Lacmanovic v Allianz Australia Insurance Limited

[2024] NSWPICMP 578

DETERMINATION OF REVIEW PANEL

CITATION:

Lacmanovic v Allianz Australia Insurance Limited [2024] NSWPICMP 578

CLAIMANT:

Milena Lacmanovic

INSURER:

Allianz Australia Insurance Limited

REVIEW PANEL

MEMBER:

Anthony Scarcella

MEDICAL ASSESSOR:

Clive Kenna

MEDICAL ASSESSOR:

Sophia Lahz

DATE OF DECISION:

19 August 2024

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; Medical Assessor (MA) determined claimant’s whole person impairment (WPI) was 4%; review sought by claimant; consideration and application of clauses 6.5 to 6.7 of the Motor Accident Guidelines (the Guidelines) in respect of causation, clauses 6.19 to 6.22 of the Guidelines in respect of permanent impairment; Held – the claimant sustained soft tissue injuries and some degree of initial aggravations of underlying pre-existing degenerative changes in her cervical spine, lumbar spine and bilateral shoulders caused by the motor accident that give rise to a WPI of 2%; Medical Assessment Certificate revoked.

DETERMINATIONS MADE:  

CERTIFICATE OF DETERMINATION

Issued under s 7.23(1) of the Motor Accident Injuries Act 2017

The Review Panel:

1.     Revokes the certificate issued by Medical Assessor Sally Preston dated 20 December 2023.

2.     Certifies that the claimant sustained soft tissue injuries and some degree of initial aggravations of underlying pre-existing degenerative changes in her cervical spine, lumbar spine and bilateral shoulders caused by the motor accident on 30 November 2021 that give rise to a whole person impairment that is not greater than 10%, that is, 2%.

STATEMENT OF REASONS

BACKGROUND

1. The claimant, Ms Milena Lacmanovic, is a 57-year-old woman who was involved in a motor accident on 30 November 2021 whilst the driver of a motor vehicle that was rear-ended by another motor vehicle (the motor accident).

2. On 24 January 2022, Ms Lacmanovic made an application for personal injury benefits. The relevant compulsory third party insurer is Allianz Australia Insurance Limited (the insurer). Ms Lacmanovic claimed that she suffered injuries to her neck, upper back, lower back, both shoulders and that she also suffered from insomnia, anxiety and depression as a result of the motor accident.

3. Ms Lacmanovic’s claim is governed by the provisions of the Motor Accident Injuries Act2017 (MAI Act). This legislation provides a scheme for the compulsory third party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.

4. A medical dispute about the degree of Ms Lacmanovic’s whole person impairment (WPI) in respect of her physical injuries has arisen in connection with her claim. This constitutes a medical assessment matter under Schedule 2, cl 2(a) of the MAI Act.

5. A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor: s 7.20 of the MAI Act.

6. The medical dispute was referred to the Personal Injury Commission (Commission) and the Commission assigned it to Medical Assessor Sally Preston for assessment.

7. On 20 December 2023, Medical Assessor Preston determined that Ms Lacmanovic suffered an aggravation of underlying acromioclavicular joint degenerative change in the bilateral shoulders; left subacromial bursitis and minor rotator cuff pathology in the left shoulder; an aggravation of underlying degenerative change in the lumbar spine; and an aggravation of underlying degenerative change in the cervical spine, all caused by the motor accident. Medical Assessor Preston assessed Ms Lacmanovic as having a WPI not greater than 10%, that is, 4%.

REVIEW PROCEDURE

1. Ms Lacmanovic sought a review of the Medical Assessment in accordance with s 7.26 of the MAI Act (the Review).

2. On 9 April 2024, the President’s delegate determined that there was reasonable cause to suspect that the Medical Assessment was incorrect in a material respect and referred the matter to a Review Panel (the Panel).

3. Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision-maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.

4. The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission: s 7.26(5A) of the MAI Act. Accordingly, the President’s delegate has convened this Panel to conduct the review of the Medical Assessment.

5. Part 5 of 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: s 41(2) of the PIC Act.

6. The Review of the Medical Assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect. The Review is by way of a new assessment of all matters with which the medical assessment is concerned: s 7.26(6) of the MAI Act. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the motor accident, without those matters having to be the subject of assessment.

7. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application: Rule 128 of the PIC Rules.

8. On 11 April 2024, the Panel directed the parties to lodge with the Commission an indexed and paginated final bundle of documents on which they relied in the Review.

9. On 27 May 2024, the Panel informed the parties that it considered a re-examination of Ms Lacmanovic was required. Arrangements were made for Ms Lacmanovic to be

   
   

   re-examined by Medical Assessor Clive Kenna on 19 June 2024 on behalf of the Panel. Ms Lacmanovic was directed to take to the re-examination appointment all relevant imaging studies.

LEGISLATIVE FRAMEWORK

General provisions

1. Section 1.4 of the MAI Act defines ‘injury’ to mean a personal or bodily injury and includes a pre-natal injury; a psychological or psychiatric injury; and damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses.

2. Sections 5D (duty of care – general principles) and 5E (onus of proof) of the Civil Liability Act 2002 (the CLA) apply to the MAI Act: s 3B(2) of the CLA.

3. Ms Lacmanovic’s claim and entitlements to compensation are governed by the provisions of the MAI Act. An injured person can make a claim for both economic losses and non-economic loss damages.

4. However, s 4.11 of the MAI Act provides that no damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.

Permanent impairment assessment

1. Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines version 9.2 effective from 10 November 2023 (the Guidelines).

2. The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment Fourth Edition (AMA 4 Guides). The Guidelines are definitive in respect of the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed: cl 6.2 of the Guidelines.

3. Permanent impairment is assessed in accordance with Chapter 6 of the Guidelines.

4. Causation of injury is addressed in cls 6.5, 6.6 and 6.7 of the Guidelines.

5. Clause 6.6 of the Guidelines notes:

   “6.6   Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:

   ‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:

   1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.

   2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'

   This, therefore, involves a medical decision and a non-medical informed judgement.”

1. Clause 6.7 of the Guidelines states:

   “There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”

2. Pre-existing impairment is addressed in cls 6.31, 6.32 and 6.33 of the Guidelines.

3. 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: cl 6.31 of the Guidelines.

4. Clause 6.32 of the Guidelines states:

   “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 AMA 4 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.' Refer to clause 6.218 for the approach to a pre-existing psychiatric impairment.”

5. Pre-existing impairments should not be assessed if they are unrelated or not relevant to the impairment arising from the motor accident: cl 6.33 of the Guidelines.

6. Subsequent injury is addressed in cl 6.34 of the Guidelines which states:

   “The evaluation of permanent impairment may be complicated by the presence of an impairment in the same region that has occurred subsequent to the relevant motor accident. If there is objective evidence of a subsequent and unrelated injury or condition resulting in permanent impairment in the same region, its value should be calculated. The permanent impairment resulting from the relevant motor accident must be calculated. If there is no objective evidence of a subsequent impairment, its possible presence should be ignored.”

7. Clause 6.19 of the Guidelines states:

   “Before an evaluation of permanent impairment is undertaken, it must be shown that the impairment has been present for a period of time, and is static, well stabilised and unlikely to change substantially regardless of treatment. The AMA 4 Guides (page 315) state that permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment. A permanent impairment is considered to be unlikely to change substantially (i.e. by more than 3% whole person impairment (WPI) in the next year with or without medical treatment). If an impairment is not permanent, it is inappropriate to characterise it as such and evaluate it according to these Guidelines.”

8. The evaluation of permanent impairment should only consider the impairment as it is at the time of the assessment: cl 6.21 of the Guidelines.

9. The evaluation of permanent impairment must not include any allowance for a predicted deterioration. However, it may be appropriate to comment on this possibility in the impairment valuation report: cl 6.22 of the Guidelines.

EVIDENCE BEFORE THE PANEL

1. The evidence before the Panel consisted of the following:

   (a)    Ms Lacmanovic’s indexed and paginated bundle of documents lodged on the Commission’s portal on 19 April 2024 (claimant’s documents), and

   (b)    the insurer’s indexed and paginated bundle of documents lodged on the Commission’s portal on 20 May 2024 (insurer’s documents).

ASSESSMENT UNDER REVIEW

1. Medical Assessor Preston examined Ms Lacmanovic on 12 December 2023 and issued a certificate under s 7.23(1) of the MAI Act on 20 December 2023.[1]

   [1] Claimant’s documents at pages 161-172.

2. Medical Assessor Preston was asked to assess the dispute between the parties about the degree of permanent impairment under Schedule 2, cl 2(a) of the MAI Act in respect of the following physical conditions:

   (a)    right and left shoulders – contusion and spraining of capsular and ligamentous structures, partial-thickness tear, subacromial/subdeltoid bursitis;

   (b)    lumbar spine – musculo-ligamentous strain/sprain, disc protrusion, L5 radiation, and

   (c)    cervical spine – musculo-ligamentous strain/sprain, disc protrusions, C6 radiation.

3. Medical Assessor Preston took a pre-accident medical history and relevant personal details that included the following:

   (a)    Ms Lacmanovic came to Australia from Croatia in 2002;

   (b)    Ms Lacmanovic worked in hospitality, in sales and in a factory supervising temperature control when she resided in Croatia;

   (c)    Ms Lacmanovic has not been in paid employment since she moved to Australia as her husband is on a disability pension and she has been on a carer’s pension for about 10 years;

   (d)    Ms Lacmanovic was involved in a motor accident in 2009/2010 after which, she had temporary (five months) psychological issues driving but no physical injuries;

   (e)    Ms Lacmanovic reported a lifting injury in 2018 associated with back pain for which she sought medical advice, was referred for imaging but did not proceed as symptoms resolved after two or three days, and

   (f)    Ms Lacmanovic reported occasional tension in her neck without any real issues and there was no pre-existing history of shoulder pain on either side.

4. Medical Assessor Preston took the following history of the motor accident and history of Ms Lacmanovic’s symptoms and treatment thereafter:

   “Mrs Lacmanovic reported that the accident occurred on 30 November 2021. She was the driver in the vehicle and there were no passengers. She was wearing a seatbelt. There was a car close behind her and then when she was stationary to turn left, she was hit from behind by another vehicle. There were no further collisions. The airbags were not deployed.

   At the scene, Mrs Lacmanovic described herself as in shock. She took a photo of the license of the driver of the other car who was a young man. There was an older man in the vehicle with him. Neither the ambulance nor the police were called to the scene. Mrs Lacmanovic was able to drive her vehicle to her daughter’s school, pick her daughter up and take her home.

   Mrs Lacmanovic said that night she felt somewhat confused but the following morning was experiencing pain in her neck, low back and in both shoulders. She indicated the neck pain as in the midline, low back pain as in the left lumbosacral junction and shoulder pain anteriorly on both sides. Mrs Lacmanovic said that the symptoms in the right shoulder were troublesome initially and subsequently, symptoms have become more troublesome in the left shoulder.

   On 1 December 2021 she saw Dr Tomka her family doctor in Liverpool. She was referred to have a CT scan of the spine. She was given medications including Norgesic, Nurofen Plus, Mobic and Nexium. Mrs Lacmanovic did not continue to take Norgesic reporting that it had adverse effects. She had a 12 month course of physiotherapy. There was a break in treatment and then further therapy was subsequently approved. She was referred to see Dr Medhat Guirgis who recommended conservative treatment and referred her to have MRIs of both her shoulders.

   Mrs Lacmanovic has also been assessed at a private pain clinic in Liverpool. Recommended interventions were not approved and Mrs Lacmanovic no longer attends that clinic. She is continuing to see a psychologist for assistance with psychological symptoms following the accident related to driving.”[2]

   [2] Claimant's documents at pages 163-164 at [9] and [10].

5. Medical Assessor Preston noted that Ms Lacmanovic had not sustained any relevant further accidents or injuries since the motor accident.

6. Medical Assessor Preston recorded Ms Lacmanovic’s current symptoms as follows:

   (a)    persistent pain in the neck with severity changing with activities such as prolonged standing for cooking and washing the dishes that can aggravate symptoms;

   (b)    persistent low back pain at the lumbosacral junction, worse with walking for prolonged periods, together with intermittent pain in the right leg going laterally to the great toe but no paraesthesia in the legs;

   (c)    persistent bilateral shoulder pain, worse with heavier physical use of the hands, particularly the left, with occasional pain in the forearms, sensory disturbance in both arms when sleeping on her sides, and

   (d)    sensory disturbances in the right forearm and right medial two fingers of the right hand and intermittent pins and needles in the middle fingers of the left hand.

7. Medical Assessor Preston noted that Ms Lacmanovic continued to perform domestic duties including washing up, cooking and cleaning; she drove locally but not for long distances; and she was no longer able to shop independently if heavy lifting was involved.

8. Medical Assessor Preston noted that Ms Lacmanovic’s current and proposed treatment consisted of Nurofen Plus for headaches or neck pain and Mobic for low back pain in combination with Nexium. She was undergoing weekly physiotherapy that incorporated massage, exercises and stretches. She also undertook some exercises at home. She continued to consult a psychologist every third week.

9. In respect of general presentation on clinical examination, Medical Assessor Preston noted that Ms Lacmanovic had a normal gait and that, at one point in the interview, she indicated that she would prefer to stand.

10. On examination of Ms Lacmanovic’s cervical spine, Medical Assessor Preston observed no abnormality in attitude; a somewhat variable range of movement on repeat testing but essentially without dysmetria; no muscle spasm; and no guarding. In respect of range of movement, Medical Assessor Preston observed flexion at 75%; extension at 75%; lateral flexion to the left at 25%; lateral flexion to the right at 25%; lateral rotation to the left at 25% to 75%; and lateral rotation to the right at 50% to 75%. Upper limb neurological examination was normal with respect to power and reflexes. Upper arm circumference was asymmetrical with the right being 0.5cm greater than the left. Forearm circumference was asymmetrical with a right being 1cm greater than the left. It was noted that Ms Lacmanovic described herself as ambidextrous. Ms Lacmanovic reported a reduced sensation to light touch in the left upper arm and hand sparing the forearm in comparison to the right.

11. On examination of Ms Lacmanovic’s thoracic spine, Medical Assessor Preston observed no muscle guarding, no spasm and no dysmetria. Range of movement in the thoracic spine was two thirds normal range in flexion and extension and two thirds normal range in lateral flexion bilaterally.

1. On examination of Ms Lacmanovic’s lumbar spine, Medical Assessor Preston observed that the indicated pain site was at the lumbosacral junction. Range of movement was two thirds normal range in flexion and extension and two thirds normal range in lateral flexion. There was no muscle spasm or guarding. Straight leg raise was negative bilaterally. Thigh and calf circumferences were asymmetrical. Reflexes were symmetrical and there was no lower limb weakness. Ms Lacmanovic reported reduced sensation to light touch in the whole of the right leg with the exception of the medial thigh and calf and sole of the right foot.

2. On examination of Ms Lacmanovic’s upper extremities, Medical Assessor Preston noted that discomfort was reported with movement in extreme range of flexion and extension in both shoulders which was referred to the shoulders themselves and not the cervical spine. Impingement signs were positive on the left side. Active range of movement in the shoulders was measured as 170° flexion on the right and 160° on the left; 40° extension bilaterally; 40° adduction bilaterally; 160° abduction on the right and 150° on the left; 70° internal rotation bilaterally; and 80° external rotation bilaterally. The elbows demonstrated a full range of movement in flexion and extension, as did the forearms on pronation and supination. There were no abnormalities observed of the wrists or small joints of the hands.

3. On examination of Ms Lacmanovic’s lower extremities, Medical Assessor Preston observed symmetrical and pain free normal range of movement in both hips. Movement in both knees was from full extension to 130° of flexion bilaterally. There was no swelling or crepitus in either knee. There was a symmetrical range of movement in both ankles and hindfeet which was within normal range bilaterally.

4. In respect of consistency, Medical Assessor Preston reported some inconsistency on repeat testing for the cervical spine range of movement and that when questioned about this, Ms Lacmanovic stated that it depended on the intensity of the pain that she was experiencing at the time.

5. Medical Assessor Preston listed and provided a summary of the relevant documentation, radiological, medical imaging and other investigations provided to her.

6. Medical Assessor Preston determined that Ms Lacmanovic had sustained the following injuries caused by the motor accident:

   (a)    right and left shoulders – aggravation of underlying acromioclavicular joint osteoarthritis, minor rotator cuff pathology and left subacromial bursitis;

   (b)    lumbar spine – aggravation of underlying degenerative change, and

   (c)    cervical spine – aggravation of underlying degenerative change.

7. In respect of the cervical spine, Medical Assessor Preston opined that Ms Lacmanovic had no significant clinical findings, no muscular guarding, no muscle spasm, no documentable neurological impairment and no significant loss of integrity on imaging. There was no objective evidence of radiculopathy or dysmetria. Whilst Ms Lacmanovic reported intermittent sensory disturbance in both upper limbs, this was not clearly in the dermatomal distribution and not suggestive of non-verifiable radicular complaints. Accordingly, Medical Assessor Preston assessed Ms Lacmanovic as meeting the criteria for diagnosis-related estimates (DRE) cervicothoracic category I impairment of the cervical spine, which equates to a WPI of 0%.

8. In respect of the lumbar spine, Medical Assessor Preston opined that Ms Lacmanovic had no significant clinical findings, no muscular guarding, no muscle spasm, no documentable neurological impairment and no significant loss of integrity on imaging. There was no objective evidence of radiculopathy or dysmetria. Whilst Ms Lacmanovic reported intermittent sensory disturbance in the right leg, this was not clearly in the dermatomal distribution and not suggestive of non-verifiable radicular complaints. Accordingly, Medical Assessor Preston assessed Ms Lacmanovic as meeting the criteria for DRE lumbosacral category I impairment of the lumbar spine, which equates to a WPI of 0%.

9. In respect of the bilateral shoulders, Medical Assessor Preston opined there was impairment of both shoulders based on restricted range of movement in flexion, extension, abduction and internal rotation. On this basis, there was a full percent upper extremity impairment (UEI) in each shoulder that was equivalent to a 2% WPI in each shoulder.

10. Medical Assessor Preston assessed Ms Lacmanovic as having a final WPI of 4%.

11. In respect of apportionment, Medical Assessor Preston noted that there was a pre-existing history of low back pain but that it was insufficient to allow for any deduction.

REVIEW OF EVIDENCE

Application for personal injury benefits

1. On 15 February 2022, Ms Lacmanovic completed an application for personal injury benefits in respect of the motor accident (the application form).[3]

   [3] Claimant's documents at pages 1-6.

2. The application form set out the basic particulars of the motor accident and Ms Lacmanovic provided the following description of the motor accident:

   “On the 30^th November 2021 I was driving along Hume Highway and when I got to the intersection of Hume Hwy and Remembrance Avenue in Warwick Farm I had my left light indicator on showing my intention to turn left into Remembrance Avenue but for unknown reason the vehicle behind with a speed 60-70 K/H hit my vehicle from behind.”[4]

   [4] Claimant's documents at page 3.

3. The Panel notes that in a record of telephone interview between an investigator appointed by the insurer and the driver who collided with Ms Lacmanovic’s car, the driver estimated that he was travelling at a bit less than 60kmph at the time of the collision.[5]

   [5] Claimant's documents at page 147.

4. In the application form, Ms Lacmanovic described her injuries as a result of the motor accident as follows:

   “In this accident I have sustained injuries to my neck, upper and lower back, both shoulders, insomnia, anxiety and depression.”[6]

   [6] Claimant's documents at page 3.

5. In the application form, Ms Lacmanovic denied that she was suffering an illness or injury affecting the same or similar parts of her body at the time of the motor accident.

NSW Police Service Report

1. In evidence, there is a report from NSW Police Service in respect of the motor accident.[7]

   [7] Claimant's documents at pages 7-11.

2. The NSW Police Service report set out the basic particulars of the motor accident. The report noted that the motor accident was reported on 24 January 2022. It described the incident type as “actual minor traffic crash” and was further classified as “late injury only”.[8] The report noted Ms Lacmanovic as the injured party.

   [8] Claimant's documents at page 9.

3. The report described the motor vehicle that Ms Lacmanovic was driving as a 2002 Mitsubishi sedan. The other vehicle involved in the motor accident was described as a 2008 Mitsubishi Express panel van. The impact to Ms Lacmanovic’s vehicle was recorded as “rear to driver side”.[9] The impact to the panel van was recorded as “front to passenger side”.[10]

Treating medical records and reports

[9] Claimant's documents at page 9.

[10] Claimant's documents at page 11.

Pre-accident

1. In evidence, were Ms Lacmanovic’s Bathurst Street Medical Practice clinical records, where she mainly consulted Dr Krisimir Tomka, general practitioner.[11] The first entry in the clinical records was dated 3 December 2014 and the last entry was dated 1 November 2023.

   [11] Claimant's documents at pages 47-70.

2. On 2 July 2018, Ms Lacmanovic consulted Dr Tomka complaining of low back pain and numbness in both legs. Dr Tomka recommended she take Panadol Extra and referred her for an MRI scan of her lumbar spine. The Panel notes that Ms Lacmanovic elected not to undergo the MRI scan.[12]

   [12] Claimant's documents at page 49.

3. On 14 January 2019, Ms Lacmanovic consulted Dr Tomka complaining of acute pain and arthritic pain. Dr Tomka prescribed Mobic 15mg tablets daily and the application of Voltaren Emulgel.[13] However, the clinical records did not disclose the location of such pain.

   [13] Claimant's documents at pages 49-50.

4. On 14 January 2020, Ms Lacmanovic consulted Dr Tomka complaining of arthritic pain. Dr Tomka prescribed Zaldiar 37.5mg tablets. The clinical notes referred to planter fasciitis but again did not identify the location of the arthritic pain complained of.[14]

   [14] Claimant's documents at page 51.

5. On 8 April 2020, Ms Lacmanovic consulted Dr Tomka complaining of arthritic pain. Dr Tomka prescribed Tramal 100mg slow release tablets. Again, the clinical notes did not identify the location of the arthritic pain.[15]

   [15] Claimant's documents at page 51.

Post-accident

1. On 1 December 2021, Ms Lacmanovic consulted Dr Tomka advising that she had been involved in a motor accident the previous day whilst she was the driver of a car turning left when the car behind hit her rear end. No police or ambulance attended the accident scene. Dr Tomka recorded that she complained of pain in the neck, both shoulders and the upper and lower back. She also complained of numbness in both legs. On examination, range of movement in both shoulders was limited, there was neck muscle spasm and upper and lower back paraspinal muscle spasm.[16] No other details were recorded in the clinical records on that date.

   [16] Claimant's documents at pages 53.

2. On 14 December 2021, Ms Lacmanovic consulted Dr Tomka complaining of pain in the neck, both shoulders and upper and lower back. Dr Tomka referred her for CT scans of her cervical spine and lumbar spine and an ultrasound of her right shoulder.[17]

   [17] Claimant's documents at page 53.

3. On 16 December 2021, Ms Lacmanovic underwent a CT scan of her cervical spine by Dr Niranjan Ganeshan on the referral of Dr Tomka. Dr Ganeshan noted the clinical indication as being discopathy. Dr Ganeshan concluded that there were discovertebral changes with facet joint arthropathy; possible cord compression at C5/6 and C6/7; and foraminal narrowing with potential root impingement.[18]

   [18] Claimant's documents at pages 61-62.

4. On 16 December 2021, Ms Lacmanovic also underwent a CT scan of her lumbar spine by Dr Ganeshan on the referral of Dr Tomka. Dr Ganeshan concluded that there was facet joint arthropathy at L4/5 and L5/S1 with disc bulges but no definite impingement.[19]

   [19] Claimant's documents at page 62.

5. On 20 December 2021, Ms Lacmanovic underwent an ultrasound of the right shoulder by Dr Ganeshan on the referral of Dr Tomka. Dr Ganeshan noted the clinical indication as being rotator cuff and concluded that there was subacromial subdeltoid bursa inflammation with impingement in the right shoulder.[20]

   [20] Claimant's documents at page 61.

6. On 17 January 2022, Ms Lacmanovic consulted Dr Tomka who recorded a finding of right subacromial bursitis on ultrasound and cervical spine discopathy, presumably, on the CT scan.[21]

   [21] Claimant's documents at pages 53.

7. On 14 February 2022, Ms Lacmanovic consulted Dr Tomka complaining of pain in her neck, upper and lower back. Dr Tomka prescribed Maxigesic 500mg tablets.[22]

   [22] Claimant's documents at pages 53.

8. On 28 February 2022, Ms Lacmanovic consulted Dr Tomka complaining of pain in her neck, upper and lower back. Dr Tomka referred her to Dr Medhat Guirgis, orthopaedic surgeon.[23]

   [23] Claimant's documents at pages 53-54.

9. On 1 March 2022, Dr Guirgis reported to Dr Tomka that Ms Lacmanovic had consulted him and provided a history that she was involved in a motor accident on 30 November 2021 whilst the seat-belted driver of a car when struck by another car from behind travelling at around 60kmph. He reported that Ms Lacmanovic sustained injuries to her neck, right shoulder and lower back. He noted no other significant past history.[24]

   [24] Claimant's documents at page 13.

10. In respect of Ms Lacmanovic’s cervical spine, Dr Guirgis diagnosed a post-traumatic mechanical derangement of the cervical area of the spine caused by musculo-ligamentous sprain/strain with C5/6 and C6/7 intervertebral disc involvement which had also triggered and aggravated the effects of underlying asymptomatic age-appropriate degenerative changes. He also opined that this injury was causing right C6 radiation. Dr Guirgis also diagnosed “occipital headache attacks”.[25]

    [25] Claimant's documents at page 13.

11. In respect of Ms Lacmanovic’s right shoulder, Dr Guirgis diagnosed post-traumatic symptoms of subacromial impingement in the right shoulder joint caused by contusion of the articular surfaces and spraining of the supporting capsular and ligamentous structures including squashing of the subacromial bursa between the articular surfaces of the head of the humerus and the acromion.

12. In respect of Ms Lacmanovic’s lumbar spine, Dr Guirgis diagnosed post-traumatic mechanical derangement of the lumbar area of the spine caused by musculo-ligamentous sprain/strain with L4/5 and L5/S1 intervertebral disc involvement which had also triggered and aggravated the effects of underlying asymptomatic age-appropriate degenerative changes. He also opined that this injury was causing right L5 radiation.

13. Dr Guirgis recommended that Ms Lacmanovic undergo a right shoulder Gadolinium MRI and continue with conservative treatment.

14. On 7 March 2022, Ms Lacmanovic underwent a CT arthrogram and MR arthrogram of her right shoulder by Dr Ganeshan on the referral of Dr Guirgis. The history provided was one of rotator cuff syndrome with impingement, querying a rotator cuff tear and a labral tear. Findings included minor acromioclavicular joint arthropathy with a small effusion; no contrast to the subacromial subdeltoid bursa to confirm the full-thickness cuff tear; no Hill-Sachs fracture or Bankart lesion; mild subacromial subdeltoid bursa inflammation; an intrasubstance tear of the posterior fibres of the supraspinatus measuring up to 3mm in length without tear or tendinosis; and no evidence of a labral tear or paralabral cyst.[26]

    [26] Claimant's documents at page 14-15.

15. On 14 March 2022, Ms Lacmanovic consulted Dr Tomka complaining of pain in her neck, both shoulders, upper and lower back. Dr Tomka prescribed her Norgesic 35mg tablets and referred her to Mr Goran Josifoski, psychologist.[27]

    [27] Claimant's documents at page 54.

16. On 11 April 2022, Ms Lacmanovic consulted Dr Tomka complaining of back pain. Dr Tomka prescribed Norgesic 35mg tablets.[28]

    [28] Claimant's documents at page 54.

17. On 12 April 2022, Ms Lacmanovic underwent an interventional CT and MRI arthrogram of her left shoulder by Dr Robert Ward on the referral of Dr Guirgis. The history provided was one of rotator cuff syndrome with impingement, querying a rotator cuff tear and a labral tear. Findings included a small intrasubstance delaminating fissure on the deep edge of the scapularis 5mm in length with minor fraying of the deep 25% thickness fibres; focal tendinosis of the superior most scapularis tendon without medialisation of biceps; a

    
    

    bursal-sided insertional tear with a small intrasubstance split of supraspinatus 5mm in length; very small intraosseous ganglia present at the articular insertion of infraspinatus inferiority; a thin labral tear without associated paralabral cyst; and moderate chondral wear of the acromioclavicular joint with mild bone marrow oedema in both the acromioclavicular side of the joint.[29]

    [29] Claimant's documents at page 64.

18. On 9 May 2022, Ms Lacmanovic consulted Dr Tomka complaining of acute pain. There was no reference to the location of the pain. Dr Tomka prescribed Norgesic 35mg tablets.[30]

    [30] Claimant's documents at page 54.

19. On 10 May 2022, Dr Guirgis reported to Dr Tomka on the results of the MRI arthrograms of Ms Lacmanovic’s left shoulder, noting that he had discussed the pros, cons, expectations and risks of image guided steroid injections. As Ms Lacmanovic was apprehensive about the proposed image guided steroid injection, he recommended that she continue with conservative treatment.[31]

    [31] Claimant's documents at page 18.

20. On 6 June 2022, Ms Lacmanovic consulted Dr Tomka complaining of headaches with neck pain and a left shoulder partial tear. Reference was made to physiotherapy. The pain was described as acute. Dr Tomka prescribed Nurofen Plus 200mg tablets.[32]

    [32] Claimant's documents at page 55.

21. On 4 July 2022, Ms Lacmanovic consulted Dr Tomka complaining of pain in the neck, shoulders, upper and lower back. Dr Tomka described it as arthritic pain. He prescribed Nurofen Plus 200mg tablets.[33]

    [33] Claimant's documents at page 55.

22. On 21 September 2022, Ms Lacmanovic consulted Dr Tomka complaining of acute pain. There was no reference to the location of the pain. Dr Tomka prescribed Nurofen Plus 200mg tablets.[34]

    [34] Claimant's documents at pages 55-56.

23. On 27 October 2022, Ms Lacmanovic consulted Dr Tomka complaining of acute pain. There was no reference to the location of the pain. Dr Tomka prescribed Nurofen Plus 200mg tablets.[35]

    [35] Claimant's documents at page 56.

24. On 11 November 2022, Ms Lacmanovic underwent an upper limb nerve conduction study by Associate Professor Cordato on the referral of Dr Guirgis. Associate Professor Cordato concluded that the nerve conduction study was normal and that there was no neurophysiological evidence of any median or ulnar nerve dysfunction for cervical radiculopathy on both sides.[36]

    [36] Insurer's documents at pages 96-97.

25. On 4 December 2022, Dr Guirgis provided a report at the request of Ms Lacmanovic’s lawyers.[37] Dr Guirgis provided a history of the motor accident similar to that provided in his report to Dr Tomka dated 1 March 2022.

    [37] Claimant's documents at pages 19-27.

26. Dr Guirgis noted Ms Lacmanovic’s ongoing complaints as follows:

    (a)    neck pain and stiffness;

    (b)    attacks of right and/or left arm radiation varying in severity and distal extension from one attack to another;

    (c)    occipital headache attack felt in association with tension in the muscles of the neck;

    (d)    painful stiffness and weakness of the bilateral shoulders, noting that, initially, the right shoulder was more painful but that with the passage of time, the condition of the left shoulder worsened and became more painful than the right;

    (e)    lower back pain and stiffness with acute back episodes, and

    (f)    attacks of right L5 sciatic radiation of pain and dysesthesia varying in severity and distal extension from one attack to another.

27. Dr Guirgis noted that Ms Lacmanovic did not report any previous or subsequent conditions.

28. On examination of Ms Lacmanovic’s cervical spine, Dr Guirgis observed that the normal cervical lordosis was lost. In respect of range of movement, Dr Guirgis observed flexion at 40% (45% being the normal range); extension at 35% (45% being the normal range); right lateral flexion at 30% (45% being the normal range); left lateral flexion at 40% (45% being the normal range); right rotation at 60% (80% being the normal range); and left rotation at 80% (80% being the normal range). There was guarding of the paraspinal collar muscles which was demonstrated on exceeding the ranges referred to above. Tenderness was elicited over the C5 and C6, over the greater left supraspinatus fossa and over the right trapezius muscle. There were no neurological deficits in the upper limbs.

29. On examination of Ms Lacmanovic’s left shoulder, Dr Guirgis observed that there was evidence of altered rhythm between glenohumeral and scapular thoracic movements. There was evidence of reduced abduction power against resistance. There was tenderness over the anterior half of the rotator cuff of the left shoulder.

30. On examination of Ms Lacmanovic’s right shoulder, Dr Guirgis observed that there was tenderness over the supraspinatus insertion in the top of the greater tuberosity of the humerus. The Hawkins-Kennedy impingement test and the Neer impingement test were positive.

31. Dr Guirgis provided a table of ranges of movement for each shoulder that demonstrated abduction at 100° on the left and 140° on the right; adduction 30° on the left and 30° on the right; flexion at 150° on the left and 150° on the right; extension at 40° on the left and 20° on the right; external rotation at 50° on the left and 70° on the right; and internal rotation at 60° on the left and 70° on the right.

1. On examination of Ms Lacmanovic’s lumbar spine, Dr Guirgis observed that normal lumbar lordosis was lost. Tenderness was elicited over the right sacroiliac joint and over the L4 and L5. He recorded the ranges of movement in the lumbar spine. He observed guarding of the paraspinal lumbar muscles. Straight leg raising was positive on the right side at 60° and on the left side at 80°. Tension signs were positive on the right side. There were no neurological deficits in the lower limbs.

2. In respect of Ms Lacmanovic’s cervical spine, Dr Guirgis diagnosed a post-traumatic mechanical derangement of the cervical area of the spine caused by musculo-ligamentous sprain/strain with C4/5, C5/6 and C6/7 intervertebral disc involvement which triggered and aggravated the effects of underlying asymptomatic age-appropriate degenerative changes. Dr Guirgis opined that such changes would render the spine more vulnerable to the effect of the traumatic stressors generated in the motor accident. There was CT scan evidence of straightening of the normal cervical lordosis consistent with muscle spasm in response to pain felt during clinical examination. There was also CT scan evidence of multi-level degenerative changes, most prominent at the C4/5, C5/6 and C6/7 levels. At the C4/5 level, there was CT scan evidence of discal instability resulting in minimal anterolisthesis of the body of C4 on that of C5 and of a central posterior annular tear associated with a central posterior disc protrusion extending backwards to indent into the ventral surface of the thecal sac. At the C5/6 level, there was CT scan evidence of a central posterior discophytic protrusion impinging on the right C6 nerve root which caused right C6 radiation. At the C6/7 level, there was CT scan evidence of a central posterior disc protrusion extending backwards to indent into the ventral surface of the thecal sac and also the anterior cord. Dr Guirgis also diagnosed occipital headache attacks.

3. In respect of Ms Lacmanovic’s bilateral shoulders, Dr Guirgis diagnosed post-traumatic symptoms of subacromial impingement in the right and left shoulder joints caused by contusion of the articular surfaces and spraining of the supporting capsular and ligamentous structures including, squashing of the subacromial bursae between the articular surfaces of the head of the humerus and the acromion. The MRI arthrograms of the left shoulder demonstrated a partial-thickness tear of the supraspinatus tendon a superior labrum anterior and posterior (SLAP) tear and subacromial/subdeltoid bursitis with bursal bunching and impingement on abduction. The MRI arthrograms demonstrated evidence of a small intrasubstance tear of the posterior half of the supraspinatus tendon associated with subacromial/subdeltoid bursitis.

4. In respect of Ms Lacmanovic’s lumbar spine, Dr Guirgis diagnosed post-traumatic mechanical derangement of the lumbar area of the spine caused by a musculo-ligamentous sprain/strain with L4/5 and L5/S1 intervertebral disc involvement which triggered and aggravated the effects of underlying asymptomatic age-appropriate degenerative changes most prominent at these two lower lumbar levels, including right and left facet joint arthropathy. Dr Guirgis opined that such changes would render the spine more vulnerable to the effect of the traumatic stressors generated in the motor accident. There was CT scan evidence of a central posterior disc protrusion extending backwards to indent into the ventral surface of the thecal sac at the L4/5 and L5/S1 levels, causing L5 radiation.

5. In respect of causation, Dr Guirgis opined that his above diagnoses were consistent with his findings on clinical examination, the history of the injuries sustained in the motor accident and were concordant with Ms Lacmanovic’s symptoms, signs, incapacities and disabilities.

6. In respect of the cervical spine, Dr Guirgis found that the history and his examination findings were compatible with a specific injury. He confirmed that there was muscle guarding; non-uniform loss of range of motion; non-verifiable left radicular complaints; and no objective signs of radiculopathy. On this basis, he opined that Ms Lacmanovic met the criteria for DRE cervicothoracic category II impairment of the cervical spine, which equated to a WPI of 5%.

7. In respect of the right shoulder based on ranges of movement, Dr Guirgis assessed an 8% UEI which converted to a WPI of 5%.

8. In respect of the left shoulder based on ranges of movement, Dr Guirgis assessed an 11% UEI which converted to a WPI of 7%.

9. In respect of the lumbar spine, Dr Guirgis found that the history and his examination findings were compatible with a specific injury. He confirmed that there was muscle guarding;

   
   

   non-uniform loss of range of motion; non-verifiable left radicular complaints; and no objective signs of radiculopathy. On this basis, he opined that Ms Lacmanovic met the criteria for DRE lumbosacral category II impairment of the lumbar spine, which equated to a WPI of 5%.

10. Dr Guirgis assessed Ms Lacmanovic’s final WPI as 20%.

11. On 19 January 2023, Ms Lacmanovic consulted Dr Tomka complaining of lumbosacral pain. Dr Tomka prescribed Norgesic 35mg tablets.[38]

    [38] Claimant's documents at page 57.

12. On 17 February 2023, Ms Lacmanovic consulted Dr Tomka complaining of lumbosacral pain. Dr Tomka prescribed Norgesic 35mg tablets.[39]

    [39] Claimant's documents at page 57.

13. On 21 February 2023, Dr David Manohar, consultant physician in musculoskeletal medicine, reported to Dr Renata Abraszko, neurosurgeon. The Panel notes that there are no reports or clinical records from Dr Abraszko in evidence. Dr Manohar took a very brief history of the motor accident and noted that, since the motor accident, Ms Lacmanovic had suffered from neck pain, bilateral shoulder pain and low back pain. He noted that she was treated with physiotherapy, massage and medication. He noted that Ms Lacmanovic stated that all activities including walking, bending, lifting, reaching, grasping and twisting aggravated her pain, as did standing for more than 10 minutes. He referred to the medical imaging of the right shoulder, cervical spine and lumbar spine. As Ms Lacmanovic’s pain had been ongoing for 15 months, Dr Manohar opined that she had features of nociplasticity and central sensitisation. He recommended that approval be sought for a pain management program.[40] The Panel notes that there is no evidence that Ms Lacmanovic undertook a pain management program.

    [40] Claimant's documents at pages 36-37.

14. On 17 March 2023, Ms Lacmanovic consulted Dr Tomka complaining of lumbosacral pain. Dr Tomka prescribed Mobic 15mg capsules.[41]

    [41] Claimant's documents at pages 57-58.

15. On 14 April 2023, Ms Lacmanovic consulted Dr Tomka complaining of lumbosacral pain. Dr Tomka prescribed Mobic 15mg capsules.[42]

    [42] Claimant's documents at page 58.

16. On 12 May 2023, Ms Lacmanovic consulted Dr Tomka complaining of acute pain. There was no reference to the location of the pain. Dr Tomka prescribed Mobic 15mg capsules.[43]

    [43] Claimant's documents at page 58.

17. On 7 July 2023, Ms Lacmanovic consulted Dr Tomka complaining of lumbosacral pain. Dr Tomka prescribed Norgesic 35mg tablets.[44]

    [44] Claimant's documents at pages 58-59.

18. On 31 August 2023, Ms Lacmanovic consulted Dr Tomka complaining of lumbosacral pain. Dr Tomka prescribed Mobic 15mg tablets.[45]

    [45] Claimant's documents at page 59.

19. On 26 September 2023, Ms Lacmanovic consulted Dr Tomka complaining of lumbosacral pain. Dr Tomka prescribed Mobic 15mg tablets.[46]

    [46] Claimant's documents at page 59.

20. On 25 October 2023, Ms Lacmanovic consulted Dr Tomka complaining of lumbosacral pain. Dr Tomka prescribed Mobic 15mg tablets

Medical assessment certificate

Medical Assessor Alexey Sidorov: 7 February 2024

1. On 17 January 2024, Ms Lacmanovic was assessed by Medical Assessor Alexey Sidorov in respect of her claimed psychological injuries caused by the motor accident.

2. On 7 February 2024, Medical Assessor Sidorov issued a certificate in respect of the assessment.[47]

   [47] Claimant's documents at pages 174-181.

3. Medical Assessor Sidorov determined that Ms Lacmanovic had suffered a major depressive disorder with anxious distress caused by the motor accident.

4. Medical Assessor Sidorov assessed Ms Lacmanovic as having a final WPI of 5%.

SUBMISSIONS

Ms Lacmanovic’s submissions

1. Ms Lacmanovic, through her lawyer, provided very brief written submissions in respect of the Medical Assessment dated 29 November 2023[48] and 29 January 2024.[49] Written submissions were also provided in respect of the Review dated 21 February 2024[50] and are summarised below.

   [48] Claimant's documents at page 152.

   [49] Claimant's documents at page 153.

   [50] Claimant's documents at pages 154-156.

2. Medical Assessor Preston erred in her assessment of Ms Lacmanovic’s cervical spine.

3. Medical Assessor Preston’s finding that “essentially, there was no dysmetria” was belied by the fact that the range of motion measurements for lateral rotation to the left and right differed. Ms Lacmanovic’s lower range of motion in lateral rotation to the left of 25% was less than the right at 50%. Hence, this grounds a finding of asymmetric movement or dysmetria.

4. The Guidelines are very clear in Table 7 which states that neck pain with non-uniform range of motion (dysmetria) attracts a score of DRE cervicothoracic category II.

5. The Guidelines provide that the assessment of spinal impairment is made at the time the injured person is examined. Therefore, the findings by Medical Assessor Preston as to

   
   

   non-uniform range of motion in the cervical spine are an accurate reflection of dysmetria and the cervical spine at the time of the assessment and therefore, should attract an assessment of DRE cervicothoracic category II.

6. The Guidelines provide a common sense approach to causation. They provide a consideration that the motor accident “could have caused” or “did cause” the “worsening of the impairment” with an acknowledgement that the motor accident does not have to be a sole cause, as long as it is a contributing cause which is more than negligible.

7. Ms Lacmanovic’s cervical spine CT scans demonstrate impingement that were either directly caused by or aggravated by the motor accident when applying the causation tests in the Guidelines.

8. The possible cord compression demonstrated in the cervical spine CT scans at C5/6 and C6/7 as well as foraminal narrowing and potential root impingement, possibly left C4, right C6, is consistent with Ms Lacmanovic’s reports of ongoing neck pain and consistent with the findings of non-uniform range of motion or dysmetria.

9. Medical Assessor Preston erred in not assessing Ms Lacmanovic’s cervical spine injuries as DRE cervicothoracic category II, which equates to a WPI of 5%. Ms Lacmanovic’s total WPI is brought up to 9% when adding Medical Assessor Preston’s findings of 2% WPI for each shoulder.

10. The Panel notes that Ms Lacmanovic referred to inapplicable legislation and Guidelines in her submissions. However, this did not affect the substance of her submissions.

Insurer’s submissions

1. The insurer provided written submissions in respect of the Medical Assessment dated 8 May 2023[51] and 7 December 2023.[52] It also provided written submissions in respect of the Review dated 12 March 2024.[53]

   [51] Insurer's documents at pages 10-14.

   [52] Insurer's documents at pages 15-16.

   [53] Insurer's documents at pages 3-8.

2. The insurer rejected Ms Lacmanovic’s stated grounds for the Review and provided reasons for so doing. The insurer also noted, as an aside, the inapplicable references to legislation and Guidelines in her submissions.

3. In respect of Ms Lacmanovic’s cervical spine, Medical Assessor Preston observed that she demonstrated a normal range of motion in lateral rotation to the left and 50% to 75% of normal range of motion in lateral rotation to the right. Medical Assessor Preston explained that the cervical spine range of motion was variable on repeat testing and that was why a range of percentages was provided for lateral rotation. The inconsistency of range of motion was brought to Ms Lacmanovic’s attention and the latter’s response amounted to the fact that when her pain was more intense, she could not achieve her full capacity of movement.

4. Table 6.8, which follows cl 6.124 of the Guidelines, specifically directs that when assessing dysmetria, to qualify as true non-uniform loss of motion, the Medical Assessor must be convinced that the individual is cooperating and giving full effort. Therefore, the Medical Assessor must be satisfied that the individual is displaying their full or maximum range of motion without any limitation caused by factors such as motivation or pain.

5. Ms Lacmanovic demonstrated up to 75% of normal range of motion in both left and right lateral rotation. This, therefore, represents her maximum range of motion and importantly, as with the other planes of motion, the measurement was symmetrical to the left and right.

6. Medical Assessor Preston’s conclusion with respect to the absence of dysmetria was valid and consistent with the evidence presented to her as well as her documented clinical findings.

7. Whilst it would appear that Ms Lacmanovic demonstrated a greater degree of variability in her range of lateral rotation to the left (compared to the right), what is important, given that pain was impacting her presentation, is that she was capable of achieving 75% of normal range, which was equal to the maximum range of motion she showed in right lateral rotation.

8. Medical Assessor Preston has clearly and appropriately applied her clinical skill and judgment when interpreting her clinical findings and concluding there is no objective evidence of dysmetria in accordance with cl 6.40 of the Guidelines.

9. Medical Assessor Preston appropriately read and considered all of the evidence submitted by the parties, she obtained and documented a comprehensive history from Ms Lacmanovic concerning the state of affairs before the motor accident, the circumstances of the motor accident, what unfolded post-accident and what was proposed for the future. She outlined her clinical examination findings in detail. She provided sufficient reasoning in support of her diagnosis and causation determination. She undertook an assessment of WPI in accordance with the applicable AMA 4 Guides and the Guidelines.

THE RE-EXAMINATION

Preamble

1. The Panel re-examination and assessment of Ms Lacmanovic was undertaken at the Commission’s medical suites on 19 June 2024 by Medical Assessor Kenna on behalf of the Panel.

2. A Serbian language interpreter (NAATI No. CPN4V007R) attended the re-examination to assist Ms Lacmanovic.

Pre-accident medical history and relevant personal details

1. Ms Lacmanovic is a 57-year-old female, housewife, who also is a carer for her husband, a disability pensioner.

2. Ms Lacmanovic was born in Croatia and immigrated to Australia in 2002. She has essentially not worked since moving to Australia. Her husband is now on a disability pension and she has been on a carer’s pension for approximately 10 years.

3. With regards to any relevant prior history, Ms Lacmanovic noted that, in 2018, she incurred an injury to her back whilst lifting a gas bottle for a barbeque. Other than such, she denied any prior history of injuries or symptoms pertaining to either the neck, back, or either shoulder.

4. In 2009, Ms Lacmanovic was involved in a motor accident when she was travelling in a vehicle which was struck by another car. There were no physical injuries but she acknowledged there were psychological issues. Eventually, her psychological symptoms resolved.

History of the motor accident on 30 November 2021

1. On 30 November 2021, Ms Lacmanovic stated that she was the driver of a car with no passengers. She was to pick up her child at school and was wearing a seatbelt at the time. There was a car close behind her. She was stationary at the time about to turn left (in front of or near the school) when she was hit from behind by the other vehicle. She states in further detail that she was clipped by the other car from behind as she slowed down.

2. Airbags did not deploy. Neither police nor ambulance attended the accident scene. She was able to drive the car and she subsequently went home. Nevertheless, she was in shock at the time. She exchanged details with the driver of the other car.

History of symptoms and treatment following the motor accident

1. After getting over the temporary shock of the motor accident, Ms Lacmanovic started to experience neck pain, lower back pain and bilateral shoulder pain, with the right being worse than the left initially.

2. On the day following the motor accident, 1 December 2021, Ms Lacmanovic consulted her general practitioner, Dr Tomka.

3. Ms Lacmanovic was initially referred for X-rays of the cervical spine, prescribed analgesics involving Norgesic and Nurofen Plus and commenced, what appeared to be, an extensive course of physiotherapy over about 12 months, from which she obtained some benefit.

4. In order to exclude any further injuries, Ms Lacmanovic was seen by Dr Guirgis, who also recommended conservative treatment but referred her for an MRI scan of both shoulders.

5. As a result of persistent symptoms, Ms Lacmanovic was also referred to a private pain clinic, who recommended a number of injection procedure interventions that she was not keen on, were not approved and she no longer attends that clinic.

6. Ms Lacmanovic has not undergone any injections, procedures or operations.

7. Nevertheless, she continued to see a psychologist in view of her ongoing symptoms, which she states significantly impacted her self-esteem.

Details of any relevant incidents since the motor accident

1. None.

Current symptoms

1. Ms Lacmanovic’s current symptoms consist of localised neck pain which she stated also involves some headaches, but there is no referral laterally into either shoulder.

2. Ms Lacmanovic stated that she, intermittently, experiences some pins and needles involving both hands, but there are no symptoms referred into the arm from the cervical spine or shoulders. Those distal symptoms are intermittent and have become both less frequent and milder over time. She also complained of right shoulder pain which is localised and more pronounced than the left shoulder, which is now only mild. There is also some lower back pain with a complaint of symptoms involving the lateral aspect of the right leg but no involvement of the left lower extremity.

Clinical examination

General

1. Findings on clinical examination, including specific measurements of range of motion (ROM) where applicable, are provided below in respect of each of the injuries assessed.

Cervical spine (cervicothoracic)

1. There was no muscle guarding or spasm present. There was symmetrically reduced uniform range of motion (stiffness) but no asymmetry present. There was no neurological deficit in either upper limb. Any distal symptoms did not follow the distribution of any specific nerve root and there was no indication of a non-verifiable radicular complaint.

2. On formal examination of range of movement, the range of movement was as follows:

MOVEMENTS	RANGE EXHIBITED
Flexion	10% restriction
Extension	10% restriction
Rotation to the right	10% restriction
Rotation to the left	10% restriction
Lateral bending to the right	10% restriction
Lateral bending to the left	10% restriction

1. Testing of reflexes demonstrated the following:

REFLEX	LEFT	RIGHT
Triceps jerk	Normal	Normal
Biceps jerk	Normal	Normal
Brachioradialis	Normal	Normal

1. Testing of sensation was normal. Two-point discrimination sensation was normal and a point separation of some 6mm and sensitivity to light and firmer touch was normal throughout both upper limbs.

2. There was no muscle wasting. Testing for muscle wasting demonstrated the following:

LEFT	RIGHT
Upper arm	30cm	30cm
Forearm	26cm	26cm

1. Testing for muscle power demonstrated the following:

LEVEL	MOTOR POWER	LEFT	RIGHT
C4	5/5	Normal	Normal
C5	5/5	Normal	Normal
C6	5/5	Normal	Normal
C7	5/5	Normal	Normal
C8	5/5	Normal	Normal
T1	5/5	Normal	Normal

5/5 is active movement against gravity with full resistance; 4/5 is active movement against gravity with some resistance, and 3/5 is active movement against gravity only, without resistance.

1. Dural tension tests demonstrated the following:

TEST	RIGHT	LEFT
Passive neck flexion	Normal	Normal
Brachial plexus stretch	Normal	Normal

Lumbar spine (lumbosacral)

1. There was no muscle guarding or spasm present. There was symmetrically reduced uniform range of motion (stiffness) but no asymmetry present. There was no neurological deficit in either lower limb. Any distal symptoms did not follow the distribution of any specific nerve root and there was no indication of a non-verifiable radicular complaint.

2. On formal examination of range of movement, the range of movement was as follows:

MOVEMENTS	RANGE EXHIBITED
Flexion	10% restriction
Extension	10% restriction
Rotation to the right	10% restriction
Rotation to the left	10% restriction
Lateral bending to the right	10% restriction
Lateral bending to the left	10% restriction

1. Testing of reflexes demonstrated the following:

REFLEX	LEFT	RIGHT
Knee jerk	Normal	Normal
Ankle jerk	Normal	Normal

1. Dural tethering demonstrated the following:

LEFT	RIGHT
Sciatic nerve stretch (straight leg raise)	Normal	Normal
Femoral nerve stretch (prone knee bending)	Normal	Normal

1. Testing of sensation was normal. Two-point discrimination sensation was normal and a point separation of some 6mm and sensitivity to light and firmer touch was normal throughout both lower limbs.

2. There was no muscle wasting. Testing for muscle wasting demonstrated the following:

LEFT (cm)	RIGHT (cm)
Thigh (measured 10cm above the superior pole of the patella)	Equal	Equal
Calf	Equal	Equal

1. Testing for muscle power demonstrated the following:

LEVEL	MOTOR POWER	LEFT	RIGHT
L3	5/5	Normal	Normal
L4	5/5	Normal	Normal
L5	5/5	Normal	Normal
S1	5/5	Normal	Normal

5/5 is active movement against gravity with full resistance; 4/5 is active movement against gravity with some resistance, and 3/5 is active movement against gravity only, without resistance.

1. There was no unilateral muscle atrophy. Testing for muscle atrophy demonstrated the following:

Thigh	Left = right
Calf	Left = right

1. Dural tension tests demonstrated the following:

TEST	RIGHT	LEFT
Prone knee bend	Normal	Normal
Straight leg raise	Normal	Normal
Slump	Normal	Normal

Upper extremities

1. Range of movement of the right shoulder was measured by goniometer as follows:

Measurement	Reference AMA 4 Guides	Normal	UEI
Flexion	150°	Figure 38 (43)	180°	2
Extension	50°	Figure 38 (43)	50°	0
Adduction	50°	Figure 41 (44)	50°	0
Abduction	150°	Figure 41 (44)	180°	1
Internal rotation	80°	Figure 44 (45)	90°	0
External rotation	70°	Figure 44 (45)	90°	0
Total	3

3% UEI x 0.6 = 1.8 rounded to 2% WPI.

1. Range of movement of the left shoulder was measured by goniometer as follows:

Measurement	Reference AMA 4 Guides	Normal	UEI
Flexion	180°	Figure 38 (43)	180°	0
Extension	50°	Figure 38 (43)	50°	0
Adduction	50°	Figure 41 (44)	50°	0
Abduction	180°	Figure 41 (44)	180°	0
Internal rotation	90°	Figure 44 (45)	90°	0
External rotation	90°	Figure 44 (45)	90°	0
Total	0

DIAGNOSIS, CAUSATION AND REASONS

1. The Panel noted that the unchallenged evidence was that Ms Lacmanovic was the driver of a stationary, or almost stationary, motor vehicle that was rear-ended by a panel van travelling at moderate speed. There was a single impact. Airbags were not deployed.

2. On the day following the motor accident, Ms Lacmanovic presented to her general practitioner with complaints of neck, back and bilateral shoulder pain. There was no history of preceding symptoms within a reasonable time prior to the motor accident to suggest any prior impairment. There was a specific complaint of lower back pain and bilateral leg numbness to her general practitioner on 2 July 2018. The Panel accepts Ms Lacmanovic’s evidence that the lower back pain resolved after a few days. There were no further complaints of back pain in her general practitioner’s clinical records prior to the date of the motor accident.

3. The Panel considered that the mechanism of the motor accident could have caused the symptoms complained of by Ms Lacmanovic in her cervical spine, lumbar spine and bilateral shoulders.

4. Ms Lacmanovic remains symptomatic in part and is still attending a supervised gym program. Eight more treatments have been recently approved for gym attendance. Clinical examination indicates that she has regained good functional mobility of the affected areas and that there is no evidence of radiculopathy or fractures.

5. There was consistency of presentation.

6. The injuries are consistent with the stated cause.

7. The absence of symptoms in the affected areas prior to the motor accident and the prompt development of and persistence of symptoms, persisting disabilities and need for ongoing treatment since the motor accident would indicate, on the balance of probabilities, that the motor accident did cause or contribute to Ms Lacmanovic’s current symptoms to an extent that is more than negligible.

8. Based on the findings on physical examination and the documents in evidence, the Panel finds that the following injuries were caused by the motor accident:

   (a)    cervical spine – soft tissue injury and some degree of initial aggravation of underlying pre-existing degenerative change;

   (b)    lumbar spine – soft tissue injury and some degree of initial aggravation of underlying pre-existing degenerative change;

   (c)    right shoulder – soft tissue injury and some degree of initial aggravation of underlying pre-existing degenerative change, and

   (d)    left shoulder – soft tissue injury and some degree of initial aggravation of underlying pre-existing degenerative change.

PERMANENCY OF IMPAIRMENT

1. Permanent impairment is defined by the AMA 4 Guides as impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment. A permanent impairment is considered to be unlikely to change substantially, that is, by more than 3% WPI in the next year with or without medical treatment.[54]

   [54] AMA 4 Guides at page 315 and cl 6.19 of the Guidelines.

2. The Panel considered the question of permanency of impairment and is satisfied that Ms Lacmanovic’s injuries caused by the motor accident have stabilised and are permanent within the meaning of the above definition.

DEGREE OF PERMANENT IMPAIRMENT

1. The Panel assesses Ms Lacmanovic’s degree of permanent impairment as follows:

Body Part or System	AMA 4 Guides/ the Guidelines references (chapter/page/ table)	Permanent (Yes/No)	Current %WPI	%WPI from pre-existing or subsequent causes	%WPI due to motor accident
1.	Cervical Spine DRE I	Ch 3,pages 102-107, AMA 4 Tables 7 & 8 the Guidelines	Yes	0	0	0
2.	Lumbar Spine DRE I	Ch 3,pages 102-107, AMA 4 Tables 7 & 8 the Guidelines	Yes	0	0	0
3.	Right shoulder	Ch 3, 3.1, pages 15-74 Table 1-32 the Guidelines	Yes	2	0	2
4.	Left shoulder	Ch 3, 3.1, pages 15-74 Table 1-32 the Guidelines	Yes	0	0	0

Pre-existing or subsequent impairment

1. The Panel finds that there was no history of preceding symptoms within a reasonable time prior to the motor accident to suggest any prior impairment.

2. There was no evidence of any subsequent impairment.

3. Accordingly, the Panel finds apportionment of impairment irrelevant.

Summary of assessment of permanent impairment

1. The Panel assesses Ms Lacmanovic’s permanent impairment as follows:

   (a)    current WPI: 2%;

   (b)    pre-existing WPI: 0%, and

   (c)    subsequent WPI: 0%.

2. Accordingly, the Panel assesses Ms Lacmanovic’s final WPI as 2%.

FINDINGS

1. The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[55] and Insurance Australia Ltd v Marsh.[56]

   [55] Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45].

   [56] Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21], [64].

2. The Panel adopts the re-examination findings and conclusions of Medical Assessor Kenna based on his examination and specific findings pertaining to diagnosis, causation and assessment of permanent impairment.

3. The Panel determines that Ms Lacmanovic sustained soft tissue injuries and some degree of initial aggravations of underlying pre-existing degenerative changes in her cervical spine, lumbar spine and bilateral shoulders caused by the motor accident.

4. The Panel revokes the certificate issued by Medical Assessor Preston dated 20 December 2023.

5. The Panel determines that the injuries caused by the motor accident give rise to a WPI which is not greater than 10%, that is, 2%.

CONCLUSION

1. The Panel’s determination is set out in the Certificate of Determination attached to this Statement of Reasons.