Mekhici-Benabbad v Insurance Australia Limited t/as NRMA Insurance

[2025] NSWPICMP 752

DETERMINATION OF REVIEW PANEL

CITATION:

Mekhici-Benabbad v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 752

CLAIMANT:

Naziha Mekhici-Benabbad

INSURER:

Insurance Australia Limited t/as NRMA

REVIEW PANEL

MEMBER:

Jeremy Lum

MEDICAL ASSESSOR:

Mohammed Assem

MEDICAL ASSESSOR:

Shane Moloney

DATE OF DECISION:

1 October 2025

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); claimant was slowing to make a right-hand turn when a truck collided with the rear of her vehicle; claimant alleged injuries to her neck, back, bilateral shoulders, and right knee; original Medical Assessor did not accept causation for the bilateral shoulders or right knee; impairment to the neck and back assessed at 0% whole person impairment (WPI); Review Panel requested additional primary information in the form of ambulance report, hospital notes, and GP records; failure by parties to comply with Review Panel’s directions; Review Panel did not accept causation for right knee as the claimant had pre-existing symptoms; other musculoskeletal injuries accepted on the basis of mention in the GP certificate of capacity dated three months after the accident; Held – neck and back assessed as symptoms only with no objective signs at 0% WPI; bilateral shoulders assessed with loss of range of motion at 5% WPI; MAC revoked; new certificate issued.

DETERMINATIONS MADE:  

CERTIFICATE OF DETERMINATION

1.     The Review Panel revokes the certificate of Medical Assessor Raymond Wallace dated
24 March 2025 and issues a new certificate as follows:

(a)    The Review Panel certifies the following injuries were caused by the motor accident:

(i)     cervical spine – soft tissue injury;

(ii)    lumbar spine – soft tissue injury;

(iii)   left shoulder – soft tissue injury, and

(iv)   right shoulder – soft tissue injury.

(b)    The Review Panel finds that the above injuries result in a whole person impairment (WPI) of 5% which is NOT greater than 10%.

STATEMENT OF REASONS

BACKGROUND

1. Ms Mekhici (the claimant) was involved in a motor accident on 21 March 2021. She was the driver of a vehicle that was slowing to make a right-hand turn when a truck collided with the rear of her vehicle. She was transported by ambulance to Bankstown Hospital.

2. The claimant says she suffered injuries to her neck, shoulders, back and right knee as a result of the motor accident.

3. The claimant made a claim for personal injury benefits with Insurance Australia Limited t/as NRMA (the insurer), the third-party insurer of the vehicle that she says caused the accident.

4. A medical dispute arose about whether the degree of the claimant’s whole person impairment (WPI) is greater than 10% WPI. If there is a dispute about the degree of WPI, damages for non-economic loss[1] cannot be awarded and the dispute must be referred to a Medical Assessor for determination.

   [1] See Division 4.3 of the Motor Accident Injuries Act 2017 (MAI Act).

5. On 24 March 2025, Medical Assessor Raymond Wallace found the claimant’s injuries to be caused by the motor accident and assessed the WPI at 0%, which is not greater than 10%.

6. The claimant lodged an application with the Personal Injury Commission (Commission) seeking a review of Medical Assessor Wallace’s assessment.

7. On 21 May 2025, a delegate of the President (Ms Ratula Gupta) accepted the application for review and referred the matter to this Review Panel (the Panel) to conduct the Review proceedings.

MEDICAL ASSESSMENT UNDER REVIEW

1. Medical Assessor Wallace was referred the following injuries for medical assessment:

   ·        cervical spine;

   ·        lumbar spine;

   ·        left shoulder;

   ·        right shoulder, and

   ·        right knee.

2. The Medical Assessor referred to the Application for Personal Injury Benefits Claim Form completed by Ms Mekhici which referred to injuries to her neck and back. The Medical Assessor noted that no complaint was made with respect to Ms Mekhici’s bilateral shoulders or right knee. The claimant also made no complaints to her shoulders at the time of the assessment.

3. The Medical Assessor was satisfied that only the injuries to the neck and back were causally related to the motor accident.

4. The Medical Assessor assessed both the neck and back as DRE Category I or 0% WPI.

SUBMISSIONS

Claimant

1. The claimant submits that the Medical Assessor should have found accident-related causation for the shoulders and right knee. The claimant says she complained of bilateral shoulder and right knee pain in the immediate aftermath of the accident. This was corroborated by the Bankstown Hospital records. Further, the claimant refers to the MRI investigations in September 2021 which showed rotator cuff tears which, as Dr Herald found, were caused by the accident.

2. The claimant refers to the following investigations:

   ·        MRI cervical spine dated 16 July 2021 – C3/C4, C4/C5 and C5/C6 spondylosis with posterior disc osteophytes;

   ·        MRI lumbar spine dated 16 July 2021 – multilevel disc disease, most marked at L4/L5 with bilateral L5 subarticular nerve root impingement;

   ·        MRI right shoulder dated 22 September 2021 – small insertional supraspinatus tear with tendinosis. Moderate AC joint osteoarthritis with minimal subacromial bursitis. Superior sub labral recess;

   ·        MRI left shoulder dated 22 September 2021 – partial-thickness tear of subscapularis with tendinosis and supraspinatus tendinosis, and

   ·        MRI right knee dated 6 December 2021 – small radial tear of lateral meniscus.

3. In relation to the assessment of permanent impairment, the claimant relies on the opinion of Dr Herald, who assessed a WPI of 16% for injuries to the neck, lower back, bilateral shoulder sand right knee. The claimant says the Medical Assessor should have assessed the claimant’s WPI as being greater than 10%.

Insurer

1. The insurer says the onus of proof is for the claimant to establish that her injuries exceed the 10% WPI threshold. The insurer argues that the claimant failed to provide the relevant primary records to support the injuries alleged to have been caused by the motor accident.

2. The insurer also notes in the certificate of Medical Assessor Shahzad that the claimant was diagnosed with multiple sclerosis in 2014.

REVIEW OF THE EVIDENCE

General observations

1. On 30 May 2025, the Panel issued a direction to the parties requesting indexed and paginated bundles of the information they relied upon. The Panel advised that unless documents are uploaded to the Review file, the Panel would not be able to read and consider those documents.

2. Both parties responded with the claimant’s bundle comprising of pages 1-118 and the insurer’s bundle comprising of pages 1-26.

3. The material relevant to the determination of the permanent impairment dispute and the issues in dispute are referred to in the Panel re-examination report and the Panel findings below.

4. At its initial preliminary conference on 25 September 2025 the Panel issued further directions to the claimant and insurer requiring the following:

   ·        clinical records of Dr Saba or any other general practitioner (GP) from four years before the subject motor accident to date;

   ·        clinical records or reports from treating neurologists, neurosurgeons, orthopaedic surgeons or any other specialist that has treated the claimant’s musculoskeletal complaints from four years before the subject motor accident to date;

   ·        ambulance records, and

   ·        Bankstown Hospital records.

5. The directions were not complied with. The effect of this will be discussed below.

PANEL RE-EXAMINATION REPORT

1. The Panel determined at its initial preliminary conference that the claimant be re-examined by Medical Assessor Assem. This occurred on 16 September 2025 and the examination report is below:

“Ms Naziha Mekhici examined by Assessor Assem at PIC rooms on
16 September 2025 in the presence of Ms Itil Barakat, official Arabic speaking interpreter (NAATI# 325838).

PAST MEDICAL HISTORY

Ms Naziha Mekhici is a 51-year-old lady, originally from Algeria, who migrated to Australia in 2003. She lives in Lakemba with her husband and five children.

She worked in administrative roles and later in childcare, operating a family day care business between 2011 and 2015. In 2014 she was diagnosed with multiple sclerosis (MS). In 2020, she developed weakness in her right leg and right hand, associated with paraesthesia in the anterior right leg and began using a Canadian crutch when walking long distances. She was prescribed Kesimpta injections monthly for MS, alongside physiotherapy and exercise, and intermittently took Zoloft for anxiety.

When asked about musculoskeletal symptoms before the accident, Ms Mekhici reported that she sometimes experienced discomfort in both shoulders and in her back, though she described this as ‘uncomfortable’ rather than painful, with no identifiable cause. She emphasised that after the accident the pain became distinctly more severe and was associated with her neck pain radiating into the shoulders.

DETAILS OF SUBJECT ACCIDENT

On 21 March 2021, Ms Mekhici was driving her seven-seater vehicle in Roselands when she slowed to make a right-hand turn into a shopping centre. At that point, her vehicle was struck from behind by a truck. She estimates she was travelling at approximately 50 kilometres per hour prior to slowing. The photographs show moderate damage to her vehicle. She described being thrown backwards then forwards, her rear window shattered. Her vehicle was later declared a total loss. She was wearing her seatbelt at the time. She stated that the airbags did not deploy.

She reported that her right knee struck the dashboard during the collision and was painful from the outset. She also developed immediate pain in her neck, shoulders and back. An ambulance attended the scene. She was fitted with a cervical collar and transported to Bankstown Hospital where she remained under observation for approximately six hours. She recalled being given analgesia and discharged the same day. No imaging was undertaken. Neither the ambulance report nor the hospital records are presently available in the file.

Although she described knee pain immediately at the hospital and to her GP the following day, her Application for Personal Injury Benefits in June 2021 recorded only neck and back injuries, with no mention of knee or shoulders. It was also brought to her attention that Certificate of Capacity/ Certificate of Fitness completed by her GP did not document her shoulder complaints until 22 September 2021 and right knee complaints on 11 March 2022. She reported that there was initial mild discomfort that later increased in intensity.

History of Symptoms and Treatment Following the Accident

On 16 July 2021, an MRI of the cervical and lumbar spine showed multilevel cervical spondylosis at C3/4, C4/5 and C5/6 with posterior osteophytes, and multilevel lumbar spondylosis, most pronounced at L4/5 with probable bilateral L5 subarticular nerve root irritation. The clinical notes for this scan specifically recorded a history of 'rear car collision, neck and shoulder pain.’

On 22 September 2021, MRI scans of both shoulders were obtained. The left shoulder showed a small insertional tear and intrasubstance tear of the supraspinatus, supraspinatus tendinosis, moderate acromioclavicular joint arthropathy with subchondral bone oedema, minimal subacromial bursitis and a sub labral recess. The right shoulder showed supraspinatus tendinosis, tendinosis of the superior subscapularis with a small partial-thickness bursal surface tear, and a small SLAP tear.

On 6 December 2021, an MRI of the right knee showed a small radial tear of the lateral meniscus, with a small effusion and Baker’s cyst. Dr Tamir Khalil, orthopaedic surgeon, confirmed the meniscal tear and recommended surgery. She elected to pursue conservative measures with analgesia, physiotherapy and weight management. She attended Canterbury Hospital in 2024 for exacerbations of back and knee pain, where she was given analgesia and advised to continue physiotherapy.

CURRENT SYMPTOMS

She complains of constant discomfort and swelling in her right knee. She has difficulty standing from a seated position. Her knee feels weak and unstable. Although she was using a Canadian crutch before the accident, she is now more reliant on it for support.

She has mild intermittent neck discomfort and stiffness. She sometimes has difficulty with cervical rotation. The pain radiates to the upper trapezia and both shoulders.

Her back is sometimes painful. There's no there were no radicular symptoms in her lower extremities.

She currently takes the following medications:

·       Panadol Osteo

·       Targin

Clinical Examination

Ms Mekhici presented to the examination room with an antalgic gait, relying on a Canadian crutch for support. She stated that she was using the crutch for her right knee. She was able to mobilise independently and sat comfortably throughout the interview. Her height was measured at 172 centimetres and her weight at 94 kilograms, giving a BMI in the obese range. She was advised not to attempt any manoeuvre beyond her tolerance that could risk injury.

Cervical spine (cervicothoracic)

On palpation there was generalised tenderness throughout the cervical spine. No paraspinal muscle guarding or spasm was detected. The tenderness extended into the upper trapezius and posterior shoulder regions bilaterally.

Cervical range of motion was globally reduced to approximately three-quarters of normal in flexion, extension, lateral flexion and rotation. There was no asymmetry of movement and no spinal dysmetria observed.

Upper limb neurological examination revealed brisk and symmetrical reflexes. Power, tone, and sensation were normal in both upper limbs. Neural tension signs were negative.

Upper Extremities.

There is no muscle wasting. There was diffuse tenderness over both shoulders without crepitus. Active range of motion was consistent on repeated testing and recorded as follows:

Shoulder ROM	Right°	RUEI%	Left°	LUEI%	Normal
Flexion	140	3	140	3	180
Extension	40	1	40	1	50
Abduction	150	1	170	0	180
Adduction	40	0	40	0	50
Internal rotation	80	0	80	0	80
External rotation	60	0	60	0	60
Total RUEI	5	Total LUEI	4

Lumbar spine (lumbosacral)

There was mild tenderness on palpation of the lumbar spine. Lumbar movements were symmetrically restricted to about three-quarters of the normal range in flexion, extension, lateral flexion and rotation. There was no asymmetry of movement and no spinal dysmetria.

She was able to climb on and off the examination couch without assistance. Straight leg raise testing was to 40° bilaterally but neural tension signs were negative. Neurological examination of the lower extremities revealed normal power, tone, sensation and reflexes.

Right Knee

Inspection revealed mild swelling of the right knee. There was a flexion contracture of approximately 10°. Full flexion was obtained but was painful. Mild mediolateral laxity was noted. Tenderness was present throughout the entire knee joint. Quadriceps wasting was observed, with approximately 2cm atrophy of the right thigh and 1cm atrophy of the right calf compared with the left side.”

RELEVANT PROVISIONS

Assessment of permanent impairment

1. The assessment of the degree of permanent impairment is to be made in accordance with the Motor Accident Guidelines (Guidelines).[2]

   [2] See section 7.21 of the MAI Act.

2. Version 10 of the Guidelines applies to the Review. Part 6 deals with the assessment of permanent impairment.

3. 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 with regard to the matters they address by where they are silent on an issue, the AMA 4 Guides should be followed.

Causation

1. Causation is dealt with at cls 6.5-6.7 of the Guidelines. An abridged form of the requirements is contained in cl 6.7 which states:

   “6.7   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. Further, the provisions of the Civil Liability Act 2002 apply, in particular ss 5D and 5E.

FINDINGS

1. 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 and is to be by way of a new assessment of all the matters with which the medical assessment is concerned.[3]

   [3] Section 7.26(6) of the MAI Act.

2. The evaluation should only consider the impairment as it is at the time of the assessment.[4]

   [4] Clause 6.21 of the Guidelines.

3. The Panel may confirm the certificate of assessment or revoke that certificate and issue a new certificate as to the matters concerned.[5]

   [5] Section 7.26(7) of the MAI Act.

4. The Panel notes the above re-examination report of Medical Assessor Assem. The Panel reconvened on 25 September 2025 and discussed the re-examination report findings before collectively making the below determinations.

Causation and diagnosis

Non-compliance with Panel directions

1. The Panel was disappointed with the parties’ silence with respect to directions issued with respect to the relevant primary material listed above. This material was mentioned in the insurer’s submissions and, in the Panel’s view, could assist with its deliberations on causation of injury.

2. Specifically, in relation to the right knee, the claimant gave a history to Panel’s Medical Assessor Assem that she struck her right knee on the dashboard at the time of the collision “and was painful from the outset”. Although it is accepted that she was conveyed to Bankstown Hospital by ambulance, there was no ambulance or hospital notes that could corroborate the claimant’s given history. In the documentation available, the Panel noted the first documented complaint to the right knee was in the Certificate of Capacity / Fitness completed by the claimant’s GP in March 2022, which was some 12 months after the accident.

3. The production of GP records could also confirm the presence or absence of pre-existing complaints and/or help explain the pathology detailed in the MRI investigations for each of injuries referred for assessment.

4. In the absence of the requested information, the Panel’s below causation findings are based on the claimant’s given history, examination and the available documentation.

Cervical spine

1. Ms Mekhici had no history of neck pain before the accident. Following the motor vehicle collision on 21 March 2021, neck pain was recorded in her Application for Personal Injury Benefits and in Certificates of Capacity completed by her GP. MRI performed in July 2021 demonstrated multilevel cervical spondylosis. The accident plausibly aggravated pre-existing degenerative change, giving rise to persistent discomfort and stiffness.

Lumbar spine

1. Ms Mekhici reported occasional low back discomfort prior to the accident but had no contemporaneous GP or hospital attendances for back pain. Back pain was included in her Application for Personal Injury Benefits and in GP certificates shortly after the accident. MRI in July 2021 showed multilevel lumbar spondylosis, worst at L4/5 with possible L5 nerve root irritation. The timing of symptom onset supports an aggravation of degenerative pathology, now resulting in ongoing restriction and pain.

Shoulders

1. Ms Mekhici described mild bilateral shoulder discomfort before the accident, though no contemporaneous records exist. Shoulder pain was not included in her Application for Personal Injury Benefits but was added in Certificates of Capacity three months after the accident. MRI scans in September 2021 identified supraspinatus tendinosis, partial-thickness tears and acromioclavicular joint arthropathy. The absence of early documentation raises some doubt; however, the imaging confirms pathology which, on balance, is plausibly aggravated by the accident, leading to persistent limitations.

Right knee

1. There is no record of pre-accident knee complaints. Knee pain was not included in
   Ms Mekhici’s Application for Personal Injury Benefits or in the early GP certificates, and the first formal reference to the knee appears approximately one year after the accident. An MRI performed in late 2021 demonstrated a lateral meniscus tear, later confirmed by orthopaedic review with surgery recommended. However, the delayed reporting of knee symptoms, together with her description of anterior patellofemoral pain that gradually worsened before the meniscal tear was diagnosed, makes a causal link with the motor vehicle accident less likely.

2. The Panel does not accept the claimant’s given history that she sustained an injury to the right knee as a result of the accident. If there were immediate symptoms as described, such would have been reported in the GP records together with the neck, low back and bilateral shoulder complaints. On balance, the right knee condition is considered more consistent with the natural progression of degenerative or unrelated intra-articular pathology rather than direct trauma from the rear-end collision.

3. The weakness and the need for a Canadian crutch is more likely due to pre-existing issues which were stated to have commenced from 2020.

4. The Panel therefore determined the following injuries were caused by the motor accident:

   •       cervical spine – soft tissue injury;

   •       lumbar spine – soft tissue injury;

   •       left shoulder – soft tissue injury, and

   •       right shoulder – soft tissue injury.

Permanent impairment

Permanency of impairment

1. Permanent impairment is defined in the AMA 4 Guides (p.315) as follows:

   “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 and by more than 3% in the next year with or without medical treatment.”

2. It is now over four years since the date of the accident. Ms Mekhici has proceeded with conservative treatment to manage her symptoms. In the Panel’s view, Ms Mekhici’s impairment meets the definition of permanency outlined above.

Cervical spine (cervicothoracic region)

1. The claimant reports persistent neck pain. On examination there was no muscle guarding, spasm, asymmetry of motion, dysmetria, or clinical features consistent with radiculopathy. The clinical presentation is therefore most consistent with DRE Cervicothoracic Category I, which attracts 0% WPI (AMA 4 Guides, Table 71, p. 104).

Lumbar spine (lumbosacral region)

1. The claimant describes mild lower back discomfort. Examination demonstrated a symmetrical restriction of movement without muscle guarding, spasm, dysmetria, or asymmetry of motion. Neurological testing was normal. There were no two clinical signs for a diagnosis of radiculopathy. The quadraceps wasting was considered due to Ms Mekhici’s unrelated right knee symptoms. The presentation is consistent with DRE Lumbosacral Category I, which equates to 0% WPI (AMA 4 Guides, Table 72, p. 110).

Shoulders (bilateral)

1. Shoulder range of motion was measured and impairment calculated according to AMA 4 charts (Figures 38, 41 and 44). The right upper extremity demonstrated impairment values consistent with 5% upper extremity impairment (UEI), which converts to 3% WPI (AMA 4 Guides, Table 4, p. 20). The left upper extremity demonstrated a slightly better range, equating to 4% UEI, which converts to 2% WPI.

Combined impairment

Body Part or System	AMA 4 Guides/ Motor Accident 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	AMA 4 Chapter 3, Page 104	YES	0%	0%	0%
2.	Lumbar spine	AMA4 Chapter 3, Page 104	YES	0%	0%	0%
3.	Right shoulder	Figures 38, 41, 44, AMA 4, pages 43, 44, 45	YES	3%	0%	3%
4.	Left shoulder	Figures 38, 41, 44, AMA 4, pages 43, 44, 45	YES	2%	0%	2%

1. Using the Combined Values Chart (page 322 of the AMA 4 Guides), the total WPI is 5%.

CONCLUSION

1. The claimant’s WPI as a result of the motor accident is 5% which is not greater than 10%. The Panel’s findings on causation and impairment were different to that found by Medical Assessor Wallace.

2. The Panel therefore revokes the certificate of Medical Assessor Wallace dated
   24 March 2025. A new certificate is issued at the front of this statement of reasons.