Luckel v QBE Insurance (Australia) Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Luckel v QBE Insurance (Australia) Limited [2024] NSWPICMP 278
CLAIMANT:	Lisa Luckel
INSURER:	QBE Insurance (Australia) Limited
REVIEW PANEL
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Ian Cameron
MEDICAL ASSESSOR:	Peter Yu
DATE OF DECISION:	7 May 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; claimant’s application for review of Medical Assessor Shahzad’s assessment of 7% whole person impairment (WPI); claimant says she injured her upper and lower back, right hip and both knees on 18 January 2017; insurer challenged causation on basis of 2005 lower back injury and alleged long standing history of lower back complaints; claimant denied injuring lower back and said that injury was to her upper back; claimant had six months of treatment after the motor accident and then gap in medical records of two years before further complaints then a further gap; claimant had injury at work to upper back in September 2019 and lumbar spine laminoforaminotomy surgery in August 2021; Held – claimant injured both knees and thoracic spine in the accident from which she had recovered; claimant had lower back injury in 2005 which caused ongoing fluctuating level of symptoms before the accident; gap in recorded complaints to GP reflects minor nature of ongoing complaints; need for surgery not caused by accident; current WPI DRE II 5% due to no radiculopathy and previous WPI, DRE I 0%; no impairment to lower limbs as a result of accident; certificate revoked as figure of 7% included in it.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION The Review Panel: 1. Revokes the certificate issued by Medical Assessor Shahzad dated 30 October 2023. 2. Certifies that the degree of the claimant’s permanent impairment that has resulted from the injuries caused by the motor accident on 18 January 2017 is not greater than 10%.

STATEMENT OF REASONS

INTRODUCTION

Lisa Luckel was involved in a motor accident on 18 January 2017. Ms Luckel says she was driving her car and was at a T-intersection intending to turn left. Another driver (coming from Ms Luckel’s left) turned right into the street from which Ms Luckel was turning. The driver cut the corner and a collision occurred between the front of the offending driver’s car and the passenger side of the claimant’s car.
Ms Luckel says she injured her thoracic and lumbar spine in the accident along with her right hip and both knees. She says she developed radiculopathy in the left leg as a result of her lumbar spine injury which has required surgical treatment.
Ms Luckel made a workers compensation claim against Allianz, as she was at work, between clients at the time of the accident. In due course Ms Luckel made a claim for damages against QBE the third-party insurer of the vehicle that hit hers.
A medical dispute about the degree of the claimant’s whole person impairment (WPI) has arisen in connection with that claim and the claimant referred that dispute to the Personal Injury Commission (Commission) for assessment.
On 30 October 2023 Medical Assessor Shahzad determined Ms Luckel did not have a WPI of greater than 10%. The claimant was disappointed with the outcome of that assessment and lodged an application with the Commission seeking a review of the Medical Assessor’s decision.
On 16 January 2024, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review and on

23 January 2024 the President’s delegate convened this Panel to conduct the Review.

LEGISLATIVE FRAMEWORK

Ms Luckel’s claim and entitlements to compensation are governed by the provisions of the Motor Accident Compensation Act 1999 (the MAC Act).
Compensatory damages under the MAC Act are awarded for economic as well as non-economic losses resulting from the injuries, disabilities and impairments caused by the motor accident.
Damages for non-economic loss are provided for in Part 5.3 of the MAC Act with some limitations and restrictions. For example, non-economic loss damages are limited to a maximum amount in accordance with s 134[1] and entitlement to those damages is restricted by s 131 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
[1] The current maximum as of October 2023 is $620,000.

Permanent impairment assessment

Permanent impairment is assessed in accordance with the Motor Accident Permanent Impairment Guidelines (the Guidelines)[2] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[2] Section 133. The current version of the Guidelines is Version 1 which is effective from 30 November 2017.
Due to the nature of the injuries sustained by the claimant, Chapter 3, the musculoskeletal chapter is relevant as well as Chapter 13, the skin.

Dispute resolution

If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination.[3]
[3] See s 132 and s 44(1)(c) of the MAC Act.
Part 3.4 of the MAC Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Shahzad’s, further medical assessments and the review of medical assessments by this Panel.[4]
[4] Sections 61, 62 and 63 of the MAC Act.

ASSESSMENT UNDER REVIEW

Medical Assessor Shahzad examined the claimant on 28 September 2023 and issued his decision on 30 October 2023. He assessed WPI at 7%.
At [2] the Medical Assessor confirmed he was asked to assess the following injuries:
(a)   hip – injury to the right hip;
(b)   knee – injury to both knees;
(c)   leg – underwent surgery for radiculopathy and persisting signs of radiculopathy in the left leg;
(d)   lumbar spine – left-sided pathology compressing the L5 nerve root and decompressive laminectomy on 16 August 2021, and
(e)   thoracic spine – injury to the thoracic spine.
At [3] he summarised the claimant’s submissions and at [4] the insurer’s noting the significant issue of causation and the claimant’s apparently lengthy history of lower back pain with neurological symptoms before the accident. At [8] he records “she has had on-and-off back pain radiating to her left gluteal muscle, left sacroiliac region and left leg.”
Medical Assessor Shahzad had a history of the accident at [9]. The claimant said she hit both knees on the dashboard and sustained jarring injuries to her lower and mid back and right hip. Her airbags did not deploy but she was shocked. A tow truck was called, Ms Luckel reported to the Medical Assessor that the fire brigade and police attended but no ambulance was called.
Medical Assessor Shahzad at [10] documents that Ms Luckel’s husband collected her from the accident scene and took her straight to Dr Nguyen to whom she complained of pain in her knees, coccyx, upper and lower back.
The claimant returned to full duties at work within six months and on 8 August 2019 reported a recurrence of lower back pain with radiating pain. On 28 September 2019 Medical Assessor Shahzad notes that records indicate there was upper and lower back pain following an incident at work. The claimant was certified fit to work after that incident on

17 February 2020. In March 2021 the claimant saw her general practitioner (GP) complaining of left sided neck pain with pain and tingling in the left arm. She had further back pain and she saw a neurosurgeon and had a left sided L4-5 laminoforaminotomy on 16 August 2021. This resolved a lot of her back pain and left leg pain but not completely.
The claimant is said at [12] to complain of left hip, left knee and left ankle pain as well as left calf numbness. She can have back pain but had none on the day. Ms Luckel said her right knee pain has resolved and she has no symptoms in the right hip and right knee. She described her pain as radiating pain coming from her back down to her left buttock and into her left hip and left knee and ankle.
Medical Assessor Shahzad records that on examination there was full movement in the thoracolumbar spine and lumbosacral spine. He noted paraesthesia on the left side in an L5 dermatome. There was no muscle guarding, swelling, rigidity or spasm in both hips and a normal range of motion.
Knee movements were recorded as normal.
After considering the medical reports, he found all of the claimed injuries present and caused by the accident.
In terms of impairment assessment, he found:
(a)   the thoracic spine injury led to an impairment consistent with a DRE category I (0%) impairment rating due to complaints of pain but no guarding, no dysmetria and no non-verifiable radicular complaints or radiculopathy;
(b)   the lumbar spine injury attracted a DRE category III impairment of 10% due to the surgery and ongoing radiculopathy (although he refers to only one sign of radiculopathy that is the sensory loss in the left lower limb). He found there was documented evidence of a pre-existing intermittent radiculopathy which he assessed at 5% WPI and which he deducted from the current impairment;
(c)   he found no impairment in the hips, and
(d)   he found a 2% impairment in the knee on the basis of a 1.4cm wasting in the left calf.

ISSUES FOR DETERMINATION

Claimant’s submissions

The claimant sought a review of Medical Assessor Shahzad’s assessment on the basis of a correct finding of DRE category III in the lower back (following the surgery) but an incorrect finding that the claimant had a DRE category II impairment of 5% WPI said to be present before the accident.
The claimant notes there were no immediate pre-accident symptoms in the lower back and that back symptoms were last complained of in 2011, six years before the accident.

Insurer’s submissions

The insurer says there were complaints of back pain in 2016 and that the claimant’s history given to Medical Assessor Shahzad was of episodic back pain and left limb numbness before the accident.
The insurer says the Medical Assessor made a decision about pre-existing impairment based on all of the evidence and gave reasons for his apportionment decision.
The insurer’s submissions in support of the reply to the original application for medical assessment[5] says at [7] that the claimant sustained at most a mild and temporary aggravation of a pre-existing lumbar condition that has resolved. The insurer noted airbags did not deploy, ambulance did not attend the accident and the claimant returned to light duties five days after the accident.
[5] Page 32 of the insurer’s bundle.
The insurer pointed to the 2005 records and notes there was a referral to Dr Sheridan, neurosurgeon and Ms Luckel had exacerbations in December 2005, October 2006, December 2007 and December 2010. The insurer points to other back complaints in

August 2011, February 2013 and on 14 March 2016.
The insurer documents at [27] – [33] the post-accident complaints and submits the claimant’s doctor’s statement in the certificates of fitness “previous lower back pain 12 years ago (never had back pain since)” is inaccurate.
The insurer noted at [34] the claimant had returned from overseas in March 2017 and reported that numbness in her leg was gone.
At [35] – [37] the insurer notes that the records suggest the claimant’s condition had improved.
The insurer then notes at [38]:
“The Assessor will see that after July 2017, there is no reference to ongoing lumbar spine symptoms in the clinical records until 8 August 2019, more than 2 years later after the last reference in the GP records and more than 2.5 years after the subject accident occurred.”
On 8 August 2019 the insurer says the claimant returned to her GP complaining of recurrent lower back pain down the left leg. The insurer noted the difference between the scans from soon after the accident and August 2019 and says at [42] the L4/5 herniation reported on the later scan is unrelated to the accident.
The insurer pointed out that on 13 January 2020 the claimant reported to her GP that she was “feeling good” had stopped all medication and on 17 February 2020 the claimant was referred for physiotherapy for her “chronic back pain”. It was then nine months before back pain was mentioned again.
The insurer points to Dr Kam’s inaccurate history and says at [56]:
“The insurer submits that the available evidence supports a finding that the claimant has a longstanding history of chronic lumbar spine with radiating pain to the left lower limb since at least 2005. The claimant’s complaints have remained essentially unchanged as between the pre and post-accident period. The clinical records suggest that any mild aggravation that may have been sustained in the subject accident had resolved by July 2017, and the claimant’s current complaints did not emerge until August 2019, more than 2 years later.”

Procedural matters

On 2 February 2024, the Panel issued directions to the parties seeking a bundle of documents. The claimant’s bundle was due on 23 February 2024 (received 5 March) and the insurer’s, on 2 March 2024 (received 1 March).
The Panel met on 13 March 2024 to discuss the proceedings and reported to the parties on the same day.
The Panel referred to s 42 of the Personal Injury Commission Act 2020 and the guiding principle and asked the parties to attempt to narrow the dispute.
The Panel noted the claimant’s submission that scarring had been omitted from the original assessment and asked whether the insurer disputed the Panel considering the scarring.

The parties’ responses

The claimant advised in a letter to the Commission dated 22 March 2024:
(a)   she did not dispute the Medical Assessor’s impairment assessment of the thoracic spine and hips and she did not require these parts of her body to be assessed;
(b)   she agreed that the real issue in dispute was the lower back injury and any associated lower limb impairment pursuant to the case of Nguyen, and
(c)   that if there is impairment to the lumbar spine as a result of radiculopathy this does not preclude an additional finding for muscle atrophy in the left leg caused by radiculopathy.
The insurer responded by saying:
(a)   there is no power under the MAC Act to limit the scope of the review and that all of the injuries assessed by Medical Assessor Shahzad need to be reassessed;
(b)   there is a distinction between the Nguyen case and the present case which suggest that if muscle atrophy in the lower limb was caused by the injury to the lower back it would be assessing it twice and refers to cl 1.69;
(c)   in any event the insurer restates its position that the lumbar spine injury and any associated limb impairment is unrelated to the accident, and
(d)   the insurer objected to the scarring being assessed.

Panel decisions

In the light of the insurer’s objections, the Panel determined:
(a) it would reassess all injuries assessed by Medical Assessor Shahzad, but
(b) the scarring would not be assessed.

REVIEW OF THE EVIDENCE

The insurer’s bundle comprises over 800 pages. The claimant’s bundle consisted of 100 pages of documents.
While the Panel has considered all of the documentation uploaded by the parties, the Panel does not intend to refer to all of it but, in accordance with the decision of Justice Basten in Rahman v Insurance Australia Limited t/as NRMA insurer[6] only those documents in the bundles which the Panel considers relevant to the matters in dispute.
[6] [2022] NSWSC 1079 at [63].

Claim form and claim documents

The claimant was injured whilst at work and she submitted a Workers Compensation claim form which:[7]
(a)   is signed and dated 27 January 2017;
(b)   lists injuries to the lower back, legs and knees;
(c)   gives a consistent history of the car accident, and
(d)   says she told “Carmen” at the time that her knees hurt.
[7] Page 72 of the insurer’s bundle.
Workers Compensation certificates of fitness[8] have also been provided.
[8] Pages 24 – 51 of the claimant’s bundle commencing 18 January 2017.
The first certificate of fitness is dated 18 January 2017. Dr Nguyen diagnoses the following injuries, “back injury upper and lower – R hip injury both knee injury soft tissues injury”.

Dr Nguyen also notes under pre-existing factors, “previous lower back pain 12 years ago (never had back pain since)”.
Dr Nguyen identified the following treatments “rest, pain relief, NSAIDs and for physio need XR and MRI lower back may need US”. The claimant was certified unfit for all forms of work until 23 January 2017.
On 20 January 2017 the claimant was certified fit for work four hours a day five days a week with lifting, sitting, and standing restrictions. The claimant was certified fit to work an eight-hour day on 21 April 2017 but with lifting, sitting, and standing restrictions.
The penultimate certificate is dated 2 June 2017 and states that the claimant was fit for a trial of her pre-accident normal duties. The final certificate was dated 5 July 2017 and certifies the claimant fit for pre-accident duties.
The motor accident claim form is signed and dated 21 August 2019.[9]
[9] Page 13 of the claimant’s bundle.
At question 22, Ms Luckel lists a single injury “lower back” and location as “hips, coccyx”. The shading on the body map however also indicates injury to the upper back on both sides (below the shoulder blades) and the back of both thighs.
At section A, the claimant denies any previous compensation claims and at questions 24 and 25, the claimant denies any injuries or illnesses to the same parts of her body as those injured in the accident and says she has no relevant history.
The Medical Certificate in support of the claim form was completed by Dr Nguyen on

16 August 2019. He says he had been the claimant’s GP since 2003 and identifies injuries to the upper and lower back, both knees and right hip. He has shaded the body map in the lower and mid back, the upper back between the shoulder blades and base of the sides of the neck as well as the front and back of the left and right legs (and right hip).

Pre-accident records from the Rainbow Practice

Notes from the Rainbow Practice[10] record an attendance by the claimant with Dr Nguyen on 30 May 2005. The claimant’s back pain was said to be “quite bad”, she was in spasm and very stiff, a slump test was positive and the claimant was prescribed Panadeine Forte. Three days later she returned and saw Dr Phan and said the pain was not settling and she had been getting shooting pains in her left leg with bending and elevating her legs. They were also feeling weak.
[10] Page 162 of the insurer’s bundle.
An X-ray and CT scan of the lumbar spine was performed on 2 June 2005[11] which showed no abnormality in particular the lumbar discs were said to be normal.
[11] Page 309 and 429 of the insurer’s bundle.
There were several further attendances before Dr Nguyen referred the claimant to

Dr Sheridan, neurosurgeon on 4 July 2005.[12] The referral noted the claimant’s back pain had been playing up for more than a month with pain shooting down the left leg and with numbness in the left leg.
[12] Page 266 insurer’s bundle.
The claimant saw Dr Abraszko (for Dr Sheridan) on 6 July 2005 and she reported to

Dr Nguyen on 26 July 2005. Doctor noted improvement with physiotherapy but then two weeks before she saw Ms Luckel, the claimant’s left leg was reported to have gone completely numb. A neurological examination revealed normal power, tone and reflexes but decreased sensation to pin prick in an L5 nerve root distribution. Ms Luckel was referred for an MRI scan because the CT scan did not reveal any disc bulge or protrusion.
The MRI scan of the lumbar spine was done on 13 July 2005[13] and noted the lumbar discs were intact but that there were small bulges at T8/9, T9/10 and T10/11 with no significant nerve root or cord compression.
[13] Page 447 of the insurer’s bundle.
On 2 August 2005 the claimant returned to Dr Abraszko with the MRI. Dr Abraszko suggested more physiotherapy and light duties. She did not think the pain in the left leg was due to nerve root compression. On 5 August 2005 the claimant attended on Dr Nguyen who reported the back was still painful but a bit better and the claimant was having leg pain more at night and while walking.

The GP notes include further consultations in 2005 although the claimant was pregnant and the claimant was having acupuncture. On 24 October 2005 the claimant reported that she thought her pregnancy was aggravating her back pain.
On 10 October 2006, Dr Luu records an exacerbation of back pain when lifting at work and Mobic was prescribed. On 11 October 2006 the claimant attended on Dr Nguyen with back pain radiating to the left lower leg.
On 7 December 2007 there is a note of “constant pain on left side back and radiating to L side behind the leg for three days”. The diagnosis was sciatica and Brufen was prescribed. It appears the pain was so bad the claimant saw Dr Nguyen twice that day.
On 9 June 2009 the claimant attended Dr Vakeeswaran with a history of upper back pain since the night before after twisting her back while lying in bed. She was tender with reduced range of motion in the left arm and neck and Mobic and Digesic were prescribed.
On 25 November 2009 the claimant complained of neck pain as well as other issues.
In January 2010 the claimant was referred for investigations including a brain scan due to a severe headache with neck pain and migraine was diagnosed.
Dr Nguyen referred the claimant to Dr Dowla, neurosurgeon on 1 December 2010[14] saying the claimant had “persistent numbness on her left arm. She had a lower back injury in past and seem Ok with it now. She has on and off numbness on left leg”. The corresponding note in the records says, “numbness on the L arm for ages.”
[14] Page 364 of the insurer’s bundle.
Dr Dowla replied on 15 December 2010 noting the claimant had a five-month history of numbness in her left upper and lower limbs, sometimes accompanied by tingling. The claimant told Dr Dowla of her 2005 back injury with left sided radiating pain which she said, “is affecting her work.” He reviewed the 2005 MRI and wished to repeat it.
On 2 February 2011 the claimant returned to Dr Dowla reporting that the numbness was improving, and she did not complain of back pain. The MRI done on 29 December 2010 showed no abnormality.
The claimant saw Dr Dowla again, in May 2011[15] with mild left sided shoulder pain radiating from the left side of her neck with no definite evidence of radiculopathy and he recommended physiotherapy.
[15] Page 385 of the insurer’s bundle.
On 1 August 2011 the claimant attended Dr Nguyen complaining of back pain which was severe. There was a positive slump test (++ve”) and tenderness with muscle spasm. On

10 August 2011 the claimant attended upon Dr Dowla complaining of lower back pain with left sided radiation and left sided neck pain. He found[16] no evidence of radiculopathy but that she should have physiotherapy and analgesics including Panadeine Forte.
[16] Page 392 of the insurer’s bundle.
On 26 October 2011 the claimant saw Dr Dowla again. She had improved having left McDonalds but was having mild back pain while lying in bed.
On 23 February 2012 the claimant saw Dr Nguyen with a sore shoulder on the left side running to the neck. She was tender and there was spasm on the neck and trapezius and paraspinal muscles.
On 7 February 2013 the claimant hurt her back putting on her seat belt and reported to

Dr Nguyen that her back had been painful on and off for the last few days. She had been working a lot and carrying her bay. She was prescribed Brufen.
On 19 and 21 November the claimant attended Dr Vakeeswaran and Dr Nguyen with left shoulder pain, neck and left arm pain and the claimant was given a sample of Lyrica.
The claimant had a left shoulder ultrasound on 21 November 2013 (page 480) with no issues detected. A CT of cervical spine done the next day due to “numbness in the left shoulder and arm” showed no abnormality.
On 26 November 2013 the claimant attended Dr Nguyen for review with the CT scans. The Lyrica was helping.
On 9 May 2015 the claimant was complaining of pain in the neck and pins and needles on the left side of her face and arm and she was referred by Dr Nguyen for a CT scan. The CT scan was undertaken of the cervical spine on 14 May 2015. There were no disc bulges but some mild foraminal stenosis on the left at C7/T1. The claimant saw Dr Nguyen that day and Ms Luckel was still tender and sore in the paraspinal and cervical spine muscles. She was given a sample of Celebrex.
On 14 March 2016 the claimant attended Dr Nguyen complaining of an aching sore back after picking up the washing. Ms Luckel was tender and sore with a negative (“-ve”) slump test and spasm. She was prescribed Brufen and Panadeine Forte. On 17 and 19 March 2016 the pain was still present but on 19 March the claimant was given clearance to return to work.

Treating medical records, reports and radiology after the accident

The claimant saw Dr Nguyen on the day of the accident. The note says “MVA this [morning] while driving at work hurt from knee up R >> L and the coccyx.”
Dr Nguyen performed an examination and noted:
“slight tender [trapezius] and upper back thoracic sparaspinal [muscles] and pain ++ lower back. [Sacroiliac joint] R >> l and sore tender lower spine with ++ lower back p[araspinal muscle in spasm slumpt test [? Positive] on the right side.
Nil numbness but the pain is down the R knee.
Both knee sore R >> L
R hip ++ tender sore trochanteric bursa +++ tender and limping
Impression upper and lower back injury sacral injury and R hip injury and both knee injury with bruise +++
Need NSAIDs and need Panadeine Forte.”
Dr Nguyen prescribed Voltaren and Panadeine Forte, referred the claimant for a lower back X-ray including coccyx and an MRI of the lower back.
Dr Nguyen spoke with the claimant’s employer on 19 January 2017 and on 20 January 2017 the claimant returned to see Dr Nguyen. Ms Luckel was tender and sore in the lower back with spasm. The slump test was positive on the right side and the claimant was tender in both sacroiliac joints with shooting pain on both knees and tender in the upper back and she was limping. The claimant was not sleeping well due to pain and feeling restless.
Dr Nguyen referred[17] the claimant for physiotherapy on 18 January 2017 for treatment to the upper and lower back, right hip and both knees.
[17] Page 533 of the insurer’s bundle.
The physiotherapist, Mr Tsui was in the practice and saw the claimant on 23 January 2017. He records pins and needles down both legs.
Dr Nguyen has completed a questionnaire for the workers compensation insurer on

30 January 2017[18] noting the claimant’s car accident occurred while she was at work.

Dr Nguyen notes symptoms of neck and shoulder pain with muscle spasm. Pain in both upper and lower back and pain on hip and knee right more than the left. He diagnosed a soft tissue injury and bruise. Dr Nguyen said the claimant required a lower back MRI and right hip ultrasound as well as physiotherapy treatment. Dr Nguyen supported reduced hours and restrictions on lifting and sitting.
[18] Page 52 of the claimant’s bundle.
On 1 February 2017, Dr Nguyen records that the claimant had stopped Panadeine Forte but was still taking Voltaren. The claimant reported numbness in the left leg which was constant but at times worse.
The MRI of the claimant’s lumbosacral spine dated 13 February 2017[19] was done with a history of “back pain extending to both legs, more marked on the left”. The report addressed to Dr Nguyen says that no abnormality was detected. A suggestion of a specific sacrococcygeal spine examination was made if coccygeal abnormality was clinically suggested.
[19] Page 58 of the claimant’s bundle and page 76 of the insurer’s bundle.
An X-ray of the lumbar spine and sacrococcygeal spine done on the same day found no abnormalities.[20]
[20] Page 59 of the claimant’s bundle and page 77 of the insurer’s bundle.
The claimant had further physiotherapy with Mr Tsui who on 14 February 2017 noted the claimant’s back was very sore and she was having difficulty driving with bilateral hip pain and pins and needles down both legs.
On 17 February 2017, Ms Luckel was prescribed Voltaren and she was given a trial of Lyrica. On 24 February 2017, Mr Tsui noted the neck pain was better, there was ongoing back pain, right hip pain and the knee was sore.
On 2 March 2017 Dr Nguyen On 6 March 2017 Dr Nguyen [BG1] gave the claimant a further sample of Lyrica. There is no further record of medications being prescribed. On 9 March

Dr Nguyen wrote to Allianz[21] advising the claimant was getting better in terms of pain and mobility.
[21] Page 90 of the insurer’s bundle.
On 27 March 2017 Dr Nguyen’s notes state “the numbness is gone.” On 28 March 2017

Mr Tsui noted the claimant had returned from the USA and while she had ongoing back and hip pain (left more than right) the “tingling is gone”.
In April 2017, both Dr Nguyen and Mr Tsui remark that while the claimant’s back was better she was having difficulty driving which was causing more pain. In May there were further physiotherapy treatments with slow improvement noted.
On 2 June 2017 the claimant told Dr Nguyen she was with Peak conditioning and had started on a gym programme and was doing well. She reported to Mr Tsui on 6 June 2017 that her back pain was better and her left hip pain was on and off.
On 27 June 2017, Mr Tsui record the claimant’s “lower back pain improved a lot movement better.” He notes however her “bottom pain still on and off” and that the claimant was “feel weak on left leg”.
On 29 June 2017, Peak conditioning reported to the workers compensation insurer.[22] They had been retained to provide rehabilitation and safe return to work support. They noted:
(a)   the claimant had returned to pre-accident duties;
(b)   she reported improvement in strength and hip stability;
(c)   she was no longer waking at night with pain;
(d)   there was some muscle tightness in the hip, and
(e)   Ms Luckel had been given education as to safe lifting and pacing.
[22] Page 83 of the insurer’s bundle.
Progress with physiotherapy continued in early July with Dr Nguyen on 5 July and Mr Phan on 11 July 2017 noting the lower back was better but still sore with exercise physiology and gym work.
The claimant’s last attendance at the Rainbow Practice in relation to the car accident was

19 July 2017 at which stage the claimant was cleared to return to full duties. Dr Nguyen notes “tender sore left sacroiliac joint but movement OK happy to clear but remind re being sensible with her back and if the pain recurs will review.”
Between that day and 8 August 2019, the claimant attended the medical practice on

22 occasions. The claimant was prescribed Panadeine Forte for abdominal pain on

24 July 2017, she reported pain under the left rib with difficulty breathing in October 2017, bad reflux in November 2017, cough, chest pain and abdominal issues in 2018. She had hiatus hernia surgery in February 2019. There is no mention of lower back pain or the motor accident at any of these consultations.
On 8 August 2019 the claimant attended Dr Vakeeswaran complaining of recurrent lower back pain down to the left leg and said that nothing helped except Lyrica which had “helped a bit”. The Panel notes that according to the GP’s records (and Medicare records), no Lyrica was prescribed after the samples provided in February and March 2017.
A CT scan report of the lumbosacral spine on 12 August 2019 was addressed to

Dr Vakeeswaran.[23] It includes a clinical history of left sided sciatica which noted at L4/5 “minor broad herniation causing minor foraminal stenoses”. On 16 August 2019 the claimant attended again referring to a sore back from the car accident and the “pains on and off”. This attendance prompted the completion of the motor accident claim form.
[23] Page 60 of the claimant’s bundle and page 78 of the insurer’s bundle.
On 26 September 2019 the claimant attended on Dr Nguyen. She had “rolled [a] client” in the morning and was now sore in the back upper area. She was tender in the thoracic paraspinal muscles. The claimant was said to be very stiff in the shoulder and neck and while there was lower back pain Dr Nguyen records a negative slump test (“-ve”). The impression was said to be muscular spasm and soft tissue injuries. Norgesic was prescribed and upper back and thoracic X-rays. The Panel notes no lumbar spine radiology was requested at this time.
On 27 September 2019 the claimant saw a physiotherapist at the practice who provided an update to Dr Nguyen on 28 September 2019.[24] The physiotherapist was referred only the thoracic spine to treat and refers to the claimant’s acute muscle strains in the thoracic region. A workcover work certificate noted “upper back injury soft tissue injury”. The claimant had further physiotherapy noting chronic lower back pain from the car accident with bilateral radiculopathy. There were further attendances on both doctors and physiotherapists in October complaining of ongoing pain in the thoracic spine and in both shoulders. The claimant travelled on holidays to Hawaii following which the claimant was reporting significant improvements in the thoracic region but there is a reference to “chronic lower back pain” since the car accident. The physiotherapy provided appears to be only to the thoracic spine and shoulders.
[24] Page 656 of the insurer’s bundle.
In a second report from the physiotherapist dated 25 November 2019[25] the claimant was improving but light duties continued. On 27 November 2019 the claimant returned to

Dr Nguyen with her back pain and referred leg pain worse. Tramal was prescribed in addition to Lyrica.
[25] Page 661 of the insurer’s bundle.
On 24 December 2019 the physiotherapist suggested physiotherapy should continue and light duties should also continue.
The Panel notes that Workcover medical certificates from this period have a separate injury date of 26 September 2019 and refer only to an injury to the upper back.
Further physiotherapy treatments were provided, exercise physiology was commenced and on 13 January 2020, Dr Nguyen reports “feeling good stop all meds not more meds.”
In a report dated 17 February 2020, exercise physiologist Mr Lek says the claimant’s upper back injury was improving but her lower back had flared up and it was now travelling down her legs into her thighs. Dr Nguyen records on 17 February 2020 that in respect of her upper back “there is no pain and doing everything at work”. On examination there was a full range of motion in both shoulders, no tenderness in the neck and upper back, upper back rotation was “Ok nil pain”.
After 17 February 2020 there were six attendances at the practice for a variety of issues with no mention of any upper or lower back pain. On 6 March 2020 Mr Lek, exercise physiologist says in a report to Allianz, the workers compensation insurer that the claimant was cleared to return to pre-injury duties as she no longer had pain in her upper back.
The next attendance that mentions back pain occurred on 8 December 2020. The claimant saw Dr Nguyen and said the pain was keeping her awake and she wanted help sleeping. Lyrica was prescribed.
On 10 February 2021, Dr Nguyen writes that the claimant had “lower back pain, neuropathic radiating pain … worse since last MRI 4 years ago”. And he requested a further MRI.
On 1 March 2021 the claimant was referred to complete Allied Health Care for left arm pain and tingling likely cervical radiculopathy and an MRI had been requested. There is no mention of the car accident although the corresponding note in the records refers to “chronic lower back issues after an MVA”. Mobic and Lyrica were prescribed. Of interest is that the main complaint was left sided neck pain with pain and tingling in the left arm and a provision diagnosis of “cervical radiculopathy”.
A further MRI scan was reported on 19 March 2021 to Dr Nguyen.[26] It had a clinical note of “persistent pain, radicular symptoms”. At L4/5 there was no abnormality but at L5/S1 there was a “central herniation, albeit small, no nerve contact is seen. There is no stenosis”.
[26] Page 62 of the claimant’s bundle and page 80 of the insurer’s bundle.
On 24 March 2021, Dr Nguyen referred the claimant to Dr Kam, neurologist.[27] The referral does not refer to the accident but says, “presents with ongoing severe lower back pain and radicular pain with numbness and tingling down her L leg. She had recent MRI showing L5/S1 bulging compressing on L5.”
[27] Page 63 of the claimant’s bundle and page 159 of the insurer’s bundle.
An MRI of the cervical spine was done on 13 April 2021 due to cervical pain with radiculopathy of left arm. There was mild degenerative spondylosis of the mid cervical spine but no cause for the left upper extremity radiculopathy.
An appointment was made with Dr Kam on 27 April 2021 and on 29 April 2021, Dr Kam reported to Dr Nguyen.[28] He has a history of ongoing lower back pain and left sided leg pain since a car accident. He noted the claimant had been seeing a physiotherapist and had a “fluctuating rollercoaster ride of pain over the last 4 years, to a point where she has had to change her work to a more office-based role”. The claimant reported numbness down the left leg in the dorsum of the left foot and toward her big toe with a L5 distribution.
[28] Page 66 of the claimant’s bundle.
He reviewed the March 2021 MRI noting no annular tear but a “subtle central disc bulge at L5/S1 without any distortion of the nerve root” but a “very subtle potential distortion of the left L5 nerve root”. He recommended a L4/5 interlaminar epidural block which if it provided relief would then suggest surgery might be attempted.
On 5 August 2021, Dr Kam confirmed[29] the L4/5 left sided epidural block which had given her three days of relief and the claimant’s previous pain that she had been having for four years had returned. He advised surgery and the claimant was keen to have it.
[29] Page 94 of the insurer’s bundle.
The operation occurred on 16 August 2021.[30] Dr Kam confirmed an L4 laminotomy, foraminotomy and medial facetectomy was performed. The L5 nerve root was identified and rhizolysis was performed on a “very minor disc prolapse” which was said to be compressing the thecal sac and exiting nerve root. After the operation the L5 nerve root was “seen to be well decompressed”.
[30] The operation report is found at page 95 of the insurer’s bundle.
Dr Nguyen saw the claimant on 24 August 2021 and she reported she was feeling OK after the surgery although she had numbness in the left leg which on 27 August 2021 he reports as being “from the knee down the big toe”.
Dr Nguyen saw the claimant on 17 September 2021 and he records “for the first time there is no back pain” although he does note a “weird aching on [left] leg” with swelling below the knee.
On 28 September 2021, Dr Kam noted[31] the claimant “has progressed relatively well” after the surgery although she had pain in her left ankle which he related to a fall that occurred in hospital when she blacked out. The claimant had some ongoing numbness over the top of her foot and her back pain had improved.
[31] Page 97 of the insurer’s bundle.
An X-ray of the left ankle due to “persistent pain” was done on 30 September 2021[32] and this showed an essentially normal ankle. On 1 October 2021 the claimant reported to Dr Nguyen that her back was better, she was sleeping. There was “slight numbness on L lower leg”. The claimant was still complaining of left ankle issues.
[32] Page 81 of the claimant’s bundle and page 81 of the insurer’s bundle.
On 1 March 2022 the claimant told Dr Nguyen she was “trying to cut down on Lyrica” but her pain was bad from the left knee down to the big toe. Her slump test was negative and the pain was said to be “vague on the L lower leg”. The claimant’s Lyrica medication was adjusted. On 13 April 2022 the claimant was again in pain and Lyrica was increased. There are no further relevant entries.

Other documents

The claimant gave a short statement on 4 March 2024 in support of her application for review. In it she says:
(a)   after the accident she has had ongoing pain and restriction in her lower back which radiates into her left leg;
(b)   she was referred to Dr Kam who operated on 16 August 2021. This gave her some relief, but she continues to have ongoing pain, loss of sensation and she consumes Lyrica on a regular basis;
(c)   she has been told of the entries in the GP notes about her lower back and left leg pain and she says she cannot remember all of her doctor’s visits;
(d)   she recalls having a lower back injury at work in 2005 and 2006 and that she saw a specialist;
(e)
she recalled seeing Dr Dowla for pain and numbness in the left arm and while

Dr Dowla did look at her lower back and left leg his primary concern was her left arm;
(f)    the symptoms in her lower back and left leg settled and she had no symptoms at the time of the accident in her lower back or left leg;
(g)   she does not recall lower back pain in 2013 and 2016;
(h)   she accepts she had symptoms in her back and left leg “for many years before the accident” but that since the accident her symptoms have always been present, and
(i)    she clearly states that her symptoms did not resolve at any time after the accident including after the surgery.

The insurer obtained records from Medicare[33] identifying the treatment providers the claimant has consulted from February 2012 to February 2022.
[33] Page 131 of the insurer’s bundle.
Also provided are records from the Pharmaceutical Benefits Scheme (PBS) from

February 2012 to 2022. These show the claimant was prescribed pain killers including Oxycodone in December 2014, Codeine in February and March 2016, Oxycodone again in October 2016, Paracetamol and Codeine in August 2017, Codeine in January 2018. Pregabalin (Lyrica) was not prescribed until August 2019 and thereafter regularly. Tramadol was also prescribed in November and December 2019.

Medico-legal reports

Dr Dias, occupational physician provided a report dated 8 December 2020 to the claimant’s solicitors.[34]
[34] Page 83 of the claimant’s bundle.
He has a history of the claimant commencing work with Uniting Care in March 2015 as an aged care support worker providing domestic assistance and personal care assistance to elderly clients living on their own.
The claimant indicated a previous thoracic spine injury in 2005 whilst at work in her previous job at a fast-food restaurant. Ms Luckel confirmed she made a workers compensation claim and said that after physiotherapy she made a full recovery within six to eight weeks. The claimant denied any previous thoracic back pain or previous injuries or conditions affecting her lumbar spine, hips or knees before the car accident.
Ms Luckel advised Dr Dias that she has had ongoing chronic lower back pain, pins and needles, numbness and radicular pain down her left lower limb to her left calf and left foot. She said she no longer has significant pain in her thoracic spine, right hip or knees but does experience pain radiating from her lower back.
The claimant said she had physiotherapy, gym exercises, home exercises and medication and she was under the care of her GP having had no specialist intervention.
The claimant confirmed she returned to her previous duties in mid-2017 and had various flare ups of lower back pain as a result of the nature and conditions of her job between 2017 and late 2020. Ms Luckel was promoted to team leader and now worked mainly performing computer-based office work.
The claimant reported hernia surgery in 2018, the 2005 previous upper back injury and no other relevant conditions.
On examination of the thoracic spine, it was normal with no guarding or spasm. There was dysmetria however on rotation but no evidence of thoracic radiculopathy.
The lumbar spine was normal. She was tender from L4 to S1 and there was some muscular guarding but no spasm. Flexion was full (with pain) and extension reduced by one half. There was dysmetria in lateral flexion.
There was reduced sensation in a left L5 dermatome, positive left sided straight leg raise, left mild calf muscle atrophy but reflexes, power and proprioception were normal.
The right hip was normal with all movements full. The knees were also normal with no evidence of swelling or effusion and a normal range of movement with no crepitus.
Dr Dias was of the view the claimant would be at risk of further deterioration and degeneration in the future and would never fully recover. He assessed WPI at 10% on the basis of the existence of a lumbar radiculopathy.
Dr Bodel provided a report dated 29 March 2022[35] to the claimant’s solicitor. He noted injuries to the upper and lower back, right hip and both knees.
[35] Page 100 of the claimant’s bundle.
Dr Bodel has a consistent history of treatment (although he does not include many dates or other details). He says that the surgery has “greatly reduced her back pain and her left leg pain although it has not completely relieved all of her symptoms”.
He diagnosed a “disc rupture at the L4/5 level” caused by the accident with appropriate treatment including surgery. He has a history of “no prior problems with the back or the left leg”. He diagnosed a DRE category III impairment of 10% and added 1% for scarring without reference to the criteria in the TEMSKI.
The insurer had the claimant examined by Dr Shatwell on 7 September 2022.[36] The claimant reported that while she was still employed by Uniting Care, she works full time 80 – 90% of her time being in the office.
[36] Page 54 of the insurer’s bundle.
The claimant gives a consistent history of the accident stating that her knees hit the dashboard and that her airbags did not deploy. Her car was towed from the scene.
Dr Shatwell provides details of the claimant’s treatment and notes she was certified fit for pre-injury duties by early June 2017. Dr Shatwell notes thereafter regular reviews by

Dr Nguyen with no complaints of back pain until August 2019. Dr Shatwell then summarises the GP notes after that.
The claimant reported to Dr Shatwell that she had continuing pain in the left leg in particular the left foot with an altered sensation in her toes. She also complained of some weakness in her left leg. She “did not describe any neck, upper limb or thoracic symptoms today”.
Dr Shatwell documents in much detail the pre-accident medical history including the 2005 incident and the subsequent musculo-skeletal issues.
Dr Shatwell expresses the view that “there is no link between the motor vehicle accident described and Ms Luckel’s chronic lumbar disc degenerative change resulting in a small central protrusion at L4/5 and possibly also L5/S1 …” His diagnosis was chronic degenerative lumbar spinal disease with intermittent L5 nerve root irritation on the left side.
He says any soft tissue injury would have settled within a few weeks or months.
While he considered the claimant had a 11% impairment, he did not attribute this to the accident.

RE-EXAMINATION FINDINGS

The claimant attended a re-examination with Medical Assessor Yu on 12 April 2024 on behalf of the Panel. Ms Luckel did not bring her radiological imaging studies to the examination as had been requested.
The claimant is currently 45 years of age.

History provided by the claimant

The claimant was asked about her past work, educational and training history. She said:
“I’m right-handed.
I was born and grew up in Australia.
I finished Year 10 and later completed some certificates at TAFE, aged care, I have a Certificate IV in community services, and I’ve also done Macca’s management courses.
I was a Manager at McDonald’s Australia for roughly 20 years and I switched over to aged care nine years ago. I was a Care Worker, doing personal care, doing the cleaning, using lifters, medication, wound care, training. It was hands-on, in-person client work. I did that for I think five years with Uniting Care.
Before the accident, I was fine for work. I didn’t have any problems with work.
I’m a Senior Team Leader at a different company now. I lead a team of care workers. I also look after client caseloads in the office. I do go out every now and then to see when there’s an issue or to go out and train, but most of the time I’m in the office.”
Ms Luckel was then asked about her work injury and any role change for health reasons, and she said:
“I did have an injury with Macca’s in 2005.
Chairs fell and I grabbed them, and I hurt my upper back.
I made a claim and had treatment through work and WorkCover. I returned back to full duties. It took maybe about a month or two.
It affected the back outer part of my left arm. I still have issues in the left shoulder blade because of it, but not in the rest of the left arm. It doesn’t stop me from doing anything at work or in my personal life.
I’ve never had invasive treatment like surgery for the back before the [current] accident.
The only other time my health affected my work was when I had my C-sections.”
The claimant said she lived at home with her husband and three children, the youngest of whom is 12 years old. The house has flat access from the street and is single storey.
Before the accident she said she never relied on a disability support pension or similar, and she was independent with all aspects of self-care and domestic activities of daily living.
Ms Luckel said she had a driver licence with no restrictions and conditions. She said she did not smoke or use drugs and in response to a question about alcohol consumption said, “I use it less than monthly; very, very rarely do I drink.”

Past history

When asked to provide a pre-medical history the claimant said:
“I do have endometriosis. I’ve had lots of surgery before 2010. You never get over it, but you learn to live with it, it is ongoing but it is under control with medications. It’s attacked my bowel, my bladder a little bit, definite ovaries and fallopian. I use medication to control it.
I’ve had fundoplication surgery in 2019.
I had my appendix removed with a big surgical cut when I was 15 years old.
I’ve had three Caesareans.
I’ve had surgery to both of my wrists for carpal tunnel syndrome. This was 13 years ago, and fully resolved after surgery. I’ve had no symptoms after I recovered from surgery.
They reckon I had symptoms down my left leg before the accident, but I can’t remember it. If I had back or leg pain, I don’t remember it and we would need to review my medical notes.”
When asked about allergies the claimant said Keflex causes her to break out in a rash, Morphine makes her “feel like something’s crawling all over me” and she has a bad reaction to Tramadol and fainted at the hospital when they gave it to her.
Ms Luckel denied any other previous or subsequent accidents.

History the accident and treatment

The claimant described the accident which happened on 18 January 2017 as follows:
“I remember it because it was my anniversary. I was at work in my role as a Support Worker, working for Uniting. It was in the morning. I was driving from one client’s home to the next client’s home to provide personal care. I was rostered to do personal care usually in the mornings.
I was in my car, which was a Hyundai Hi-35. I was alone in the car. I was on the phone speaking with the hands-free function of my car on the phone with the rostering team. They heard me have the accident. I was wearing my three-point seatbelt. It was sunny and a really hot day. The road was sealed and dry.
I was trying to turn left at a T-intersection. I got to the T-intersection. As I was turning left, a car was turning right into my street from the other street. The front of the other car collided front-on with the front of my bonnet. Then both cars stopped. I’m short. The front of both my knees hit the underside of the dashboard. I don’t remember any other body part hitting the inside of my car.
All I remember is I was pacing the street afterwards. I couldn’t stand still because it hurt my legs and my back. I was in shock but there was a lot of adrenaline. We both got out of our cars by ourselves. We called the police. The police came. The fire truck came because my car was leaking, and they took the photos for me because the other driver was yelling and blaming me. The ambulance did not come. We didn’t call them.
I called my husband, who came to pick me up. My car had to be towed away. My husband drove me from the accident scene straight to see my GP, Dr Vincent Nguyen at Rainbow Medical Practice in Doonside. He told me that I needed to take time off from work. He gave me Panadeine Forte and told me to take some rest. He got me to get some scans done and booked some physiotherapy for me.
I was on worker’s comp for about eight months. I was completely off duties for a couple of weeks. Then it was a few hours each day in the office, then I slowly built up my hours and days at work. I eventually got back to my normal permanent part-time hours. They let me take some clients off my list because I just couldn’t do them because of my lower back pain, which was ongoing. The lower back pain was the main issue.
The pain was going down both legs. My legs were collapsing. I would be at work, and they would collapse from under me, and I would catch myself to stop myself from falling. I never fell.”
In terms of treatment the claimant was unsure of the dates and details but said that at some stage she needed to have injections but “was too scared” to have them so continued doing physiotherapy and swimming and walking in the poot “to try and build up my strength”.
The claimant said none of this treatment relieved her symptoms. She went back to Dr Kam, and he recommended a cortisone injection in her back which she had but it only helped for a day. Ms Luckel said:
“So then I had surgery as recommended by Dr Kam at Westmead Private Hospital. It would have been sometime in August 2021. I did it under my own private insurance, I didn’t end up reopening the workers comp case. They gave me Tramadol and I fainted. Even after that, I was discharged two days after surgery safely.
Then I spent two weeks at home with no work. Then I worked half-days for two weeks, then I went back to work. But I had a lift to and from work from my husband, who worked with me at the same time in the same workplace. The back pain was gone after that, but it does come back a bit when I sit for too long. I know to get up and walk around when the pain comes on, when I walk around, the pain gets better in my back. I’ve always got a little bit of pain there constantly, but it’s manageable.
I still take Lyrica every night.
The left leg pain has changed, it feels different now. I can’t really feel the cold on it. In the shower it has a weird sensation. When I scratch it feels weird. I do feel something, but its not what I expect to feel. The change in feeling affects just my left leg, and only at and below the left knee.
I haven’t had any leg collapses since the surgery. My right leg hasn’t hurt since the surgery. I do struggle doing the stairs because my left leg shakes with weakness. I can’t wear heels, I can’t wear flats, sandals or boots. I can only wear sneakers with orthotics. No one prescribed the orthotics.”

Current symptoms

When Ms Luckel was asked to identify her current symptoms, she said:
“I do have a tiny bit of low back pain.
I do have left leg pain, which starts at my left buttock and goes down the back, outer side of my left thigh, then to the front and outer half of my left knee, and then to my left shin and into the left big toe.
My upper back pain is not from this accident. I think it’s from the 2005 accident.
I did hurt the upper back at work after the subject accident, about a couple of years afterwards because another care worker didn’t want to push during a push-pull task to move a bedbound elderly client. That upper back pain has resolved back to its usual state.
I do have anxiety because I can’t handle for anyone else to be driving except me. I’m okay when I drive.
I don’t have any other injury from this accident.”
In answer to specific questioning, the claimant denied any symptoms in her knees or hips other than the pain that starts in her back and radiates down the left leg.

Current tolerances

The claimant was asked to self-rate her tolerance for certain activities as follows:
(a)   sitting – 30 minutes, limited by her left leg weakness;
(b)   standing – she avoids this, due to both back pain and leg pain;
(c)   walking – limited from the weakness in her left leg. Going uphill or downhill and even down stairs, she says she has to hold the handrail;
(d)   climbing steps – also limited as described above for walking tolerance;
(e)   lifting – she avoids lifting not because there is anything wrong with her arms, but because she does not want to put pressure on her back;
(f)    bending and twisting the low back – this relieves her discomfort she says “it feels good when I twist it”;
(g)   reaching above her head – Ms Luckel reported no difficulty with this activity;
(h)   reaching her feet – Ms Luckel reported no difficulty bending and reaching towards her feet;
(i)    squatting – she says if she attempts a squat her left leg gives way;
(j)    kneeling – she avoids this, due to her left leg weakness;
(k)   driving – limited to one hour. “I have to get out and walk around”. She says when she goes shopping, she tries to park far away to give herself some walking, which helps with the pain, and
(l)    computer work (keying and using a mouse) – no difficulty reported.

Current treatment

Ms Luckel says:
“I’m using Lyrica 150mg each night. I was on 300mg. I dropped it down to 150mg with my doctor, then to 75mg with the doctor, but 75mg made my leg pain come back [to intolerable intensity]. On 150mg each night, my leg pain is there but it is well-controlled.
I use Levlen [to control endometriosis].
I haven’t had any physiotherapy for more than a year, I only had it before and after the back surgery.
The back surgery I had was at the L4/5 level. It involved a scraping of the bone to relieve the pressure on my nerves. Dr Kam didn’t remove anything.”
The claimant said that she sees Dr Nguyen regularly but has no more appointments with

Dr Kam scheduled although she reports that she has “been recommended to go back to see him for more surgery”.

Activities of daily living and current work situation

The claimant told Medical Assessor Yu:
“I’m independent with all of my personal care.
I need help with hanging out washing and pushing the trolley when we shop. I can vacuum and clean the house and ihave no problems with cooking. “
I had to switch when I was a support worker to become a team leader and coordinator because of my low back injury and my legs collapsing. I left Uniting and now I’m at United Protestant Association (UPA).
I am working less than I was at Uniting. It’s a better work-life balance. I do prefer it. It’s less travel and I finish at 4.30pm.”

GP records before the accident

Medical Assessor Yu went through the pre-accident records with the claimant.
Ms Luckel volunteered that she had upper back pain which had recurred since 2005 and she said she could not recall low back pain or left leg symptoms before the subject accident. She acknowledged that the records must be accurate.
Ms Luckel maintained that she had ongoing back pain radiating into her left leg since the date of the accident on 18 January 2017. She reiterated that any left leg symptoms now differ in nature (a different kind of pain) from the pain in that leg just before her back surgery with Dr Kam, which differs again from any back or leg pain that she may have had before the subject accident.
She did not offer an explanation why there are no complaints of lower back and leg pain in the records from August 2017 to August 2019 and from March to December 2020.

EXAMINATION

The claimant weighed 69kg with a height of 1.49m.
As there was some lack of clarity in the records, the submissions and the claimant’s statement as to the upper and lower back, the claimant was asked to confirm what she meant when she referred to the upper and lower back. Medical Assessor Yu pointed to the thoracic spine area and the claimant confirmed that was what she meant when she talked about her “upper back”. So too Medical Assessor Yu pointed to the lumbar spine area and the claimant confirmed this was what she referred to as her “lower back”.

Thoracic spine

The claimant’s middle and upper back posture both sitting and standing was normal.
There were no scars over or near the thoracic region of the spine. There was:
(a) no tenderness on palpation of the midline, and
(b) no tenderness on palpation of the para-spinal muscles.
The range of motion of the thoracic spine was:
(a)   flexion and extension were normal;
(b)   lateral flexion right and left were both normal, and
(c)   rotation both right and left were normal.

Lumbosacral spine

The claimant’s lower back posture both sitting and standing was normal.
There was a 4.5cm scar healed in the spinal midline from the L3 to L5 level.
There was:
(a) no tenderness on palpation of the midline, and
(b) no tenderness on palpation of the para-spinal muscles.
There was no guarding.
The range of motion of the lower back was:
(a) flexion and extension were normal, and
(b) lateral flexion on the right and left were both normal.
The following tests were undertaken:
(a)   Schober test – length increased from 15cm to 20cm (length increase by 5cm or more is normal);
(b)   Trendelenburg test – normal, and
(c)   straight leg raise test standing – normal (no sciatica).

The claimant’s gait was normal. Tandem gait (heel-to-toe walking) was normal for four steps. The claimant was able to heel walk for four steps but limped consistently to the left. The claimant could also tip toe walk and completed four steps and also limped consistently to the left.
Ms Luckel was able to right hop normally twice but could only left hop with difficulty and imbalance.
She was able to squat three times normally. These were full squats whilst holding onto left leg occasionally with her left hand. She could squat walk for four steps but limped consistently to the left.
Ms Luckel could step onto and off from 40cm-high step but was moderately unsteady when leading the step with the left foot. She could step onto and off from 25cm-high step and was only mildly unsteady when leading the step with the left foot.

Lower limb neurological examination

There was a one cm left superolateral shin scar which was old, faint, wide and flat, which

Ms Luckel does not at all attribute to the subject accident.
The following measurements were taken:
(a)   leg length from anterior superior iliac spine to the medial malleolus was 73cm in both the left and the right leg;
(b)   thigh circumference was 53cm in the right and the left, and
(c)   calf circumference was 40.5cm in both the right and the left legs.
Tone was normal and power was measured as follows:
(a)   left thigh flexion 4/5, right thigh flexion 5/5;
(b)   left thigh extension 5/5, right thigh extension 5/5;
(c)   left knee flexion 5/5, right knee flexion 5/5;
(d)   left knee extension 4/5, right knee extension 5/5;
(e)   left ankle dorsiflexion 4/5, right ankle dorsiflexion 5/5;
(f)    left ankle plantar flexion 5/5, right ankle plantar flexion 5/5, and
(g)   left hallux (great toe) extension 5/5, right hallux (great toe) extension 5/5.
Reflexes were tested and recorded as follows:
(a)   reflex knee (patellar tendon) – left 1+, right 1+ – with Jendrassik manoeuvre (reinforcement) left 2+, right 2+ ;
(b)   reflex medial hamstring – left 1+, right 1+ ;
(c)   reflex Achilles – left 2+, right 2+, and
(d)   reflex Babinski – left normal, right normal.
Sensation was tested and results recorded as follows:
(a) light touch with 10g of force using calibrated monofilament – impaired in an L5 distribution including webspace between 1st and 2nd toes, and
(b) pinprick sensation with force-calibrated neuropen – hyperalgesia in L5 distribution including webspace between 1st and 2nd toes.

Right hip

On examination, the right hip looked normal. There was no tenderness over the joint line or in the greater tuberosity.
Movements were recorded as follows:
(a)   flexion – left 120 degrees, right 120 degrees (normal);
(b)   extension – left 0 degrees, right 0 degrees (normal);
(c)   abduction – left 40 degrees, right 40 degrees (normal);
(d)   adduction – left 30 degrees, right 30 degrees (normal);
(e)   internal rotation – left 40 degrees, right 40 degrees (normal), and
(f)    external rotation – left 40 degrees, right 40 degrees (normal)
The psoas muscle was tested on both sides and there was no complaint of pain in the abdomen or gluteal region. The Hoover test results were left normal and right normal indicating no functional weakness in either lower extremity. The Fader test was administered with results on the left and right being normal indicating no labral pathology and the Faber test was also administered showing both the left and right hips were normal with no pain reproduced.

Knees

The claimant’s application for assessment refers to injuries to both of the claimant’s knees however while the claimant accepted she had banged her knees on the dashboard in the accident she categorically denied any ongoing symptoms in the knees.
Medical Assessor Yu observed the function of her knees during the neurological examination of her lower limbs and the clinical examination of her hip.
There was no abnormality evident in the knee joint.
Due to the claimant’s assertion that she had no ongoing issues with her knees (including pain, restriction of movement, weakness) and the normal appearance of her knees when observed, Medical Assessor Yu determined there was no clinical indication to further examine Ms Luckel’s right and left knee.

CONSIDERATION OF THE ISSUES

Is the claimant’s evidence reliable?

There are a number of inconsistencies in the histories given by the claimant and her medical records as follows:
(a)   in her 2019 claim form, the claimant denied any previous compensation claims or any earlier injury to the same parts of her body injured in the car accident. This is inaccurate as the claimant did make a workers compensation claim after her 2005 accident and the records indicate she did injure her lower back in that accident;
(b)
Dr Dias in December 2020 records a history of the 2005 work injury and that the claimant made a full recovery within six to eight weeks. While the claimant did attend for physiotherapy and to see Dr Nguyen in the two months after her

May 2005 accident, the claimant had further problems and treatment in September 2005, October 2005 and October 2006 and the other attendances already mentioned in later years;
(c)   Dr Bodel records a history in March 2022 of no prior back problems;
(d)   in her 2024 statement, the claimant recalled a lower back injury at work in 2005 and 2006. At the re-examination with Medical Assessor Yu, the claimant said she hurt her upper back in 2005 while at McDonalds which affected her left arm and left shoulder;
(e)   in her 2024 statement Ms Luckel says her symptoms never resolved at any time after the car accident. The insurer has pointed to a gap between 19 July 2017 and 8 August 2019 where there is no complaint of back pain in the records of the Rainbow Practice but attendances for other complaints, and a further gap between March and December 2020 when again the claimant was attending upon her doctor but where lower back and leg pain was not mentioned, and
(f)    at the re-examination with Medical Assessor Yu the claimant said she had pain down both legs after her accident with her legs collapsing and this occurred on more than one occasion. Her 2024 statement does not mention her legs collapsing and her treatment records do not include any reference to legs collapsing.
In her 2024 statement and at the re-examination, the claimant conceded she could not recall all of the details of her 2005 accident and the attendances at her doctors. She conceded the documents from her doctors would be accurate.
The Panel notes that the claimant’s accident occurred in 2017, seven years ago and the claimant has a complicated history of upper and lower back injuries, exacerbations and aggravations and several other medical complaints. The Panel is not of the view the claimant is deliberately attempting to mislead the Panel but that she either does not recall or is mistaken in some of the details she has recounted.
The Panel prefers to rely on the claimant’s oral evidence about her injuries and symptoms only when it is corroborated with the documentary evidence which is more likely to be an accurate reflection of the claimant’s symptoms at the time.

What injuries are to be assessed?

In the application for assessment of permanent impairment lodged with the Commission, the claimant listed the following injuries:
(a)   upper back - thoracic spine;
(b)   bilateral knees;
(c)   left leg;
(d)   right hip, and
(e)   lower back – lumbar spine.

What were the injuries caused by the accident?

Thoracic spine or upper back

The claimant’s evidence at the re-examination was that she injured her upper back in 2005 and reinjured it in 2019 when handling a patient. She denied injuring her upper back in the current accident saying she injured her lower back only.
An upper back injury was identified by Dr Nguyen in the first certificate of capacity and in the subsequent certificates up to July 2017. The upper back or thoracic spine is not mentioned in the claim form completed in August 2019.
The Panel accepts on the basis of the contemporaneous records that the claimant did sustain an injury to her thoracic spine in the accident. The claimant was clear that she injured her upper back when pushing a patient in 2019 and the medical records bear this out.
The Panel accepts therefore that any injury the claimant had to her thoracic spine caused by the accident was minor, and on the basis of her history, the claimant has fully recovered from it noting also that at the examination no abnormality was noted.

Knees

Ms Luckel did not claim any injury to her knees in the claim form completed in 2019 and told Medical Assessor Yu she has no symptoms in her knee.
The claimant said she banged her knees on the dashboard. The first certificate of fitness completed by Dr Nguyen nominates “both knee injury”.
On the basis of the evidence of Ms Luckel supported by the contemporaneous notes, the Panel is satisfied Ms Luckel did injure her knees. The nature of the injury is a soft tissue injury from which she has now, on her own admission, fully recovered.

Left leg

Apart from her left (and right) knee hitting the dashboard, the claimant has never identified a frank or specific injury to any part of her leg. At the re-examination with Medical Assessor Yu, the claimant identified symptoms in her left leg, but these symptoms stemmed from her lower back injury and pain radiating down the back of her left leg into her foot and toes.
The Panel notes the claim form does not include a left leg injury and the first certificate of fitness does not include a left leg injury.
The Panel accepts that the claimant has left leg symptoms but is not satisfied the claimant sustained a specific, frank or actual injury to her left leg (leaving aside the left knee).

Right hip

The claimant did not recall hitting any part of her body on any part of the car (other than her knees). She denied any ongoing symptoms and the hip examination conducted by Medical Assessor Yu was completely normal.
The first certificate of fitness completed by Dr Nguyen nominates a “R hip injury” and there are complaints of sacroiliac joint pain in the notes. On the basis of the contemporaneous records, the Panel is satisfied the claimant did injure her right hip in the accident, but the nature of the injury is a soft tissue injury. Based on the clinical records, the claimant’s own history of no further hip problems and Medical Assessor Yu’s examination it would appear that the claimant has completely recovered from this injury.

Lumbar spine

The medical records of Dr Nguyen on the day of the accident refer to a lower back injury and symptoms in the lower back including pain. An X-ray was requested early on, and an MRI of the lower back was done. The certificates of fitness consistently refer to a lower back injury from January to July 2017. The August 2019 claim form refers only to a lower back injury.
The Panel is satisfied on the contemporaneous records and the evidence from Ms Luckel that she did injure her lower back in the accident.

What is the nature of the injury to the lower back?

The pre-accident back condition upper or lower back?

The claimant’s evidence to Medical Assessor Yu was that she injured her upper back only in 2005. She did not recall any lower back complaints or left leg radiating pain before her current accident. This is contrary to her 2024 statement which acknowledges the lower back pain and symptoms.
The records of the Rainbow Practice are comprehensive. Dr Nguyen records back pain on 30 May 2005 and three days later there is a reference to shooting pains in the left leg and a feeling of weakness in both legs. Radiology of the lumbar spine was requested and performed. A referral to Dr Sheridan was written and Dr Abrazsko requested an MRI of the lumbar spine. No investigations were ordered of the thoracic spine at this time. The Panel is satisfied that the claimant did injure her lower back at work in 2005 and that this caused the radicular symptoms in both legs (although greater complaints are recorded in respect of the left) by her GP and specialist.
There were further complaints of back pain radiating to the left lower leg in October 2006, December 2007 and a reference to sciatica which is again consistent with a clinical picture of lower back pain not upper back pain.
The referral from Dr Nguyen to Dr Dowla in December 2010 refers to on and off numbness in the left leg and Dr Dowla’s report documents a history of lower limb numbness and tingling and radiating pain which was “affecting her work”. These records too are consistent with lower not upper back pain.
On 1 and 10 August 2011 the claimant complained of back pain and lower back pain respectively. At an examination on 1 August 2011 Dr Dowla performed a slump test. As a slump test is undertaken to ascertain the presence of lumbar spine radiculopathy it is the Medical Assessor’s view that this supports a finding of lower back pain at that time. On

14 March 2016 the claimant attended on Dr Nguyen complaining of an aching sore back. While the slump test was negative, the fact that the slump test was performed again indicates to the medical members of the Panel that the “back pain” recorded by him is on balance lower back pain.
The Panel does not accept the evidence of the claimant given to Medical Assessor Yu that she injured only her upper back in the work place accident in 2005. The records satisfy the Panel on the balance of probabilities that Ms Luckel injured her lower back in that work-place accident. The nature of that injury is a soft tissue injury with a nerve root injury causing radicular symptoms but not radiculopathy within the meaning of the Guidelines.
The claimant did have upper back symptoms after her work place accident reported on

9 June 2009 and December 2010 resulting in referral to Dr Dowla and neck, shoulder and back symptoms in May 2011, August 2011, February 2012, November 2013 and May 2015.
The Panel therefore accepts that the claimant had symptoms in her neck and upper back between her work-place accident and her motor accident in addition to the lower back symptoms she had from time to time.

What is the lumbar spine injury caused by the accident?

According to her treating GP's contemporaneous records as well as her evidence given to Medical Assessor Yu, Ms Luckel had radiation of symptoms from her low back to her legs more so to the left but also to the right leg in the first several months after that accident.
The Medical Assessors are of the view that clinically, this indicates that the injury was more than just a soft tissue injury and that she sustained an injury to a lumbar spine nerve root in the motor accident.

What is the significance of the absence of symptoms after July 2017?

The medical records from January to July 2017 reflect the medical process including

Ms Luckel’s interface with her treating doctor to address her claim for worker's compensation. Ms Luckel told Medical Assessor Yu that she regained her ability to work her normal hours several months after the subject accident, and regained her ability to participate in normal duties because her employer limited her workload and made adjustments which were permanent and that this was because of her ongoing symptoms. There is no evidence from Ms Luckel’s past employer to support or contradict that evidence of permanent adjustments and restrictions. The Panel notes the claimant’s histories have been consistent over time that at some time after the accident she moved from a client-based role to a more office based role.
The claimant reported to Medical Assessor Yu that she had pain going down both her legs and that they were “collapsing”. She said her legs would collapse from under her and she would catch herself to prevent a fall. The Panel interprets this as suggesting weakness in one or both of her legs. The Panel has carefully examined the GP’s records and the records of the claimant’s specialist and notes a complaint of weakness in the legs on 30 May 2005 and there is one entry on 27 June 2017 of the claimant feeling weak in the left leg. There are no complaints recorded in the notes at any time since the accident of the claimant’s legs collapsing or of her having near falls.
There were no attendances recording lower back or left leg pain from July 2017 to

August 2019. PBS records indicate that during this time no prescriptions were dispensed for any pain killing medication prescribed for the claimant’s lower back pain. Lyrica was not prescribed until August 2019. The claimant did not have physiotherapy, radiological investigations or specialist treatment during this time.
The Panel accepts the claimant’s evidence that she had some ongoing symptoms however the Panel does not accept that she had significant or severe ongoing symptoms after

July 2017. Whatever symptoms the claimant did have during this period were not constant and not significant enough to be mentioned to any of her treating medical or allied health practitioners.

Did the claimant have a further injury in August and September 2019?

The claimant attended her GP on 8 August 2019 complaining of lower back pain down to the left leg and that only Lyrica was helping. The Panel has already noted that Ms Luckel had been given samples only of Lyrica in February and March 2017 and the PBS records do not reveal any prescriptions for Lyrica (Pregabalin) which were filled after 8 August 2019.
The claimant had a lower back CT scan at this time done and there was reference to pain on and off since accident. The claimant acknowledged to Medical Assessor Yu and said in her statement and in the history to Dr Kam that she has experienced numerous exacerbations of her back pain at work and elsewhere since the accident.
The recorded history and the claimant’s own evidence to Medical Assessor Yu was that the 26 September 2019 work injury was a new injury to her upper back. Dr Nguyen requested thoracic radiology at the time. The notes suggest lower back pain was also an issue at this time and a negative slump test is recorded but the Panel notes no lumbar radiology was requested at this time. After the first consultation on 26 September 2019 the majority of the complaints appear to relate to thoracic spine pain, shoulder and some neck symptoms. However, there are still complaints of lower back pain being recorded by the physiotherapist.
The Panel notes the break in reported symptoms from March to December 2020 and that there is no record or report of any trigger (such as an incident at work or accident) at that time. Dr Kam has a history of a “roller-coaster” of pain after the car accident. While he may not have had a history of the 2005 injury, the “roller-coaster” analogy does fit in with the whole of the GP’s records (from 2005 to date) and the evidence of Ms Luckel.
The Panel accepts that the claimant had occasional symptoms after the 2005 accident which was aggravated and exacerbated by her work and other activities from time to time and again after the 2017 motor accident and that in August 2019 she had a more significant aggravation requiring her to seek medical attention and prescription medication.
The Panel also accepts that the September 2019 work injury resulted in a new injury (to the claimant’s upper back) and also resulted in a further exacerbation of lower back pain. Thereafter the Panel accepts that the level of Ms Luckel’s pain and symptoms in her lower back continued to increase to a point where the claimant required the lumbar foraminotomy surgery that she had in 2021.

What was the cause of the surgery?

The cause of the surgery is complicated in Ms Luckel’s case because of the issue of the 2005 injury, the 2017 injury and the aggravations and exacerbations including those of August and September 2019.
The Panel notes the normal MRI of 13 February 2017 and that the CT scan of 2019 and MRI of 2021 were not normal and showed small herniations at L4/5 and then L5/S1. The 2019 and 2021 radiology correlates to the clinical records and the claimant’s history of an increase in symptoms in August 2019 and the workplace injury in September 2019.

Dr Kam’s decision to operate was made on the basis of the L5/S1 central disc bulge causing a “very subtle potential distortion of the left L5 nerve root in the lateral recess”. That bulge was not present on the imaging undertaken shortly after the accident and that bulge was therefore not caused by the accident.
It is the Medical Assessor’s clinical judgment that the surgery is clinically related to the two incidents in late 2019 because until then Ms Luckel was coping with any symptoms that she did have in her lower back with no medical attention, limited medication and minor changes in her work duties.
The Panel is satisfied on the balance of probabilities that but for the exacerbations in late 2019 the surgery at the hands of Dr Kam on 12 August 2021 would not have occurred and that therefore the cause of the surgery was not the injury sustained in the motor accident.
If there is any contribution from the motor accident to the need for surgery it is, in the Panel’s view, not a material contribution but minimal.

WHAT IS THE IMPAIRMENT RESULTING FROM THE INJURY CAUSED BY THE ACCIDENT?

Right hip

The claimant has no current symptoms and the examination of both hips by Medical Assessor Yu was entirely normal.
The claimant’s right hip injury has resolved and the Panel is satisfied there is no ongoing assessable impairment.

Knees

The claimant has no current symptoms and Medical Assessor Yu’s examination of both knees indicated there was no abnormality in the knees.
The injury to the claimant’s knees caused by the accident has resolved and there is no ongoing assessable impairment.

Thoracic spine

The claimant reported no symptoms to Medical Assessor Yu related to the motor accident and the examination of her thoracic spine was entirely normal.
There were no non-verifiable radicular symptoms and no signs of radiculopathy. Whatever injury the claimant may have had to her thoracic spine in the accident, it has resolved and there is no ongoing assessable impairment.

Lumbar spine

Assessment of the spine required consideration of Chapter 3 of AMA 4 Guides. Only the diagnostic related estimate (DRE) method of assessment is allowed (cl 1.111 of the Guidelines).
The spine is divided (cl 1.131) into three regions:
(a)   cervical;
(b)   thoracic, and
(c)   lumbar.
There are five diagnostic related categories (I – V) and a number of indicia provided to assist an examiner or assessor determining which of the categories is the correct category (see Table 70 in the Guides and Table 7 in the Guidelines).
The first is DRE category I which is selected if there are symptoms which may include pain. Ms Luckel said she has some pain in her lower back although acknowledges that the surgery has resolved much of her pain.
A classification of DRE category II can occur if there is:
(a)   pain with guarding; or
(b)   non-uniform range of motion – dysmetria, or
(c)   non-verifiable radicular complaints defined in table 8 as:
(i)symptoms (shooting pain, burning sensation, tingling), and
(ii)which follow the distribution of a specific nerve root but where there are no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes.
In Ms Luckel’s case she had no guarding and all lumbar spine movements were normal and therefore there was no dysmetria. She reported to Medical Assessor Yu that she had left leg pain from her left buttock down the left leg to her toes. The Panel is satisfied this equates to non-verifiable radicular symptoms which would attract a DRE category II impairment.
DRE category III requires there to be two or more of the five signs of radiculopathy provided for in cl 1.138:
“(a) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 8 in these Guidelines)
(b) positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 8 in these Guidelines)
(c) muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 8 in these Guidelines)
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
The medical examination carried out by Medical Assessor Yu revealed:
(a)   all reflexes were present and equal;
(b)   no positive sciatic nerve root tension signs on three tests (Schober, Trendelenburg and straight leg raise);
(c)   no muscle atrophy or decreased limb circumference as both thigh and calf measurements were equal;
(d)   there was sensory impairment in the left lower limb in an L5 dermatomal distribution, and
(e)   there was weakness that rated 4 out of 5 in the Medical Research Council (MRC) criteria for left thigh flexion, left knee flexion and left ankle dorsiflexion when compared to the right. The muscles in the left thigh, left knee and left ankle are innervated by the L4 nerve root. The findings therefore do not correlate with an L5 myotome as the claimant has no weakness in plantarflexion which is controlled by the L5 nerve root.
The claimant’s sensory impairment indicates an L5 left sided nerve root irritation and the Panel notes this is the area where Dr Kam operated. Although there is weakness in the left leg, it is the clinical judgment of the medical members of the Panel that this weakness does not follow an L5 nerve root distribution but is more indicative of an L4 nerve root distribution. As there must be two signs of radiculopathy present at the same level to confirm injury to a particular nerve or nerve root at that level, it is not so in this case. The claimant may have an injury to her L5 nerve but as that injury does not manifest in two of the five objective signs of radiculopathy required by cl 1.138 of the Guidelines that injury does not result in a DRE category III impairment.
The Panel is satisfied that the claimant’s current impairment is therefore a DRE category II impairment of 5%.
In respect of the claimant’s left leg symptoms, the Panel has found above that the claimant did not sustain a specific or frank injury to her left leg (other than the resolved soft tissue injury to her left knee) but that she does have symptoms in her left leg of radiating pain, some weakness and a loss of sensation. These symptoms are what has led to the assessment of a DRE category II impairment and there is no separate impairment related to left leg function assessable under the Guides or Guidelines.
The Panel also notes that Medical Assessor Shahzad assessed a 2% impairment on the basis of a 1.4cm difference in measurement between the calf of the left leg and the calf of the right leg. Medical Assessor Yu did not find any difference in leg length or leg circumference in the calf or thigh region.
Finally, the Panel notes the claimant omitted to refer her surgical scarring for assessment and that the insurer objects to the Panel including an assessment of scarring in our assessment. While there appears to be a dispute about whether the Panel should assess scarring, there does not appear to be a dispute about the degree of WPI that should be assessed noting that both Dr Bodel (for the claimant) and Dr Shatwell (for the insurer) have included a 1% impairment for surgical scarring in their assessments.
As the Panel has found that the need for the claimant’s lumbar spine surgery was not caused by the motor accident, the scarring related to that surgery was also not caused by the accident and the Panel has not included it in the overall WPI.

Adjustments

Clause 1.31 of the Guidelines acknowledges the complication of the assessment process when there is a pre-existing impairment and says:
“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.”
The Panel is satisfied that immediately before the claimant’s accident Ms Luckel would have been assessed as having a DRE category I impairment based on her previous 2005 nerve injury which was at that time not causing any radicular symptoms or signs of radiculopathy but was causing ongoing variable levels of low back pain.
Clause 1.34 of the Guidelines acknowledges the additional complication of addressing a subsequent impairment and provides that its value should be calculated. As with pre-existing impairments, its value needs to be deducted to arrive at an accident-related impairment.
The Panel has found above that the claimant has had multiple aggravations and exacerbations of her lower back after the 2017 accident in particular after a further work-related accident and injury on 26 September 2019. This suggests an adjustment of WPI should be made. However, as the claimant’s total WPI has been assessed at below 10%, the Panel does not propose to further adjust the claimant’s WPI.

CONCLUSION

Of the injuries referred for assessment and the subject of this review, the claimant’s current WPI is assessed as follows:
(a)   lumbar spine - 5% (DRE category II, 5% less DRE category I, 0%);
(b)   thoracic spine - resolved no assessable impairment;
(c)   right hip - resolved no assessable impairment;
(d)   left leg - no frank injury therefore no impairment, and
(e)   both knees -resolved no assessable impairment.
While the Panel has come to the same conclusion as Medical Assessor Shahzad, that is that the claimant does not have a WPI of greater than 10%, as he has included the actual percentage in his certificate along with a finding of the surgery being accident related, it follows that his certificate must be revoked.

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[2024] NSWPICMP 278

7 May 2024