Nazer v Allianz Australia Insurance Limited
[2024] NSWPICMP 164
•20 March 2024
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Nazer v Allianz Australia Insurance Limited [2024] NSWPICMP 164 |
| CLAIMANT: | Ramiz Nazer |
| INSURER: | Allianz |
| REVIEW PANEL | |
| MEMBER: | Hugh Macken |
| MEDICAL ASSESSOR: | Sophia Lahz |
| MEDICAL ASSESSOR: | Alan Home |
| DATE OF DECISION: | 20 March 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; certificate under section 7.23(1); new certificate determining whole person impairment of 0%; rules with respect to practice and procedure before a Panel reviewing a decision; new assessment of all matters; multiple body parts to be assessed; pre-imposed accident diagnostic imaging; history of treatment; no muscle spasm or guarding; active motion restricted in all planes of motion; motion inconsistent when re-tested; no objective signs of shoulder pathology; negligible shoulder movements; no specific diagnosis made; no verifiable or non-verifiable radicular complaints; Held – new certificate issued. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor James Bodel dated · cervical spine – 0%, and · lumbar spine – 0%. 2. The claimant suffered a whole person impairment of 0%. |
STATEMENT OF REASONS
INTRODUCTION
The claimant is a 41-year-old man who was injured in a motor vehicle accident which occurred on 2 February 2021. The claimant sought a concession from the insurer that his injuries exceeded the 10% whole person impairment threshold established by the legislation. The insurer did not make this concession and, consequently, the claimant was examined on behalf of the Personal Injury Commission (Commission) in respect to physical and psychological injuries to ascertain as to whether or not his injuries exceeded the 10% whole person impairment threshold.
The claimant was examined by Medical Assessor Matthew Jones on 26 October 2023 for an assessment of whole person impairment consequent on the injury who, in a certificate dated 8 November 2023, certified that all injuries referred for assessment have been assessed and determined not caused by the motor accident. That decision is currently subject to a review.
The claimant was examined by Medical Assessor James Bodel on 5 September 2023 who, in a certificate dated 20 September 2023 determined that the claimant’s physical injuries sustained in the accident constituted a whole person impairment of 11%. This was consequent on an impairment of the right shoulder of 6% and an impairment of the lumbar spine of 5%.
The insurer sought a review of this determination and in a certificate dated
17 November 2023 the President’s delegate, Tajan Baba, determined that there was reasonable cause to suspect that the Medical Panel was incorrect in a material respect and accordingly the matter was referred to this Medical Panel.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of the Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provision provide that a review panel consists of two Medical Assessors and a Member assigned by the Motor Accidents Division of the Commission.
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the matter solely based on the written application.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.
STATUTORY PROVISIONS/GUIDELINES
Section 57 of the Motor Accidents Compensation Act 1999 (MAC Act) defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 and s 60 of the MAC Act together with cls 1.5-1.7 of the Guidelines set out the procedures for referral to one or more Medical Assessors and the principles to be applied at such assessments.
Permanent impairment dispute to be assessed
The following injuries were referred to the Commission for assessment:
(a) left leg – soft tissue injury;
(b) right leg – soft tissue injury;
(c) cervical spine – disc bulge/soft tissue injury radiculopathy;
(d) left hand – soft tissue injury;
(e) right hand – soft tissue injury;
(f) lumbar spine – annular tear, disc bulge and nerve root impingement/soft tissue injury with radiculopathy;
(g) right shoulder – soft tissue injury with radiculopathy and referred pain from the neck, and
(h) thoracic spine – discal injury/soft tissue injury with radiculopathy.
Medical Assessor James Bodel found the claimant suffered an injury to his cervical spine, lumbar spine, right upper extremity and thoracic spine giving rise to an impairment of 11%. That is, 6% right upper extremity (right shoulder) and 5% lumbar spine.
The claimant attended at 1 Oxford Street, Sydney and was examined by Medical Assessor Sophia Lahz and Medical Assessor Alan Home on 20 February 2024. The Panel determined that the circumstances warranted both Medical Assessors examining the claimant.
The claimant attended unaccompanied.
MATERIAL UNDER REVIEW
All the material which was before Medical Assessor James Bodel was available to the Medical Panel as were the submissions in support of the insurer’s application for review and the claimant’s submissions in reply to the insurer’s application for the review of assessment.
The Medical Panel considered pre-accident and post-accident diagnostic imaging.
DIAGNOSTIC IMAGING
Pre-accident
MRI lumbar spine, dated 10 December 2018. At L4/5, a minimal disc bulge. At L5/S1, a mild left paracentral posterior broad based disc bulge with low grade contact at the descending left L5nerve root within the lateral recess and also possible contacting the exiting left L5 nerve root.
Post-accident
MRI lumbar spine, dated 15 February 2021. At L2/3, mild disc desiccation. No significant disc bulge. At L3/4, disc desiccation with a small broad based posterior disc bulge. Minor effacement of the anterior thecal sac. No significant central canal or neural exit foraminal narrowing. At L4/5, minor disc desiccation. No significant disc bulge. Central canal or neural exit foramina are not significantly narrowed. Mild bilateral facet joint arthropathy. At L5/S1, a small annulus tear within the intervertebral disc, eccentric to the left associated with moderate posterior disc bulge that causes neural exit foraminal narrowing and exiting left L5 nerve root impingement. There is minor abutment of the descending left S1 nerve root with possible intermittent impingement. The right neural exit foramina is patent. The right descending S1 nerve root is not impinged.
MRI cervical spine, dated 15 February 2021. Multilevel uncovertebral joint arthropathy from C3/4 to C6/7 with possible impingement of the left C4 nerve root, the right C5 nerve root and the right C6 nerve root and the right C7 nerve root.
CT guided L5/S1 epidural injection was performed on 26 July 2021.
MRI left shoulder, dated 9 February 2022. Tendinopathy of the supraspinatus with bursal surface fraying and fissuring. No high grade tear. There is a labral tear at the anteroinferior aspect. Mild subacromial bursitis.
MRI cervical spine, dated 9 February 2022. Multilevel degenerative changes from C3/4 to C6/7. Bilateral facet arthrosis at C3/4, C5/6 and C6/7. Foraminal narrowing at C3/4, C4/5, C5/6 and C6/7.
HISTORY
PAST MEDICAL HISTORY
Mr Nazer states that he could not recall a past history of thoracic back pain in 2015, for which he underwent CT scan imaging.
He could not recall an episode of lower back pain in December 2018, at which time he underwent MRI scans of the lumbar spine.
He recalls no prior history of spinal complaints.
He previously suffered an episode of hypertension, but had recovered from that prior to the subject accident.
DETAILS OF SUBJECT ACCIDENT
Mr Nazer states that on 2 February 2021, he was the unaccompanied seat-belted driver of a Toyota HiAce van, stationary on Punchbowl Road in Lakemba, when his vehicle was struck from behind by a truck. His vehicle was pushed into the car in front.
He was assisted from the car by passers-by.
He recalls early symptoms of dizziness. He states that after several minutes, he was able to telephone his employer. A co-worker came to collect him from the scene.
Police and ambulance did not attend the scene. He was driven home. His vehicle was towed away.
HISTORY OF TREATMENT
He attended his general practitioner, Dr Hanna, on 6 February 2021 with complaints of neck and lower back pain. He cannot recall additional physical symptoms in the early days after the accident. He says that he was referred for MRI scan imaging of the spine.
He was subsequently seen by Dr Kanawati on 23 February 2021. He was subsequently referred for physical therapy. He recalls some mild benefit from the therapy.
In June 2021 he attended Dr McKechnie, neurosurgeon. He was advised to undergo conservative management.
On 26 July 2021 he underwent an epidural corticosteroid injection. He recalls no benefit from the procedure.
He confirms that there was discussion about surgical treatment, but he declined the recommendation.
He reports that after concluding physical therapy, he commenced supervised hydrotherapy exercise, which he undertook from mid-2022. He says he continued to attend hydrotherapy exercise until October 2023. He recalls benefit in relation to his range of spinal motion.
He reports the current use of Paracetamol or Ibuprofen. On other days, he takes Maxigesic. He occasionally takes Lyrica. He takes analgesic medication each day. He continues home exercise, including walking.
In relation to his other complaints, he says that he first developed left shoulder pain two or three months after the subject accident. He reports that there has been subsequent increase in pain at the left shoulder.
He reports that he first developed right shoulder pain approximately 12 months, possibly longer, after the accident. He says that he now experiences prominent pain at the right and left shoulder.
He recalls that he developed bilateral knee pain several months after the accident. He could not recall the precise timing of onset. To enquiry, he did not suffer a direct blow to the knees in the subject accident.
CURRENT SYMPTOMS
Mr Nazer states that he experiences intermittent, but daily, neck pain. The pain is usually felt on both sides of the neck. He describes additional midline pain. There is sometimes associated global headache. There is sometimes a sensation of nausea but not vomiting. He describes blurred vision along with sensations of dizziness and instability. He reports occasional paraesthesia in the palms of his hands.
At the right shoulder, he reports localised pain around the shoulder convexity, exacerbated by movement and lifting. He says that he cannot lift his arm above the horizontal.
At the left shoulder, he describes similar constant pain, exacerbated by activity. Again, he describes difficulty lifting his left arm above the horizontal. He avoids heavy manual handling.
He reports constant low back pain, felt in the midline with spread toward the left loin. The pain is present all day but is sometimes eased by medication. The pain is felt in the midline without distal radiation. He denies bowel or bladder dysfunction. There is no referred pain to the legs. He reports intermittent paraesthesia in the soles of both feet.
He reports anterior right and left knee pain, primarily associated with prolonged walking, negotiation of slopes and stair climbing. There is no swelling or giving way at the knees.
FUNCTIONAL CAPACITY AND REPORTED TOLERANCES
He is right hand dominant.
He reports a sitting tolerance of 15 to 20 minutes and a similar tolerance for walking. He avoids deep forward bending at the waist. He performs stairclimbing with normal cadence.
His sleep pattern is disturbed.
He is independent for activities of self-care.
He is able to lift up to 5kg in both hands.
SOCIAL HISTORY
He is separated, living with his brother whom he said “comes and goes”. He smokes a packet of cigarettes daily.
He is able to undertake laundry tasks. He does not perform cooking. He does not perform heavy cleaning. He lives in an apartment. There are no gardening requirements.
He has not resumed previous active hobbies of playing soccer, cycling and playing with his children.
VOCATIONAL HISTORY
He was working as a van driver in the period leading up to the accident. He has not worked since the accident.
He arrived in Australia from Egypt in October 2017. In Egypt, he worked in retail sales with his brother.
PHYSICAL EXAMINATION
Mr Nazer is a 41-year-old male, standing at 176cm and weighing 90kg.
He appeared to sit comfortably during the interview lasting 45 minutes. He sat with his head often tilted toward the left.
At the commencement of the examination, he was asked to give his best effort with performance of all requested movements or else the assessors would be unable to interpret the clinical findings for use to determine WPI. He indicated that he understood these instructions.
Cervical spine
Examination of the cervical spine reveals normal spinal curvature. There is no muscle spasm or guarding. It was difficult to assess active motion at the cervical spine which was initially extremely restricted in all planes of motion and associated with pain complaints. The motion was inconsistent when re-tested.
However, with repeat testing, maximum cervical flexion and extension were both measured at 4/5 normal range, right and left rotation was performed to 3/4 normal range on each side and lateral flexion was performed to 1/2 normal range on each side.
It was not possible to assess dysmetria, due to the inconsistencies in range of motion. However, at maximum range, there is symmetrical motion. There is no muscle guarding evident. Diffuse tenderness is elicited to palpation throughout the cervical spine, without localisation.
The neurological examination of the upper extremities reveals no muscle wasting. There is normal power in all muscle groups. There is normal sensibility throughout. The deep tendon reflexes are symmetrically preserved.
The circumference of the right and left arms were measured at 30cm on each side 10cm above the elbow crease. the circumference of the right forearm was 28.5cm and the left forearm 28cm, 5cm below the elbow crease consistent with right hand dominance.
There were no upper limb non-verifiable radicular complaints.
He could not actively elevate the upper limbs sufficiently for assessment of upper limb neural tension tests.
Shoulders
Active motion at the right and left shoulders was carefully tested and repeated on three occasions. The range of motion demonstrated was inconsistent and there was evident voluntary restriction of motion associated with pain complaint. This persisted despite advice to the claimant that the motion was inconsistent with previous assessments.
The maximum ranges obtained are as follows:
| Shoulder Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Flexion | 70 | 80 |
| Extension | 40 | 40 |
| Adduction | 40 | 30 |
| Abduction | 70 | 70 |
| Internal Rotation | 70 | 60 |
| External Rotation | 70 | 80 |
The claimant was unable to reach his hand to top of his head on either side. When carefully tested, there was no evidence of passive restriction of motion with the elbows by the side, such that there was no objective evidence of adhesive capsulitis. There was normal internal and external rotation of the shoulders with arms at his side.
The range of motion was markedly inconsistent with that set out previously by Medical Assessor Bodel.
When this inconsistency was raised with the claimant, he could not explain the disparity in the range of movement demonstrated.
There were no objective signs of shoulder pathology such as muscle wasting.
Thoracolumbar spine
On examination of the thoracolumbar spine, there was a gentle scoliosis, convex to the left in the mid thoracic region. Thoracic motion was symmetrically performed to normal range, thoracic flexion and extension were maintained to 2/3 normal range in each direction. There are no clinical signs of thoracic radiculopathy. There was no thoracic muscle guarding or else spasm and there were no thoracic non-verifiable radicular complaints.
Lumbosacral spine
On examination of the lumbosacral spine, there is normal lordotic curvature. Lumbar flexion was performed to 1/2 normal range, extension 1/2 normal range, lateral flexion is symmetrically performed to reach fingertips to just above the knee crease on each side. There is no dysmetria evident. There is no muscle guarding. Straight leg raise is performed to 60° bilaterally when tested indirectly. The sciatic sign is bilaterally negative.
The neurological examination of the lower extremities reveals no muscle wasting. The circumference of the thighs were symmetrical 10cm above the superior patellar border and there was no measurable wasting of the calves at maximum mid girth. The circumference of the right calf was 5mm larger in diameter than the left. There is normal power in all muscle groups in the lower extremities. There is normal sensibility throughout the lower extremities. The deep tendon reflexes are symmetrically preserved.
Widespread tenderness is elicited to palpation beyond the normal anatomical boundaries of the spine and is not localised.
Lower extremities
There is no objective abnormality on examination of the right or left leg.
DIAGNOSIS AND CAUSATION
The claimant was involved in a motor vehicle accident in which his vehicle was struck from behind. The photographs demonstrate extensive damage to the rear of the claimant’s car.
There was early documentation of complaints of neck and lower back pain in the medical certificates and in the treating general practitioner’s notes including the notes of Dr Hanna and Dr Kanawati.
Complaints of neck and back pain were also detailed in the physical therapy notes.
It is apparent that the claimant suffered the following injuries:
· Cervical spine: soft tissue injury with underlying degenerative change.
· Lumbar spine: soft tissue injury with underlying degenerative changes.
The claimant did not recall any early symptoms of bilateral shoulder pain.
He first recalled noticing left shoulder pain three or four months post-accident and right shoulder pain at least twelve months post-accident.
This is concordant with the medical record, which does not detail any specific complaints at either shoulder until there was imaging of the left shoulder performed in February 2022, 12 months post-accident.
At that time, imaging demonstrated supraspinatus tendinopathy and an anteroinferior labral tear with mild subacromial bursitis.
The Panel finds that the claimant does suffer from mechanical pain at the left shoulder due to underlying cuff tendinopathy and bursitis, that is causally unrelated to the subject accident.
It is noted that the left shoulder complaint was not listed as an injury for assessment.
In relation to the listed right shoulder condition, the claimant recalls that the symptoms commenced at, or at least, 12 months post-accident.
Whilst the claimant may well suffer from right shoulder pain, the examination findings were internally inconsistent and also inconsistent with previous examinations. Medical Assessor Bodel on 20 September 2023 observed full range of left shoulder motion and right shoulder restriction with flexion of 140 degrees and abduction of 120 degrees. Dr Breit found negligible shoulder movements, which attributed to poor effort. No specific diagnosis is made.
The Panel finds that there is local shoulder pathology, noting that the claimant reports localised shoulder pain with joint movement.
In the absence of a history of shoulder pain in the 12-month period post-accident, the Medical Panel concludes that the right shoulder condition is not causally related to the accident. Such a late onset of symptoms is not consistent with an injury arising from the subject accident.
Whilst the listed injuries include a diagnosis of referred pain from the neck, the Panel did not find that the claimant reported referred pain from the neck limiting shoulder motion, but rather localized pain at the shoulders with motion.
The Panel did not find any evidence of local injury to the bilateral legs or bilateral hands, nor were there localised complaints in the thoracic spine region.
Summary of injuries referred by the parties
The following injuries WERE caused by the motor accident:
· cervical spine – soft tissue injury, aggravation of underlying degenerative change, and
· lumbar spine – soft tissue injury, aggravation of underlying degenerative change.
The following injuries WERE NOT caused by the motor accident:
(a) left leg – soft tissue injury;
(b) right leg – soft tissue injury;
(c) cervical spine – disc bulge/soft tissue injury radiculopathy;
(d) left hand – soft tissue injury;
(e) right hand – soft tissue injury;
(f) lumbar spine – annular tear, disc bulge and nerve root impingement/soft tissue injury with radiculopathy;
(g) right shoulder – soft tissue injury with radiculopathy and referred pain from the neck, and
(h) thoracic spine – discal injury/soft tissue injury with radiculopathy.
PERMANENCY OF IMPAIRMENT
Statement about permanent impairment
Permanent impairment is defined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) (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.”
The Panel has assessed permanent impairment using the SIRA Impairment Guides version 8, October 2021, and the American Medical Association’s Guides to the Evaluation of Permanent Impairment (4th Edition).
The Panel find that the claimant’s conditions have stabilised in accordance with the definitions set out above.
Cervicothoracic (cervical) spine
The clinical presentation is consistent with a DRE Cervicothoracic Category I impairment rating. There are complaints of intermittent neck pain. There is no muscle spasm. There is symmetrical spinal motion. There are no verifiable or non-verifiable radicular complaints. There is no muscle guarding.
A 0% whole person impairment rating arises in accordance with the methodology set out in AMA 4, Chapter 3, Page 103.
Permanent impairment ratings take symptoms into account, however the percentage whole person impairment is not a direct measure of disability. A finding of 0% whole person impairment indicates that there was an injury caused by the motor vehicle accident and that there may be continuing symptoms, however the relevant Guides rate the associated impairment at 0%.
Lumbosacral (lumbar) spine
The clinical presentation is consistent with a DRE Lumbosacral Category I impairment rating. There are complaints of intermittent low back pain. There is no muscle spasm. There is symmetrical spinal motion. There are no verifiable or non-verifiable radicular complaints. There is no muscle guarding.
A 0% whole person impairment rating arises in accordance with the methodology set out in AMA 4, Chapter 3, Page 102.
| Body Part or System | AMA Guides/ MAA Guidelines References | 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 103 | YES | 0 | 0 | 0 |
| 2. | Lumbar spine | AMA 4, Chapter 3, Page 102 | YES | 0 | 0 | 0 |
| Combined Impairment | 0% WPI |
0
0
0