Najjarin v QBE Insurance (Australia) Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Najjarin v QBE Insurance (Australia) Limited [2024] NSWPICMP 114
CLAIMANT:	Omar Najjarin
INSURER:	QBE Insurance Australia Ltd
REVIEW PANEL
MEMBER:	Elizabeth Medland
MEDICAL ASSESSOR:	Alan Home
MEDICAL ASSESSOR:	Sophia Lahz
DATE OF DECISION:	27 February 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of medical assessment; dispute as to level of whole person impairment (WPI) and treatment care; claimant injured in a motorbike accident on 7 April 2018 when vehicle turned in front of him; claimant thrown onto bonnet and then to ground; alleged injuries to back, head, left knee, right knee, right shoulder, and arm; also claim of chronic regional pain syndrome (CRPS); treatment requests for ultrasound guided cortisone injections and various radiological scans; Medical Assessor had found 5% WPI; Held – Review Panel revoked certificate with a finding of 10% WPI; CRPS not established in accordance with Guidelines; treatment found not reasonable and necessary in the circumstances.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Cameron dated 18 March 2023 and issues a new certificate determining that: 2. The following injuries caused by the motor accident give rise to a permanent impairment of 10% and IS NOT GREATER THAN 10%: · closed head injury – resolved; · lumbar spine – soft tissue injury; · right hip – soft tissue injury, and · right knee – soft tissue injury. 3. The following injuries were NOT caused by the motor accident: · head injury; · right shoulder injury; · brain – post concussion syndrome; · left knee – consequential soft tissue injury; · leg – complex regional pain syndrome, and · arm – complex regional pain syndrome. 4. The following treatment and care: · an ultrasound guided cortisone injection to the left knee; · an ultrasound guided cortisone injection to the right knee; · an x-ray to the left knee; · and x-ray to the right knee; · a CT scan to the left knee; · a CT scan to the right knee; · an MRI scan to the left knee, and · an MRI scan to the right knee. is NOT REASONABLE AND NECESSARY in the circumstances

STATEMENT OF REASONS

INTRODUCTION

Mr Omar Najjarin (the claimant) was involved in a motor accident on 7 April 2018. The claimant was riding his motorcycle with another vehicle turned in front of him causing a collision. The claimant was thrown onto the bonnet of the vehicle and then to the ground.
The claimant subsequently lodged a claim against QBE Insurance (Australia) Limited (the insurer), the compulsory third party insurer of the vehicle considered to be at fault. The insurer’s liability to statutory benefits and common law damages is governed by the Motor Accident Injuries Act 2017 (MAI Act).
A number of disputes have arisen between the parties, including whether a number of treatment requests are reasonable and necessary in the circumstances in addition to a dispute as to whether the claimant’s injuries exceed the 10% whole person impairment threshold.
These disputes were the subject of a certificate and reasons of Medical Assessor Cameron of the Personal Injury Commission (Commission) dated 3 March 2023. Medical Assessor Cameron certified the claimant’s injuries as not being greater 10% whole person impairment, and the various treatment requests were certified as not reasonable and necessary in the circumstances.
The claimant subsequently lodged an application for review of the findings of Medical Assessor Cameron.
The President referred the medical assessment to the Review Panel on the basis 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.
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).
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.[2]
[2] Clause 6.2 of the Guidelines.
The following treatment items that are the subject of dispute between the parties are:
(a)    an ultrasound guided cortisone injection to the left knee;
(b)    an ultrasound guided cortisone injection to the right knee;
(c)    an x-ray to the left knee;
(d)    and x-ray to the right knee;
(e)    a CT scan to the left knee;
(f)    a CT scan to the right knee;
(g)    an MRI scan to the left knee, and
(h)    an MRI scan to the right knee.
Section 3.24 of the MAI Act provides:
“1) An injured person is entitled to statutory benefits or the following expenses (treatment and care expenses) incurred in connection with providing treatment and care for the injured person –
a.the reasonable cost of treatment and care,
b.reasonable and necessary travel and accommodation expenses incurred by the injured person in order to obtain treatment and care for which statutory benefits are payable,
c.if the injured person is under the age of 18 years or otherwise requires assistance for travel for treatment and care, reasonable and necessary travel and accommodation expenses incurred by a parent or other carer of the injured person in order to accompany the injured person while treatment and care for which statutory benefits are payable is being provided.
2) No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.”
The provisions of the Civil Liability Act 2020 (the CL Act) apply to the MAI Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act.[3] In Raina v CIC Allianz Insurance Ltd[4] Campbell J stated:
“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 s3B92)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[3] See s3B(2) of the CL Act.
[4] [2021] NSWSC 13 (Raina) at [65].
Further, cls 6.5 to 6.7 of the Guidelines refer to causation of both injury and whether the degree of permanent impairment is caused by injury.
Clause 6.7 of the Guidelines provides:
“There is no simple common law 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.”

THE REVIEW

Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl14F(2) of the Personal Injury Commission Act 2020 (the PIC Act), the Review Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission.
Part 5 of the PIC Act enable 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.[5]
[5] Section 41(2) of the PIC Act.
Rules 127 and 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[6]
[6] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.[7]
[7] Section 7.26(6) of the MAI Act.
Interim directions were issued by the Review Panel requiring the parties to lodge bundles of all documents relied upon. Those bundles were received in compliance with the direction.
The Review Panel convened via teleconference on 16 October 2023. The Review Panel considered that a re-examination of the claimant was required. The claimant was examined by Medical Assessor Home and Medical Assessor Lahz at the rooms of Medical Assessor Alan Home in Pitt Street, Sydney on 23 November 2023.

ASSESSMENT UNDER REVIEW

The Medical Assessor found that the claimant sustained multiple soft tissues injuries as a result of the motor accident. He found that a traumatic brain injury was not sustained.
It was found that the claimant suffers from severe ongoing psychological distress which was partly manifest in regard to concerns about his body and symptoms he experiences. It was concluded by the Medical Assessor that this contributes to the claimant’s chronic pain and ongoing search for effective treatment.
The Medical Assessor found that the claimant suffered soft tissue injuries caused by the motor accident to the following body parts:
(a)    head;
(b)    lumbar spine;
(c)    right hip;
(d)    right knee, and
(e)    right shoulder.
He found that the following injuries were not caused by the motor accident:
(a)    left knee – consequential soft tissue injury;
(b)    right leg – chronic regional pain syndrome, and
(c)    right arm – chronic regional pain syndrome.
In respect of whole person impairment, the Medical Assessor found a 0% whole person impairment in respect of each body part, other than the lumbar spine where a 5% whole person impairment was found owing to a DRE Lumbosacral Category II. In this regard, the Medical Assessor found on examination, muscle spasm, muscle guarding and dysmetria.

MATERIAL BEFORE THE REVIEW PANEL

The Review Panel has considered all the material included in the bundles submitted by the parties in accordance with the interim directions. Whilst some material is summarised below, it should not be taken that any additional material not mentioned was not considered. All material was considered by the Review Panel.

Treating evidence

From the scene of the accident the claimant was transported to Royal North Shore Hospital (RNSH) via ambulance. The NSW Ambulance report details the claimant lying at the scene of the accident, and was alert and fully orientated. A Glasgow Coma Score of 15 is noted. The claimant was moving his head and neck on arrival. Nil evidence of a head injury was noted, however, pain in the left jaw was mentioned, however, noted as “not new” for the claimant. Dull abdominal pain noted, as well as a dull ache to the right hip on palpation.
The claimant complained of pain to the right shoulder immediately after the accident which has “since resolved”. Pain and bruising was noted to the right knee and pain to the right foot. Equal upper and lower limb strength with full range of motion noted to both arms with observations within normal limits. Pain was rated overall as 1/10 by the claimant and he declined analgesia.
The RNSH discharge referral of 8 April 2018 notes that no injuries were identified. The claimant is reported to have denied a head injury/strike and denied neck pain. He denied other injuries. A normal pelvic X-ray was noted.
The claimant attended upon Narellan Town Medical Centre after the accident on 12 April 2018. No significant abnormalities were noted. The claimant insisted on having an MRI scan of the lumbar spine and “keen to pay for it”.
On 26 April 2018 the claimant attended the medical centre again and a history is recorded of the claimant’s pelvis hitting the handle bar in the accident, also hitting his right knee. He reported possible loss of consciousness. The claimant was complaining of lower back pain.
By 2 May 2018 the claimant’s knee swelling was noted as “coming down”. Lower back complaints are made including a sharp stabbing pain with movement and paraesthesia down the right.
Similar complaints are made in the ensuing consultations. By 6 June 2018 the right knee and left lower back pain getting better. However, subsequent complaints are made as well as ongoing complaints of headache.
The claimant complained to general practitioner (GP), Dr Dharwan, of William Street Medical Centre on 10 March 2011 of off and on right knee pain which was getting worse.
Complaints relating to the right knee are noted pre accident, including complaints to Dr Tuan Tran of Ingleburn Medical Centre. Pain noted for a few days on 5 June 2017. Radiological imaging including an MRI was undertaken. Dr Tran recommended a referral to an orthopaedic surgeon on 5 September 2017. On 1 December 2017 noted the claimant to have suffered a left knee sprain with painful swelling and pain and difficulty with walking.
On 19 March 2018 Dr Bose Ingleburn Medical Centre noted multiple issues, including knee pain with difficulty walking. It is noted the claimant was awaiting surgery.
Dr Bose first saw the claimant after the motor accident on 21 May 2018. The claimant was noted to be taking Targin for pain, with examination showing hips/knee tenderness, and the claimant was limping when walking.
On 4 June 2018 the claimant was noted to have blurred vision since the accident, with complaints of headache. He requested Targin, noting that he takes it for knee pain. He was awaiting guided injection from specialist, which was noted to have occurred when next seen on 16 July 2018.
A report from South West Vision Institute dated 19 July 2018 details an essentially normal examination. A history of the motor accident is noted with a reported concussion.
The claimant received exercise physiology by a Brendan Bond. On 10 January 2019 the claimant was noted to be in a lot of pain. He had limited movement with knee and back/hips. Extreme pain was noted with knee flexion. Hip flexion was limited and painful. In a report to Dr Le of 8 February 2019, the claimant was noted to use a crutch on right side due to inability to weight bear through the right leg. Regular consultations were recommended.
Dr Le also referred the claimant to rehabilitation medicine physician, Dr Nguyen. In a report dated 21 February 2019. Pain was reported mainly in the lower lumbar and sacroiliac regions which is worse on the right side. The claimant reported pain as 10/10 and constant with pain being mainly in the lower back and sacroiliac regions.
Dr Nguyen was concerned about the claimant’s poor posture for functional tasks. He recommended the claimant be assessed by an independent musculoskeletal and pain physiotherapist. He considered the claimant’s psychological symptoms were contributing significantly to the pain symptoms.
In a review report dated 29 April 2019, Dr Nguyen expressed concern the claimant’s presentation was suggestive of CRPS.
Various reports from physiotherapist, Gaven Williams are noted. The claimant had ongoing difficulties with right leg and lower back pain.
The claimant was referred to orthopaedic surgeon, Dr Nouh by Dr Le of Narellan Town Medical Centre. He provided a report dated 30 May 2018. Dr Nouh noted the motor accident and documented the claimant’s history of ongoing right knee pain, lumbar spine pain, headaches and migraines.
Dr Nouh observed the claimant to have a very irritable knee and was reluctant to bend the knee past 30 degrees. Tenderness was noted. MRI scan was noted as normal. Dr Nouh opined that the pain may be due to fat pad impingement as well as iliotibial friction. A local anaesthetic and cortisone injection was recommended.
This was undertaken and in a report dated 23 October 2018 it was noted that the injection had not resolved the claimant’s symptoms. The doctor opined that the presentation was more in keeping with a diagnosis of Chronic Regional Pain Syndrome (CRPS).
The claimant was also referred to neurologist, Dr Beran, by Dr Le of Narellan Town Medical Centre. In a report dated 13 November 2018, Dr Beran describes a “high speed motor bike accident”. Various complaints are noted including pain to the right knee, the back, headaches, balance disturbance eand vertigo along with various psychological symptoms. Dr Beran expressed dislike of the claimant’s medication regime with included Oxycodone, Nurofen and Lyrica.
Dr Beran described him being “very dubious” and noted the claimant coming in on crutches and not getting out of the chair without assistance. The Doctor stated “...I could not avoid the impression that there was supratentorial overlay to everything that I was seeing.”
The doctor described the claimant as not cooperative and difficult to examine with things taking a long time which meant that a full examination did not occur. The doctor described being “worried” that the claimant’s presentation was “non-organic”.
The claimant failed to attend a number of subsequent appointments with Dr Beran.
The claimant was referred to neurosurgeon and spinal surgeon, Dr Darwish. In a report dated 9 July 2018 noted the reason for referral as the claimant’s headaches. The MRI scan of the brain of 21 June 2018 and it was explained to the claimant that the abnormalities were long standing congenital. He considered the claimant’s headaches and blurred vision as being in keeping with post-concussion syndrome from the injury. An eye specialist was recommended.
The claimant was again seen by Dr Darwish on 22 October 2018. The claimant was noted to be complaining of ongoing lower back pain and pain in the right knee. The MRI scan of the lumbosacral spine of 18 September 2018 was noted showing disc bulge at L5/1 level but no obvious nerve root or equine compression. The doctor organised a right L5/S1 epidural cortisone injection. Surgery to the spine was discussed with the claimant on 28 May 2020 and was not recommended.
The claimant was also referred to Dr Davies, neurosurgeon and pain medicine physician. In a report dated 29 November 2018 the doctor took a history of the motor accident and the claimant reported a period of unconsciousness and complained of multiple problems since he accident, including back pain, pain in the right leg and right knee, pain in the head, blurred vision and cognitive problems.
The claimant complained of current pain in the back, right buttock, right lower limb and headaches. The pain was described as severe at times and worse with sitting, standing or walking. He also claimed to be unable to bend his knee due to pain and reported sensitivity over the right thigh. He was taking Targin twice daily and Lyrica twice daily.
On examination, the claimant was noted to present in an “extremely disabled manner” and examination was extremely restricted. The doctor noted hypersensitivity in the right lower limb to pin prick testing, and a report of extreme sensitivity to light touch over the back and right lower limb. The doctor reported no swelling, sweating difference, colour change or temperature difference between the two limbs.
Dr Davies opined that it was unlikely that any intervention would provide useful benefit. It was recommended that treatment revolve around improving the claimant’s psychological state. The doctor increased the dose of Lyrica and introduced 10mg of Amitriptyline to improve sleep quality. ON review on 7 January 2019, the doctor increased the dosages of Lyrica and Amitriptyline.
On review on 27 August 2019 the claimant was noted to be undergoing physical therapy including physiotherapy. It was recommended that this continue along with psychological therapy. By 3 November 2020 the doctor had raised the possibility of a Ketamine infusion to see if that would reduce the claimant’s pain and opioid requirements.

Various certificates of capacity are included in the material. The diagnosis of the accident related injuries are consistently reported as: right knee pain, lower back pain, headaches, visual disturbance and psychological injury. CRPS is noted in later certificates.

Qualified reports

The insurer has obtained a number of reports from orthopaedic surgeon, Dr Bentivoglio. In a report dated 21 December 2020 the doctor noted complaints to the right knee and back. Dr Bentivoglio noted that the claimant would not allow an appropriate examination, and the bit of examination that did occur there were signs of inconsistent presentation. The doctor later describes the presentation as “bizarre”. He diagnosed a minor soft tissue injury to the right knee. In relation to the back it was opined that there was possibly some degree of minor discal damage at the L5/S1 level. He did not consider that the ongoing complaints were due to the motor accident. However, he assessed a 5% whole person impairment from a DRE Category II of the lumbar spine.
The claimant relies on the opinion of occupational physician, Dr Low. In a report dated 17 February 2021. The claimant complained of jaw pain, headaches and symptoms in the right knee and lower back. He reported pain levels as 10/10. Dr Low considered the claimant’s prognosis as poor. The main diagnosis was CRPS, which requires assessment by a pain physician and for provision of whole person impairment rating.

SUBMISSIONS

Claimant’s original submissions to the Medical Assessor (undated)

The submissions relate to the treatment dispute. The treatment history is set out and it is submitted the claimant has exhausted all means of conservative treatment, however, continues to suffer from significant pain. Accordingly, the requested treatment is reasonable and necessary and causally related to the motor accident.

Claimant’s submissions dated 17 April 2023

These submissions were prepared in support of the application, and are addressed to the President’s delegate. It is submitted that the Medical Assessment is incorrect in a material respect on the basis that: there was a failure to comply with the Guidelines when assessing upper extremities; failure to consider all evidence; failure to disclose a sufficient and adequate path of reasoning.
The submissions refer to page 5 of the medical assessment reasons where the Medical Assessor noted inconsistent movements of multiple joints of the right lower extremity.
It is alleged that the Medical Assessor failed to apply cl 6.41 of the Guidelines where it is a requirement that inconsistencies are raised with the injured person, and given the opportunity to respond. Further, it is alleged that the Medical Assessor failed to describe how the movements were inconsistent.
The submissions assert that there is no reference to a physical assessment actually being undertaken of the claimant’s right knee nor any measured ranges of motion.
It is submitted that the Medical Assessor did not sufficiently explain or justify why a discretionary assessment of impairment was made rather than the preferred method of measurement of the range of motion.
It is submitted that the Medical Assessor failed to consider all relevant information. For instance, the Medical Assessor referred to an MRI of the Lumbar spine dated 18 September 2018, however, did not take into consideration a subsequent MRI of 19 March 2020.
It is also submitted that the Medical Assessor’s conclusion that the clinical information did not show major significant pathological changes present at the right hip, is not consistent with the material, noting an x-ray and MRI report of the pelvis of the right hip dated 18 October 2022.
The claimant submits that if the alleged errors were rectified the assessment of whole person impairment would exceed 10% and the treatment recommended by the claimant’s treatment providers would be found to be reasonable and necessary.

Insurer’s submissions dated 8 July 2022

The insurer submits the claimant presents as inconsistent, with reference to various reports of qualified doctors, which necessitates careful consideration when addressing causation.
It is submitted the claimant’s physical injuries do not attract a whole person impairment greater than 10%, and the opinion of Dr Bentivoglio is relied upon in this regard.
Submissions are made in respect of the claimant’s alleged psychological injury. It is noted that this determination relates to the claimant’s alleged psychical injuries.

Insurer’s submissions dated 19 May 2023

It is refuted that the Medical Assessor failed to address the inconsistencies observed throughout the examination with the claimant. The insurer notes the Medical Assessor’s comments at page 5 of his reasons where the claimant’s assertion is set out that pain in the joints prevented movement.
The insurer submits the Medical Assessor properly applied cl 6.40 and 6.41 of the Guidelines when assessing the claimant’s upper extremity impairment. It is asserted that the claimant’s position is simply that the Medical Assessor’s findings does not accord with how the claimant views his case.
In respect of the claimant’s position that the Medical Assessor failed to consider all evidence, it is submitted that the Medical Assessor was not obliged to refer to each and every specified record or entry.[8]
[8] Golijan v Motor Accidents Authority of New South Wales [2012] NSWSC 1106.

RE-EXAMINATION

The claimant was accompanied to the assessment by his sister, Nasrin, who assisted him with dressing and undressing.
The history was obtained directly from the claimant.

Past medical and vocational history

The claimant confirmed a past history of right knee pain for which he had attended his general practitioner. He does not recall loss of work time but was required to undertake supervisory duties when his knee was painful.
He otherwise continued work as a concreter prior to the subject accident. He recalls that he did undergo MRI scans of the right knee. He did not undergo corticosteroid injection or other invasive treatment. His knee remained at least mildly symptomatic prior to the subject accident.
He has not undertaken any form of work since the subject accident.

Details of the motor accident

The claimant states that he was the helmeted rider of a motorcycle on 7 April 2018. He recalls that a car travelling in the opposite direction made a right hand turn into his path, such that he T-boned the passenger side of the other car. He recalls that he was thrown over the bonnet to the road on the other side.
He does recall that he was attended by passers-by. In particular, he recalls that an off duty nurse provided him with assistance. He recalls his discussion with the nurse. Subsequently, an ambulance was called. He was transferred to the RNSH where he was assessed overnight.

History of symptoms and treatment following the accident

At the hospital, he underwent chest and pelvic X-rays. No fractures were found. He recalls that he later attended his GP at Narellan Medical Centre.
He was referred for CT scans of the lumbosacral spine, performed on 11 April 2018 and MRI scans of the right knee, performed on 13 April 2018.
He recalls that following the accident, he experienced an increase in right knee pain, the onset of lower back pain, pain about his right hip and headaches.
Subsequently, he was referred for an ultrasound guided corticosteroid injection into the right knee, performed on 22 June 2018.
He recalls one or two weeks of symptom improvement before the pain returned to the previous level. He underwent second MRI scans of the right knee, performed on 21 August 2018.
In relation to his back condition, he was referred by his GP, Dr Le, for MRI scans of lumbar spine performed on 18 September 2018. These demonstrated mild central disc protrusion at L5/S1. There were repeat MRI scans performed in March 2020.
He recalls an early period of physical therapy and an extensive period of supervised exercise under the supervision of an exercise physiologist.
In March 2020, he was sent for further MRI scans of the lumbar spine and a trial of right L5/S1 epidural injection performed on 12 June 2020. He recalls symptom benefit for several weeks after the spinal injection. The pain then returned to the previous level.
In November 2020, he underwent bone scan imaging of the spine and extremities.
On 22 October 2021, he underwent a further MRI scan, which demonstrated progression of the L5/S1 disc changes.
He states that due to persisting right hip pain, he underwent MRI scans of the pelvis and right hip, performed on 18 October 2022. These demonstrated a labral tear. There was a discussion about corticosteroid injection, but this was not subsequently funded.
He also states that he has attended a pain specialist who has held discussions about possible spinal stimulation and a ketamine infusion. At this stage, there are no immediate plans for invasive treatment.
He continues to attend a clinical psychologist approximately once fortnightly. He has also attended a psychiatrist.
His current medication is as follows:
·        Targin 25mg twice daily;
·        Gabapentin 300mg thrice daily;
·        Fluoxetine 40mg twice daily, and
·        Prazosin 3.5mg daily.

Current symptoms

Mr Najjarin states that he experiences virtually a constant headache, of average intensity 8/10, felt globally about the head, sometimes associated with symptoms of fogginess of thought, nausea and photophobia.
At the right shoulder, he experiences symptoms of intermittent pain, felt in the axilla. He volunteers his own view that this may relate to his use of right axillary crutch.
In the lower back, he describes constant pain, of average intensity between 8-10/10 using a visual analogue scale (VAS). The pain is felt across the lower back but a little more prominent on the left. There is occasional pain with coughing and sneezing. He describes intermittent pain shooting into both lower libs from the hips to the toes.
He describes intermittent symptoms of burning pain and hot fluid running down his legs. There is sometimes a sensation of ants crawling. He describes intermittent global numbness in both legs. This can occur on either side but is more frequent on the right. He says that his right leg is very sensitive. He does not like anybody touching it.
At the right hip, he describes anterior pain of intensity 7/10. The pain is intermittent but present several hours a day. He describes the pain as a sharp or stabbing pain. There is sometimes pain radiating to the anterior right thigh.
At the right knee, he reports intermittent pain, present most of the day at average intensity
7-9/10. He says that over the past few years, he has been unable to bend his knee at all. There is sometimes local swelling in the knee.
At the left knee, he reports intermittent pain of intensity of 7/10 and only associated with walking. There is no left knee pain at rest. There is no swelling or giving way.
He is right hand dominant.
He describes a sitting tolerance of up to two hours. He does not drive a motor vehicle at all. His walking tolerance is limited. He says that he uses an axillary crutch under his right arm as he cannot take much weight through his right leg.
He does not crouch, kneel or perform stair-climbing. He then said that he can climb stairs asymmetrically using a handrail held in his left hand.
His sleep pattern is disturbed.
He obtains assistance with dressing from his ex-partner who is now his carer.

SOCIAL HISTORY

He lives with his ex-partner whom he reported is his carer.
He does not engage in any domestic chores, cooking, laundry tasks or cleaning. He does not engage in shopping.
He has not resumed any of his previous hobbies of motorcycle riding, fishing and learning to play golf.

PHYSICAL EXAMINATION

Mr Najjarin is a 37 year old standing at 185cm and weighing 115kg.
The examinee stood on several occasions during the history but obtained assistance from his sister when doing so. He declared an inability to take much weight through his right leg and used an axillary crutch to stand from a seated position and whilst standing. He leant heavily on the crutch whilst walking. He walked with a stiff legged gait.
He declared that he was anxious about the Review Panel Medical Assessors touching his right lower limb and asked for warning when doing so. His limb was touched gently at all times, however, it was very difficult to undertake the formal examination due to pain behaviour.
Prior to assessment of active range of motion of the injured body parts, the claimant was advised to make his best effort with the requested movements despite pain, and that if he were unable (and the movements variable), it would be difficult to use the observed range of motion to determine permanent whole person impairment.
Throughout the clinical examination, he provided the Review Panel examiners with a running commentary of prevailing symptoms.

Cervical spine

Examination of the cervical spine reveals normal spinal curvature. There was a fair range of active motion in all planes. There was no evident dysmetria, muscle guarding or spasm.

Shoulders

At the right shoulder, there is no abnormality to inspection. There is no differential muscle wasting. The examiners attempted to test active motion. The examinee was advised to attempt maximum movement at all times but to advise if the movement caused undue pain.
The measurements taken on separate occasions with a goniometer were as follows:
·        flexion 95°, 130°, 120°;
·        extension 50°, 30°, 50°;
·        abduction 90°, 60°, 70°;
·        adduction 40°;
·        external rotation was freely performed to 90°, and
·        internal rotation also freely performed to 90°.
At the left shoulder, active motion was measured as follows:
·        flexion 160°;
·        extension 60°;
·        abduction 160°;
·        adduction 50°;
·        external rotation 90°, and
·        internal rotation 90°.
There was no localised tenderness about the shoulder.

Lumbosacral spine

Examination of the lumbosacral spine was extremely difficult due to pain behaviour. The examinee demonstrated normal capacity to sit upright with legs extended but at other times, took the weight through his arms.
He demonstrated thoracic rotation symmetrically to 30° on each side. The Review Panel could not adequately test active motion in other planes due to prominent pain behaviour.
The Review Panel found that there was evidence of muscle guarding spasm in the left lower lumbar musculature when observed in a seated position.
The Review Panel did not find evidence of abnormal neurological findings in the left lower extremity. The neurological examination in the right lower extremity was difficult to interpret due to pain behaviour, particularly his marked apprehension regarding any palpation of the right lower extremity.
The examinee was intolerant of testing of lower limbs reflexes and could not tolerate testing of sensibility. However, to direct measurement, there was no wasting of the lower extremities.
The circumference of the thighs (52cm) 10cm above the superior patellar border and calves at maximum mid girth (41.5cm) were symmetrical. He could barely tolerate the pressure of the tape measure.
Similarly, it was not possible to formally test for signs of increased dural tension in the right lower extremity due to pain behaviour. However, given that he was able to sit with each leg in extension on the couch, the Review Panel Medical Assessors found no evidence of positive neural tension in either lower limb.
The examinee reported global hypersensitivity and extreme allodynia to light touch throughout the right lower extremity.

Right hip

It was not possible for the Review Panel to test active motion at the right hip due to prominent pain behaviour. The examinee declined any active motion of the right hip while lying supine. There was evident flexion to at least 60° in a seated position and normal extension of the hip was noted whilst walking.
The range of active hip motion was not consistent with the known pathology (labral tear).
The Review Panel found that there was internal inconsistency in the range of active hip motion between the Review Panel’s clinical findings and those available through the medical records and indeed, internally within the assessment itself of the Panel examiners.
The Review Panel brought this inconsistency to the injured person’s attention. He stated that the variability in clinical findings was due to prevailing pain levels.
The Review Panel gave the injured person opportunity to respond to the inconsistent observation and retested his movement, but there was no change in the clinical findings.

Right knee

The claimant did not demonstrate active motion at the knee when first tested. The knee was held rigidly at 0 degrees flexion.
With repeated encouragement, he demonstrated active flexion of 30 degrees. However, the range was later (with some distraction whilst he was seated) measured at 60 degrees flexion.
The Review Panel found that there was internal inconsistency in the range of active knee motion between the Review Panel’s clinical findings and those available through the medical records and indeed, internally within the assessment itself.
The Review Panel brought this inconsistency to the injured person’s attention which again he attributed to prevailing pain levels.
The Review Panel gave the injured person opportunity to respond to the inconsistent observation and retested his movement, but there was no change in the clinical findings.

Left knee

There is no abnormality on examination of the left knee. There is no joint effusion. There is a normal range of motion, measured by goniometer at 0 degrees extension to 130 degrees flexion. There is no abnormal joint crepitus. There is no pain with provocation tests including Clarke’s manoeuvre and McMurray’s manoeuvre.

CRPS

The Review Panel carefully sought signs of complex regional pain syndrome. There were no clinical signs of discolouration of the skin by way of mottling or cyanotic appearance. The skin temperature was symmetrical. There was no oedema. The skin was not evidently dry or overly moist and the skin test texture was normal. There was no soft tissue atrophy in the upper or lower extremities. Joint stiffness could not be adequately tested. There were no nail changes and no hair growth changes with the hair entirely symmetrical between the upper extremities and in the lower extremities.
The clinical findings of Mr Najjarin do not satisfy the diagnostic criteria for CRPS set out in the Guidelines.

DIAGNOSIS AND CAUSATION

The Review Panel found that the claimant had sustained the following injuries in the motor accident of 7 April 2018.

Head injury

The Review Panel found that the claimant did not sustain a traumatic brain injury because there were no medically verified indicators of brain injury including disturbance in the level of consciousness (PTA, GCS) or brain imaging abnormalities outlined in the post-accident medical record.
Furthermore, the claimant had a clear recollection of the accident itself, the mechanism of the accident and the subsequent conversations with a passer-by, immediately post-accident. On that basis, he did not have a significant period of pre or post traumatic amnesia.

Lumbar spine

The Review Panel is satisfied that the claimant suffered a soft tissue injury to the lumbar spine. The subsequent diagnostic imaging has demonstrated underlying degenerative disc pathology at L5/S1.

Right hip

The Review Panel found that the claimant has suffered a soft tissue injury to the right hip with early documentation of right hip pain. Subsequent MRI scans have demonstrated a minor capsular lesion, that may well be traumatic.

Right knee

At the right knee, the Review Panel found that the claimant had sustained a soft tissue injury, aggravating a pre-existing symptomatic state. The post-accident MRI scans do not show additional pathology beyond that which is set out in the pre-accident MRI scans. That is minor degeneration within the posterior horn of the medial meniscus. The diagnosis is an aggravation of underlying degenerative change.

Left knee

The Review Panel notes the claimant reports that he subsequently developed left knee pain. He attributes this to asymmetrical gait in the circumstance of relying heavily upon a crutch. The Review Panel finds that this is likely on the balance of probabilities.
At examination of the left knee, the Review Panel did not find any objective abnormality of a soft tissue injury or other pathology.
In this respect, there was no finding of left knee joint effusion, loss of motion, abnormal crepitus, joint line tenderness, instability or pain with provocation tests including Clarke’s manoeuvre and McMurray’s manoeuvre.

Right shoulder

In relation to the right shoulder condition, the Review Panel does not find that the claimant suffered a material injury to the right shoulder. The claimant does not recall early pain in the right shoulder. The claimant did not document a right shoulder injury in his claim form, completed on 4 June 2018, two months post-accident.
The claim form is a legal document and the Review Panel find that it is unusual that a right shoulder injury was not documented by the claimant himself. The ambulance report refers to immediate right shoulder pain which resolved at the scene and furthermore, there is no documentation of ongoing right shoulder pain in the extensive medical treating records.
The claimant reports that he currently experiences local axillary (armpit) pain related to his use of an axillary crutch.
The Review Panel did not find any evidence of imaging of the right shoulder since the accident.
At this assessment, there are no clinical signs of right shoulder impingement. There is a full range of active shoulder rotation noted in a position of 90° abduction, which is inconsistent with subacromial pathology or impingement.
The Review Panel finds to the extent that the claimant variably restricts shoulder elevation due to axillary pain, that this does not arise from a shoulder injury caused by the accident.
The Review Panel finds that the claimant did not suffer from a right shoulder injury arising from the subject accident.
The Review Panel made no clinical findings to satisfy the diagnosis of lower limb complex regional pain syndrome beyond the claimant’s subjective widespread allodynia throughout the right lower extremity.
In the upper limb, the Review Panel found no clinical features to indicate an upper limb complex regional pain syndrome.
There is an absence of any other clinical signs of complex regional pain syndrome required to satisfy the criteria is set out in the Guidelines.
List of injuries caused by the accident:
·        closed head injury – resolved;
·        lumbar spine – soft tissue injury;
·        right hip – soft tissue injury, and
·        right knee – soft tissue injury.
The following listed injuries were not caused by the accident:
·        head injury;
·        right shoulder injury;
·        brain – post concussion syndrome;
·        left knee – consequential soft tissue injury;
·        leg – complex regional pain syndrome, and
·        arm – complex regional pain syndrome.

IMPAIRMENT ASSESSMENT

The Review Panel has assessed permanent impairment using the Guidelines and AMAb4.

Degree of permanent impairment

Permanent impairment is defined in the AMA 4 ( 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.”
The claimant’s condition satisfies the criteria of permanency. It is now five years since his accident. There are no imminent plans for invasive treatment that would change his impairment rating.

Lumbar spine

The clinical presentation is consistent with a DRE Lumbosacral Category 2 impairment rating due to the presence of muscle guarding and spasm.
There are complaints of low back pain. There is muscle guarding and spasm evident in the lumbar region.
The presentation does not meet the criteria for radiculopathy set out in cl 6.138 of the Guidelines, which require two of the following:
·        loss or asymmetry of reflexes (see the definitions of clinical findings in Table 8 of the Guidelines);  
·        positive sciatic nerve root tension signs (see the definitions of clinical findings  in Table 8 of the Guidelines);  
·        muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 8 of the Guidelines);  
·        muscle weakness which is anatomically localised to an appropriate spinal  nerve root distribution, and
·        reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
None were present at this assessment.
A 5% whole person impairment rating arises in accordance with the methodology set out in AMA 4, Chapter 3, Page 102.

Right lower extremity

The Review Panel considered impairment ratings for the right lower extremity using methods described in the Guidelines and AMA 4. In this regard:
·        there was no limb length discrepancy;
·        the impairment could not be assessed using gait derangement as there is no underlying osteoarthrosis of the right knee or hip;
·        there is no muscle atrophy to direct measurement;
·        muscle strength could not be reliably tested due to pain;
·        there is no evidence of arthritis that would satisfy an impairment rating using Table 62, AMA 4, page 83;
·        the patient has not required amputation;
·        no diagnosis based estimates are satisfied;
·        there is no skin loss;
·        there is no evidence of peripheral nerve injury;
·        the features of complex regional pain syndrome as set out in the Guidelines are not present, and
·        there is no vascular disorder.

Right hip

The Review Panel could not use range of motion to assess hip impairment due to inconsistency of motion secondary to pain.
The Review Panel notes the directions in the Guidelines regarding consistency, including cls 6.40 and 6.41, which provide as follows:
“6.40. 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.
6.41 Where there are inconsistencies between the medical assessor's clinical findings and information obtained through medical records and/or observations of non-clinical activities, the inconsistencies must be brought to the injured person's attention; for example, inconsistency demonstrated between range of shoulder motion when undressing and range of active shoulder movement during the physical examination. The injured person must have an opportunity to confirm the history and/or respond to the inconsistent observations to ensure accuracy and procedural fairness.”
The claimant could also not provide a satisfactory explanation for the variability in observed restriction, such that the Medical Assessors conclude that the claimant was voluntarily self-limiting range of hip motion due to pain. The range of motion observed was inconsistent with the underlying pathology. A capsular tear might limit joint motion at the extremes although would not give rise to the very significant the global restriction of hip motion observed during Review Panel examination. The Review Panel has determined the clinical findings at the hip of severe pain/tenderness disproportionate to the demonstrated hip pathology (labral tearing) on MRI scan.
The Review Panel has determined that it is reasonable to assess the hip injury by analogy.
The Review Panel have used the Table 64 impairment estimates for certain lower extremity impairment to determine an analogous condition.
The Review Panel have assessed impairment based upon a case of chronic trochanteric bursitis with abnormal gait, which would attract a 3% whole person impairment rating.

Right knee

The Review Panel cannot rely upon range of motion to determine impairment of the right knee as the range of motion demonstrated is not internally consistent nor consistent with the findings of other practitioners. Again, the claimant self-limited knee movement due to prevailing pain levels and such gross restriction with inability to bend the knee, is not commensurate with the demonstrated (iliotibial band friction) pathology within the knee joint. There is no major pathology of the knee joint limiting the claimant’s range of motion. The Review Panel’s clinical examination indicates that the claimant is self-limiting right knee movement due to fear avoidance of pain.
The Review Panel having accepted a mild soft tissue injury to the right knee from the accident, decided to determine knee whole person impairment by analogy, and has found right knee whole person impairment akin to that from an aggravation of underlying degenerative changes in the medial meniscus.
The inconsistency in range of motion was brought to the attention of the claimant. The claimant could not provide a satisfactory explanation for the disparity/variability in range of motion aside from prevailing pain levels.
The Review Panel has rated the right knee condition by analogy as analogous to a patient with a history of direct trauma, patellofemoral pain and crepitation on examination without joint space narrowing on X-ray.
The Review Panel has given a 2% whole person impairment rating for the right knee in accordance with Table 62, AMA 4, page 83 footnote.

Combined impairment

The total combined whole person impairment rating equals 10% whole person impairment.

Body Part or System AMA Guides/ MAA Guidelines References
(chapter/ page/table)
Permanent (YES/NO)
Current %WPI* %WPI* from pre-existing OR subsequent causes %WPI* due to motor accident

1.

Lumbar spine

AMA 4, Chapter 3, Page 102

YES

5

0

5

2.

Right hip

AMA 4, Chapter 3 and SIRA Guidelines Sections 6.68 to 6.110

YES

3

0

3

3.

Right knee

AMA 4, Chapter 3 and SIRA Guidelines Sections 6.68 to 6.110

YES

2

0

2

4.

Total

10

10

TREATMENT AND CARE DISPUTE
Whether an ultrasound guided cortisone injection to the left knee is reasonable and necessary in the circumstances

Whilst the Review Panel notes that the claimant developed left knee pain associated with walking, due to preferential use of the left lower extremity, the Review Panel was unable to find any objective signs of injury to the left knee. The documentation does not provide contemporaneous evidence of left knee injury from the subject motor accident.
Leaving aside the issue of causation, the Review Panel does not consider that an ultrasound guided corticosteroid injection to the left knee was reasonable and necessary treatment in the absence of a clear diagnosis, based upon clinical findings.

Whether an ultrasound guided cortisone injection to the right knee is reasonable and necessary in the circumstances,

The claimant has already undergone a corticosteroid injection to the right knee without durable benefit.
Imaging of the right knee does not demonstrate evidence of a synovitis complaint or other inflammatory disorder that would benefit from the use of corticosteroid on more than one occasion.
The Review Panel has not found any underlying knee pathology to (medically) account for the claimant’s inability to bend the knee. Given the extreme hypersensitivity of the right leg to simple touch, it is unlikely that the claimant would tolerate such as an invasive procedure, and in the clinical circumstances of severe unrelenting right leg pain without specific medical diagnosis, the Review Panel’s clinical recommendation is that invasive interventions such as injections be avoided.
Accordingly, the Review Panel does not find that the recommendation for corticosteroid injection to the right knee is reasonable and necessary in the circumstances.

Whether an X-ray to the left knee is reasonable and necessary in the circumstances

For the reasons set out above, the Review Panel does not find that there is a requirement for imaging of the left knee in the absence of clinical signs of a joint effusion, abnormal crepitus, restricted motion, instability or pain with provocation tests.

Whether an X-ray of the right knee is reasonable and necessary in the circumstances

The claimant has already undergone two MRI scans of the right knee (April 2018 and August 2018) in addition to X-ray examination, the MRI scans demonstrating iliotibial band friction at the lateral knee).
The Review Panel does not find that further imaging of the knee by way of X-ray, CT scans or MRI scans is reasonable and necessary.

Whether an CT scans or MRI scans of the left knee are reasonable and necessary in the circumstances

For the reasons set out above, the claimant does not require CT scan or MRI scan imaging of the left knee on clinical grounds.

Whether an CT scans or MRI scans of the right knee are reasonable and necessary in the circumstances

For the reasons set out above, the claimant does not require CT scan or MRI scan imaging of the right knee on clinical grounds. He has undergone at least two MRI scans of the right knee since the motor accident which have not led to effective treatment of the knee condition. A third MRI scan more than four years after the motor accident will therefore not benefit the claimant.

CONCLUSION

The Review Panel has determined that the injuries referred for assessment that are caused by the motor accident give rise to a permanent impairment of 10% and is not greater than 10%.
The Review Panel has determined that the treatment and care referred for assessment is not reasonable and necessary in the circumstances.
The certificate of Medical Assessor Cameron is revoked. A replacement certificate is issued at the commencement of these Reasons.

Body Part or System	AMA Guides/ MAA Guidelines References (chapter/ page/table)	Permanent (YES/NO)	Current %WPI*	*%WPI from pre-existing OR subsequent causes**	*%WPI due to motor accident**
1.	Lumbar spine	AMA 4, Chapter 3, Page 102	YES	5	0	5
2.	Right hip	AMA 4, Chapter 3 and SIRA Guidelines Sections 6.68 to 6.110	YES	3	0	3
3.	Right knee	AMA 4, Chapter 3 and SIRA Guidelines Sections 6.68 to 6.110	YES	2	0	2
4.	Total	10	10

[2024] NSWPICMP 114

27 February 2024