was no inconsistency observed.

IMAGING

No imaging was brought to this assessment, however from the file:

MRI cervicothoracic spine – Left facet arthropathy at C2/3 and C3/4 with suspicion of left C3 nerve root impingement. Thoracic spine: No pathology.

MRI right shoulder dated 3/2/2023 – Extensive motion artefact. Moderate supraspinatus and mild to moderate infraspinatus tendinosis with low-grade intrasubstance delaminating tears in the mid to posterior supraspinatus and anterosuperior infraspinatus tendons. Mild subacromial/ subdeltoid bursitis.

DISCUSSION

Diagnosis, causation and reasons

The diagnosis is soft tissue injury to cervical spine, thoracic spine and right shoulder with rotator cuff tendinopathy, with referred symptoms to the lumbar spine from the cervicothoracic soft tissue injury.

These injuries are related to the accident, as they are mentioned on the Application for Personal Injury Benefits form dated 7/6/2021, in the initial Medical Certificate dated 17/5/2021, and in the GP record of the same date. Thus, early documented medical evidence is available.

PERMANENT IMPAIRMENT

Cervical spine

There was no dysmetria, no guarding, and no non-verifiable radicular complaints. There were not sufficient criteria to make a diagnosis of cervical radiculopathy. The radiating symptoms to the right upper extremity did not follow a spinal nerve root distribution.

The cervical spine is assessed as DRE Cervicothoracic Category I giving 0% whole person impairment.

Thoracic spine

There was no dysmetria, no guarding, no non-verifiable radicular complaints and no radiculopathy.

Symptoms are present.

This is a differentiator for DRE Thoracolumbar Category I giving 0% whole person impairment.

Lumbar spine

With respect to the lumbar spine, the clinical findings of no dysmetria, no non-verifiable radicular complaints and no guarding, as well as no radiculopathy but ongoing symptoms referred from the thoracic spine, place her in DRE Lumbosacral Category I giving 0% whole person impairment.

Right shoulder

There was no assessable impairment from the uninjured asymptomatic left side.

On the injured right side – flexion 80° gives 7% upper extremity impairment, extension 20° gives 2%, abduction 70° gives 5%, adduction 0° gives 2%, internal rotation 30° gives 4%.

Adding these gives 20% upper extremity impairment which converts to 12% whole person impairment.

There is no indication for making a deduction for a pre-existing or subsequent symptomatic impairment.

The combined whole person impairment is 12% by 0% by 0% by 0% which equals 12%.

References: AMA4, Chapter 3, Tables 72, 73 and 74, pages 110 and 111; Table 3, page 30; Figures 38, 41, 44, pages 43 – 45.”

FINDINGS

1. The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[6] The Panel adopts the findings and reasons of the Medical Assessors.

   [6] Section 7.26(6) of the Act

2. The Panel is not required to choose between competing medical opinions and is required to form its own opinion.[7]

   [7] Allianz Australia Group Limited v Keen [2021] NSWCA 287 and Insurance Australia Group Limited v Marsh [2021] NSWCA 31

3. The medical assessment of permanent impairment is made at the time of the examination. In that respect, the previous assessments are outdated, and do not reflect the current symptomatology, as found by the Medical Assessors, upon examination.

4. The findings of the Medical Assessors are similar to those of Dr Lee in relation to the right upper extremity. The Panel notes that Medical Assessor Woo assessed impairment in the right shoulder by analogy. The Medical Assessors used the range of motion method as they were satisfied that the claimant was making her best efforts.

5. The Panel is surprised by the trenchant comments made by Dr Rimmer and wonders whether cross-cultural factors may have caused some misunderstandings. The Panel notes that the interpreter assisting Dr Rimmer was male. There is no indication, in Dr Rimmer’s report, that either a female chaperone, or the claimant’s husband, were present during the examination and interview.

CONCLUSION

1. For the above reasons, the Panel concludes the certificate issued by Medical Assessor Woo on 31 July 2024 should be revoked. The new certificate appears at the beginning of these reasons.