Najjar v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPICMP 377
•29 May 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Najjar v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 377 |
CLAIMANT: | Samir Najjar |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
REVIEW PANEL | |
MEMBER: | Maurice Castagnet |
MEDICAL ASSESSOR: | Shane Moloney |
MEDICAL ASSESSOR: | Margaret Gibson |
DATE OF DECISION: | 29 May 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); assessment of permanent impairment; claimant suffered injury in a motor accident when his vehicle was rear ended by the insured vehicle causing his vehicle to collide with the vehicle travelling in front of him; pre-existing conditions to the same body parts being assessed; cervical spine, lumbar spine and both shoulders; whether a deduction should be made for pre-existing impairment; Held – MAC of 9% permanent impairment revoked; replacement certificate issued with a finding of a degree of permanent impairment of 9% based on different reasons and conclusions. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The issue determined by the Review Panel is whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%. Determinations 2. The Review Panel revokes the certificate of Medical Assessor Alan Home dated 3. The Review Panel issues a new certificate determining that the following injuries caused by the motor accident give rise to a permanent impairment NOT GREATER THAN 10% (9%): · cervical spine; · lumbar spine; · right shoulder, and · left shoulder. |
STATEMENT OF REASONS
BACKGROUND
On 9 April 2022 the claimant, Samir Najjar, was injured in a motor accident when the vehicle he was driving was rear ended by a vehicle insured by NRMA, causing his vehicle to collide with a motor vehicle travelling in front of him.
The claimant claimed that as a result of the accident, he sustained injuries to his cervical spine, lumbar spine and shoulders.
The insurer accepted liability to pay the claimant statutory benefits and damages arising from his injuries, under the Motor Accident Injuries Act 2017 (the MAI Act). As part of his claim for common law damages, the claimant pursued damages for non-economic loss. According to s 4.11 of the MAI Act, no damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by a motor accident is greater than 10%.
The insurer did not concede that the claimant’s physical injuries had crossed that threshold.
To resolve the dispute, the claimant made an application for a medical assessment by the Personal Injury Commission (Commission) pursuant to Division 7.5 of the MAI Act.
The Commission referred the matter to Medical Assessor Home for assessment.
On 15 April 2024, the Medical Assessor issued a certificate finding that the claimant’s physical injuries caused by the accident, gave rise to a permanent impairment of 9%.
THE REVIEW APPLICATION
On 1 May 2024, pursuant to s 7.26 of the MAI Act, the claimant made an application to the President of the Commission to refer the medical assessment of the Medical Assessor to a review panel for review. The Commission accepted that the review application was made within the time prescribed by s 7.26(10) of the MAI Act.
The President referred the application to a review panel for review, being satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect, having regard to the particulars set out in the application.[1]
[1] Section 7.26(5) of the MAI Act.
CONDUCT OF THE REVIEW
According to s 7.26(5A) of the MAI Act, the Review Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission. On this occasion, the Review Panel is constituted by Medical Assessor Moloney, Medical Assessor Gibson and Member Castagnet (the Panel).
Part 5 of the Personal Injury Commission Act 2020 (PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[2]
[2] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings. The panel may determine the proceedings solely based on the written application.[3]
[3] Rule 128 of the PIC Rules.
The review is not limited to only that aspect of the assessment that is alleged to be incorrect and is by way of a new assessment of all the matters with which the medical assessment is concerned.[4]
[4] Section 7.26(6) of the MAI Act.
RELEVANT LEGISLATION, LEGAL PRINCIPLES AND GUIDELINES
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).[5]
[5] The Guidelines applied by the Panel was the Motor Accident Guidelines Version 9.3 which commenced on 6 December 2024.
The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[6]
[6] Clause 6.2 of the Guidelines.
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAI Act in determining issues of causation, particularly ss 5D and 5E of the CL Act.[7]
[7] See s 3B (2) of the CL Act.
In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13, Campbell J made the following observations at [65]:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
The Panel is required to determine the issues on the balance of probabilities. The resolution of causation does not require scientific certainty: Briggs v IAG Ltd (No 2).[8]
[8] [2022] NSWSC 372 (Briggs (No 2)) at [73].
Clauses 6.5 to 6.7 of the Guidelines also address the issues of causation of injury and whether the degree of permanent impairment is caused by injury.
Clause 6.5 of the Guidelines provides:
“An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.”
Clause 6.6 of the Guidelines provides:
“Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.
This, therefore, involves a medical decision and a non-medical informed judgment.”
Clause 6.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable in 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 the 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.”
MEDICAL ASSESSMENT UNDER REVIEW
The injuries that were referred to the Medical Assessor for assessment were as follows:
· cervical spine – musculoligamentous injury to the cervical spine;
· lumbar spine – musculoligamentous injury, and
· right shoulder – rotator cuff tear in the region of the right shoulder.[9]
[9] See the letter from the Commission to the parties dated 8 February 2024 at page 13 of the insurer’s bundle.
The Medical Assessor noted that there was early documentation after the accident of complaints of aggravation of neck pain, pre-existing lower back pain and bilateral shoulder pain. He noted however, that only the right shoulder injury was the subject of the dispute. On that basis, the Medical Assessor did not address the issues of causation and impairment of a left shoulder injury.
In his certificate issued on 15 April 2024, the Medical Assessor found that the referred injuries were caused by the accident. He assessed the cervical spine injury as giving rise to a whole person impairment (WPI) of 5%, the lumbar spine injury of 0% and the right shoulder injury of 4%, resulting in a combined total for permanent impairment of 9%.
WHAT INJURIES ARE BEING ASSESSED?
The claimant’s primary submission in the review application was that the Medical Assessor failed to assess the claimant’s left shoulder injury caused by the accident. In making the submission, the claimant conceded that the claimant did “not list the left shoulder as being referred for assessment” but it was evident from the claimant’s submissions and the supporting medical evidence submitted to the Medical Assessor that the claimant suffered an injury to the left shoulder as a result of the accident and accordingly, the Medical Assessor should have assessed that injury.
During the course of the review, the Panel issued directions to the parties to make submissions on whether the left shoulder injury should be assessed by the Panel.
While the insurer’s initial submission to the President’s delegate was that a left shoulder injury was not part of the medical dispute and should not be assessed, the insurer in its later response to the Panel, conceded that a left shoulder injury was part of the dispute.
Accordingly, the Panel has assessed injuries to the cervical spine, lumbar spine and both shoulders.
MATERIAL BEFORE THE PANEL
The claimant filed an indexed and paginated bundle of documents comprising 574 pages and the insurer filed an indexed and paginated bundle of documents comprising 472 pages.
The Panel considered all of the above materials.
SUMMARY OF THE EVIDENCE BEFORE THE PANEL
The evidence before the Panel may be summarised as follows.
Pre-accident medical records of Restwell St Medical Centre
The clinical records of the general medical practice, Restwell St Medical Centre (the GP records) showed that the claimant has had a long history of treatment for cervical spine, lumbar spine and bilateral shoulder conditions since 2002.
From 2017 to 2021, the claimant has had several consultations with Dr Assad Malek and physiotherapists at the medical practice regarding cervical, thoracic and bilateral shoulder pain.[10]
[10] Summary of pre-existing conditions at pages 467 to 470 of the insurer’s bundle which refers to the page references in the GP records.
An ultrasound of the right shoulder performed on 12 July 2017 showed there was mild tendinopathy of the supraspinatus tendon and subscapularis calcific tendinitis with enthesopathic changes at both attachment sites.[11]
[11] Page 230 of the claimant’s bundle.
A CT scan of the lumbar spine performed on 12 July 2017 showed at L3/L4 level, there was possible contact/impingement of the descending L4 nerve roots within the lateral recesses as well as possible contact of the exiting L3 nerve roots, mild narrowing of the exit neural canals bilaterally at the L4/L5 level, with possible low-grade contact of the exiting L4 nerve root and possible contact of the exiting L5 nerve roots more on the left.[12]
[12] Page 231 of the claimant’s bundle.
On 19 February 2022, the claimant attended for treatment with physiotherapist, Ms Rebecca Malek reporting neck and lumbar spine pain.[13]
[13] Page 135 of the claimant’s bundle.
The claimant’s statement
In his application for personal injury benefits (claim form) dated 19 April 2022, the claimant described his injuries in the following terms:
“my whole back, especially lower back, my neck and booth [sic] shoulders. Ive [sic] had a hernia operations [sic] previously and now they hurt.”[14]
[14] Page 42 of the insurer’s bundle.
Post-accident medical evidence
The GP records showed that three days after the accident, on 11 April 2022, the claimant consulted general practitioner Dr Assad Malek. The following entry was recorded:
“he was the driver of his own vehicle, on 09/04/22 he has [sic] his wife as a front seated passenger … at Thornleigh…, another vehicle lost control and collide [sic] with his vehicle at the rear. He was [sic] around 50km/hr he also collided with another vehicle in front of him which also collided into a [sic] another vehicle. Samir was in the third vehicle from the front.
he was fitted by [sic] the seat belt which reacted
The Ambulance and police were called to the scene, she [sic] was not taken to the hospital, but his wife was taken to the hospital
his vehicle was written off
he complained [sic] of dizzy attacks, headache, neck pain, bilateral shoulder pain, dorsal spine pain and lumbar spine pain, bilateral sciatical [sic] pain
he complains of pain over the above mentioned areas.
he works as [sic]
and has previous MVA back in 1980’s
however he has lumbar pain recently”[15]
[15] Pages 135-136 of the claimant’s bundle.
On examination, there was tenderness over the cervical spine, the dorsal spine, the lumbosacral spine and restriction of movements in the cervical spine. There were reduced movements in both shoulders in all directions. A diagnosis was made of injury to the cervical spine, dorsal spine, lumbar spine and both shoulders. The claimant was referred for physiotherapy.[16]
[16] Page 136 of the claimant’s bundle.
The GP records showed that the claimant attended multiple consultations with Dr Malek in April, May, June and July 2022, complaining of neck, lumbar spine and shoulder pain.[17] On 15 July 2022, he was referred by Dr Malek to orthopaedic surgeon, Dr Vijay Maniam for further management.
[17] Pages 136 -138 of the claimant’s bundle and pages 346-349 of the insurer’s bundle.
Radiological investigations
A bilateral shoulder ultrasound performed on 12 April 2022 made the following findings:
“There is tendinosis of the supraspinatus tendons bilaterally and the infraspinatus tendons on the left side. There is full thickness incomplete tear of the right subscapularis tendon with further partial thickness tears of the right supraspinatus and infraspinatus tendons and the left subscapularis tendon. The [long]-headed biceps tendon bilaterally outline normally. There is bilateral subacromial bursal thickening.”[18]
[18] Page 38 of the claimant’s bundle.
A CT scan of the cervical spine performed on 12 April 2022 found no evidence of recent fracture. There was developmental fusion of the C3 and C4; degenerative disease throughout the cervical spine, together with changes of DISH; advanced degenerative changes in the facet joints at C7/T1; mild degenerative changes in the remaining facet joints; posterior disc osteophyte complex at C2/3 and from C4/5 to C6/7 with spinal cord abutment at C5/6 and C6/7.[19]
[19] Page 39 of the claimant’s bundle.
Dr Maniam
In a report dated 28 July 2022, Dr Maniam noted a previous medical history of cervical spondylosis, thoracic spondylarthritis and a lumbar spine injury in 2014.
Dr Maniam was of the opinion that the accident caused an aggravation of pre-existing bilateral rotator cuff tendon tears in the shoulders, an aggravation of pre-existing degenerative disease in the cervical spine and an aggravation of pre-existing degenerative disease in the lumbar spine.[20]
[20] Page 43 of the claimant’s bundle.
Medicolegal evidence
The claimant was assessed by orthopaedic surgeon, Dr James Bodel at the request of the claimant’s lawyers on 24 May 2023. He provided a report on 1 June 2023.
Dr Bodel was of the opinion that as a result of the accident, the claimant sustained a musculoligamentous injury to the cervical spine, a rotator cuff tear in the right shoulder and musculoligamentous injury to the lower back.[21]
[21] Page 48 of the claimant’s bundle.
In assessing permanent impairment of the cervical spine Dr Bodel found that there was asymmetry of movement and guarding but no clinical sign of radiculopathy which attracted a DRE category II level of assessable impairment, giving rise to a whole person impairment (WPI) of 5%. With respect to the lumbar spine, he found that due to guarding and dysmetria, a DRE category ll level of assessable impairment was appropriate, giving rise to a WPI of 5%.[22]
[22] Page 51 of the claimant’s bundle.
Dr Bodel found that there was a notable restriction of shoulder movement in both shoulders which gave rise to a WPI of 8% for the right shoulder and a WPI of 6% for the left shoulder. Although Dr Bodel did not refer to a left shoulder injury as being caused by the accident, he included his assessment of a WPI of 6% for the left shoulder in his combined assessment of permanent impairment of 22%.[23]
[23] Page 52 of the claimant’s bundle.
The claimant was assessed by orthopaedic surgeon, Dr Stephen Rimmer at the request of the insurer on 15 August 2023. He provided a report on 23 August 2023.
Dr Rimmer was of the opinion that as a result of the accident, the claimant sustained injuries to the cervical spine, lumbar spine and both shoulders. In assessing permanent impairment of the cervical spine, he found that there were no significant clinical findings, no guarding and no documentable neurological impairment which attracted attracting a DRE category I level of assessable impairment, giving rise a WPI of 0%. With respect to the lumbar spine, he found on a history of intermittent or continuous guarding and on examination, non-uniform range of motion with no objective evidence of radiculopathy, a DRE category II level of assessable impairment was appropriate, giving rise to a WPI of 5%. With respect to the left shoulder and the right shoulder he found that each attracted a WPI of 0%.[24]
[24] Page 67 of the insurer’s bundle.
The claimant was assessed by rehabilitation physician, Professor Ian Cameron at the request of the insurer on 31 May 2024. In his report dated 8 June 2024, he expressed the opinion that the motor accident caused injuries to the cervical spine, lumbar spine and shoulders. He believed the injuries were aggravations of longstanding degenerative disease in the cervical spine, lumbar spine and shoulders.[25]
[25] Page 22 of the insurer’s bundle.
RE-EXAMINATION
The claimant was examined by Medical Assessor Moloney on behalf of the Panel on
2 December 2024 at the Commission’s medical suites. He was accompanied by his granddaughter. An Arabic interpreter, Afifi Taouk attended via a telephone link to facilitate communication between the claimant and the Medical Assessor.
Pre-accident history
At the time of the accident, the claimant was on a disability pension for 10 years for chronic back pain.
He had been treated for neck and shoulder pain prior to the accident by a physiotherapist but was vague on the details.
Personal details
He lives in a house with his wife, granddaughter and his invalid son.
History of motor accident
The claimant was the driver of his car on 9 April 2022, moving slowly in traffic when hit from the rear which caused his car to hit the car in front involving a total of four cars. He was wearing a seatbelt at the time and airbags were not deployed. He was able to get out of the car. Ambulance and police officers attended the scene of the accident. His wife was taken to hospital apparently with a neck injury.
At the time of the accident, the claimant’s son was driving in a car not far behind. He was able to drive the claimant home.
Post-accident history and treatment
The claimant said that he had increased neck and back pain immediately after the accident. He consulted his GP who referred him for physiotherapy and hydrotherapy. This treatment was beneficial for six months. He was also referred to an orthopaedic surgeon, Dr Vijay Maniam, who suggested spinal injections which the claimant declined. The claimant reported that Dr Maniam told him that surgery was not indicated.
Further accidents
The claimant said that he was involved with a minor motor accident in 2023 where again he was a hit by a vehicle from the rear. He said that no injuries resulted from this accident and he was able to drive home.
Current symptoms
Currently, the claimant has intermittent neck pain which radiates to his shoulders and occasional occipital headaches. He gets pain down his right arm with numbness in the right upper arm in a global distribution and in the right thumb, index and middle fingers. He gets an identical distribution in the left arm which is less intense.
There is persistent low back pain which radiates into the buttocks and pain down both legs.
He has bilateral loss of sensation in all of his toes.
He has diabetes which is stabilised by oral treatment. Since the accident he continues to drive and walk short distances and he does some of the gardening which he enjoys.
Current treatment
Present medication is Lyrica 75 mg at night, Panadol extra two tablets when needed, Voltaren 25 mg or Nurofen as needed, a daily low-dose aspirin and his diabetic and cholesterol medications.
He continued to have physiotherapy once a week and attends a pool for his own exercises twice per week.
Clinical examination
The claimant walked into the rooms with a normal gait and sat comfortably during the interview. His weight was 60kg and height 161cm without shoes. He states that he is right-handed.
Cervical spine
On inspection of the cervical spine there was a normal contour and on testing range of movement, flexion was 50% of expected range and extension 25%. Side bending and rotation were both 50% of expected range bilaterally. On palpation, there was tenderness over both trapezius muscles, but no guarding or spasm noted in the cervical musculature. There was tenderness over the lower cervical spine.
On neurological examination of the upper limbs, power was equal bilaterally with normal reflexes and there was decreased sensation on the palmar aspect of all the fingers and thumbs. No muscle wasting was apparent with the circumference of the upper arms 22cm bilaterally (10cm above the olecranon process) and in the upper forearms 21cm bilaterally (5 cm below the olecranon process).
Shoulders
On inspection of the shoulders, no muscle wasting was apparent and on passive movement no crepitus was detected. Impingement tests were positive. Active movements were measured using a goniometer with some inconsistency on repeat testing. The claimant stated that bilateral shoulder movement is limited due to pain around the anterior shoulder with no referral of pain from the cervical spine. The claimant stated that his shoulder range of movement was much better when he was having physiotherapy.
| Shoulder Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Flexion | 130°/120°/110° | 120°/110° |
| Extension | 50° | 50° |
| Adduction | 40° | 40° |
| Abduction | 100°/110°/120° | 110°/100° |
| Internal Rotation | 70° | 90° |
| External Rotation | 70° | 80° |
Lumbar spine
The claimant walked with a normal gait and was able to briefly stand on his heels and toes. Squatting was limited to 60% of expected range due to low back pain. On testing range of movement, flexion/extension was 75% of expected range as was side bending and rotation with no asymmetry. Straight leg raise when lying was 70° bilaterally with negative sciatic nerve root tension signs. On palpation no guarding or spasm was noted in lumbar musculature.
On neurological examination of the lower limbs, reflexes were equal bilaterally with normal power. No muscle wasting was apparent with the circumference of the lower thighs 35cm bilaterally (10cm above the superior patella pole) and at the maximum circumference of the calves 30cm bilaterally. On testing for sensation, there was a bilateral decrease in sensation over the dorsum of both feet including all the toes. This did not follow a dermatomal distribution.
CAUSATION AND REASONS
The claimant complained to his GP, Dr Malek of pain in the cervical spine, lumbar spine and both shoulders within days of the motor accident. Dr Maniam, Dr Bodel, Dr Rimmer and Professor Cameron were of the opinion that the claimant sustained injury to these regions in the accident. Based on the consistent evidence before the Panel and the re-examination conducted by Medical Assessor Moloney, the Panel is satisfied that the claimant sustained a soft tissue injury to his cervical and lumbar spine.
The claimant reported pain in both shoulders to his GP, Dr Malek on 11 April 2022 and in his claim form on 19 April 2022. The GP records showed that the claimant subsequently attended multiple consultations in April, May, June and July 2022, complaining of shoulder pain before being referred to an orthopaedic surgeon, Dr Vijay Maniam for further management.
A pre-accident ultrasound of the right shoulder did not record a rotator cuff tear which was apparent after the accident. On the balance of probabilities and considering the significant pre-existing problems with the shoulders, the Panel is satisfied that the motor accident caused an aggravation of pre-existing bilateral rotator cuff tendon tears in the shoulders.
The Panel accepts that the motor accident caused a soft tissue injury to his shoulders as a result of the impact of the collision.
PERMANENT IMPAIRMENT
The determination as to permanent impairment is made in accordance with the AMA 4 and Part 6 of The Motor Accident Guidelines.
Permanent impairment is defined in the AMA 4 (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. This is based on history, physical examination, review of documentation.”
Cervical and lumbar spine
On examination, Medical Assessor Moloney concluded that the global decrease in sensation in the fingers and toes was consistent with peripheral neuropathy, and this is more than likely related to the claimant’s long-standing diabetes. On examination, he found that this loss of sensation was not in a dermatomal pattern.
Medical Assessor Moloney found there was some dysmetria on testing range of movement of the cervical spine with no guarding and no signs of radiculopathy or non-verifiable radicular complaints in the upper limbs. He attributed a DRE Cervicothoracic Category II level of assessable impairment to this injury giving rise to a WPI of 5%. The Panel adopts the conclusions and findings of Medical Assessor Moloney.
With respect to the lumbar spine, Medical Assessor Moloney found there was no dysmetria on testing range of movement with no guarding or spasm noted on palpation and no signs of radiculopathy or non-verifiable radicular complaints in the lower limbs. He attributed a DRE Cervicothoracic Category I level of assessable impairment to this injury giving rise to a WPI of 0%. The Panel adopts the conclusions and findings of Medical Assessor Moloney.
Shoulders
In the GP records and the certificate of fitness issued on 11 April 2022, bilateral shoulder pain was recorded. The pre-accident GP records show that the claimant had significant problems with both shoulders before the accident. These problems were noted by
Dr Maniam, Dr Bodel, Dr Rimmer and Professor Cameron.
The Panel accepts that there were pre-existing bilateral shoulder conditions prior to the accident. Clause 6.31 of the Guidelines requires a deduction of an impairment in the same region that existed before the motor accident if there is objective evidence of a pre-existing symptomatic permanent impairment in that region at the time of the accident. However, the Panel is not satisfied that there is objective evidence of symptomatic permanent impairment to either shoulder at the time of the motor accident to warrant a deduction.
In June 2023, Dr Bodel reported significant limitation of both shoulders at the time of his examination. In August 2023, Dr Rimmer recorded a full range of active movement of both shoulders at the time of his examination. Professor Cameron found inconsistent movement in both shoulders at the time of his examination. The treating physiotherapist at Bankstown physiotherapy on 24 February 2023 reported that the claimant had persistent low back pain but improvement in the neck and shoulder region where he had no complaints when doing overhead activities. Flexion of the right shoulder was recorded as 155° and left 170° with reasonable internal and external rotation.[26]
[26] See page 105 of the insurer’s bundle.
The single Medical Assessor had determined that the right shoulder was injured in the accident but not the left and then used range of movement with the subtraction of the left shoulder range from the right to give a WPI of 4%.
The Medical Assessors of the Panel consider that there was almost certainly a decreased range of movement of both shoulders prior to the accident but there is no documentation giving an actual range of movement.
At the re-examination, Medical Assessor Moloney explained to the claimant that due to inconsistency of the shoulder measurements at the time of his re-examination and in comparison to findings from previous examinations, this would mean the measurements for range of motion could not be used, and other methods would need to be applied to determine impairment. The claimant stated that he understood this.
In making his findings, Medical Assessor Moloney considered that tests of consistency, such as using a goniometer to measure range of motion, are good but imperfect indicators of the injured person’s efforts. According to cl 6.40 of the Guidelines:
“the medical assessor must use the entire gamut of clinical skill and judgement in assessing whether or not the results of measurements or tests are plausible and relate to the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears not to verify that an impairment of a certain magnitude exists, the medical assessor should modify the impairment estimate accordingly, describe the modification and outline the reasons in the impairment evaluation report.”
Medical Assessor Moloney assessed the shoulders by way of an analogy, using table 18 of AMA 4 where mild acromioclavicular joint crepitation is 10% of the 15% joint impairment, which gives 1.5% impairment for each shoulder joint which was then rounded up to 2% WPI bilaterally. This analogy was chosen given symptoms varied producing intermittent and variable restrictions of movement. In this respect the Medical Assessors of the Panel also considered what, in their clinical opinion, having examined the claimant and considered all the medical evidence and imaging, would be an appropriate impairment percentage for the injuries sustained.
The Medical Assessors of the Panel therefore find that the WPI for the left shoulder is 2% and the WPI for the right shoulder is 2%.
FINDINGS
The Panel conducted a new assessment of all the matters with which the medical assessment is concerned.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: See Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45] and Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the examination findings of Medical Assessor Moloney in relation to the injuries to the cervical spine, lumbar spine, right shoulder and left shoulder. The Panel finds that the permanent impairment arising from these injuries caused by the motor accident is 9%.
CONCLUSION
Although the Panel’s assessment of permanent impairment also resulted in a finding of a WPI of 9%, the Panel has done so for different reasons and conclusions to those of Medical Assessor Home.
Accordingly, it is appropriate for the Panel to revoke the certificate of Medical Assessor Home and issue a replacement certificate. The new certificate of the Panel is attached at the commencement of these reasons.
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