Nelson v AAI Limited t/as AAMI

[2025] NSWPICMP 576

DETERMINATION OF REVIEW PANEL

CITATION:

Nelson v AAI Limited t/as AAMI [2025] NSWPICMP 576

CLAIMANT:

Gabriella Olivia Nelson

INSURER:

AAI Limited t/as AAMI

REVIEW PANEL

MEMBER:

Gary Victor Patterson

MEDICAL ASSESSOR:

David Gorman

MEDICAL ASSESSOR:

Tai-Tak Wan

DATE OF DECISION:

7 August 2025

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); permanent impairment dispute; Medical Assessor (MA) certified that the claimant’s facial scarring was a non-threshold injury; MA subsequently found 2% whole person impairment (WPI) for facial scarring; no permanent impairment arising from possible mild traumatic brain injury and soft tissue injuries to the cervical and lumbar spine; MA found injuries to the right hand and right shoulder were not caused by the motor accident; claimant’s review application allowed on the basis that the Medical Assessor did not provide a clear path of reasoning concerning his assessment of injury to the right shoulder and right hand; Held – MAC revoked.

DETERMINATIONS MADE:  

CERTIFICATE

REVIEW PANEL ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENT

Certificate issued under s 7.26(7) of the Motor Accident Injuries Act2017 (the Act)

1.     The Review Panel revokes the certificate dated 1 December 2024 and issues a new certificate determining that:

(a)    the following injuries caused by the motor accident give rise to a permanent impairment of 1% and IS NOT GREATER THAN 10%:

·         head – possible mild traumatic brain injury;

·         face – scarring;

·         cervical spine – soft tissue injury, and

·         lumbar spine – soft tissue injury.

(b)    the following injuries referred for assessment have been assessed and determined to be not caused by the motor accident:

·         chest – tension in the neck;

·         right hand – sensation in the median nerve distribution of the right hand, and

·         right shoulder – impaired range of movement.

An assessment of the degree of permanent impairment of these injuries is therefore not required.

STATEMENT OF REASONS

INTRODUCTION

1. On 25 June 2022 at approximately 6.00pm, Gabriella Olivia Nelson (the claimant) was an unrestrained rear-seat passenger in the insured vehicle which was travelling at speed. The driver lost control of the vehicle at the intersection of Barney Street and Church Street, North Parramatta. The vehicle hit a wall and rolled onto its roof. The airbags deployed. There were six passengers in the small vehicle. Four of the passengers departed the scene, leaving the claimant and one other. The claimant suffered a large laceration to her forehead. There was no definite loss of consciousness. An ambulance attended and conveyed the claimant to Westmead Hospital. She had initial treatment and was discharged to the care of her general practitioner. The claimant returned to work after about two weeks. She had modified duties initially. She returned to driving after two to three weeks. Physiotherapy treatment was effective. The claimant developed psychological symptoms.

2. AAMI (the insurer) indemnifies the owner and/or the driver of the at-fault vehicle for liability to pay to the claimant any statutory benefits and damages under the Motor Accident Injuries Act 2017 (the Act). On 12 August 2023, Medical Assessor Cameron issued a Certificate declaring that the claimant’s facial scarring was a non-threshold injury. Accordingly, on 10 October 2023, the insurer issued a liability notice confirming it accepted liability for common law damages, subject to a 20% reduction for contributory negligence. The insurer subsequently determined that the claimant’s permanent impairment, resulting from injuries caused by the motor accident, is not greater than 10%, based upon a report by Dr Andrew Keller (see later). That decision was confirmed upon internal review. 

ASSESSMENT UNDER REVIEW

1. As there is a dispute between the parties about the degree of permanent impairment under Schedule 2, cl 2(a) of the Act, the claimant was referred to Medical Assessor Ian Cameron for assessment of her physical injuries.

2. Medical Assessor Cameron certified on 1 December 2024 as follows:

The following injuries caused by the motor accident give rise to a permanent impairment of 2% and IS NOT GREATER THAN 10%:

• head – possible mild traumatic brain injury;
• face – scarring;
• cervical spine – soft tissue injury; and
• lumbar spine – soft tissue injury.

The following injuries referred to me for assessment have been assessed and determined to be not caused by the motor accident:

• Chest – tension in the neck
• Right hand – sensation in the median nerve distribution of the right hand
• Right shoulder – impaired range of movement

An assessment of the degree of permanent impairment of these injuries is therefore not required.

Medical Assessor Cameron assessed 2% whole person impairment (WPI) for facial scarring, utilising the TEMSKI scale, under Table 6.18 of the Motor Accident Guidelines (Guidelines).

THE REVIEW

1. The claimant sought a review of Medical Assessor Cameron’s certificate, on the grounds that the medical assessment was incorrect in a material respect, under s 7.26 of the Act. The claimant relied upon the particulars set out in the application and supporting documentation.

2. The claimant brought the application within the time prescribed by s 7.26(10) of the Act and cl 34 of Procedural Direction PIC 7 (28 days).

3. The claimant submitted that the Medical Assessor fell into error by ignoring relevant material and reaching a mistaken conclusion. Additionally, the claimant submitted the Medical Assessor failed to provide sufficient reasons on causation, regarding the right shoulder and right hand injury.

4. The claimant noted that Dr Evan Dryson, in his report dated 21 February 2024, diagnosed the following:

   (a)    facial laceration;

   (b)    soft tissue injury, cervical spine;

   (c)    soft tissue injury, lumbar spine;

   (d)    impaired range of movement, right shoulder;

   (e)    probable post-concussion syndrome;

   (f)    dizziness, and

   (g)    old blowout fracture, left orbit.

   Dr Dryson assessed 18% WPI.

5. The claimant submitted that the Medical Assessor did not comply with his statutory duty and made an erroneous finding, that the claimant’s right hand and right shoulder injuries were not caused by the accident, from failing to consider relevant medical evidence.

6. The claimant particularises complaints made to her treating general practitioner, soon after the accident, regarding right shoulder pain and weak right hand grip. That material was included in the documentation before the Medical Assessor.

7. The claimant further submitted that the Medical Assessor failed to provide sufficient reasons for his conclusion that there was no evidence that those injuries occurred in the subject accident.

8. The claimant’s review application was opposed by the insurer on various grounds. As those submissions were not accepted by the President’s delegate, it is not necessary to state them in detail. The insurer submitted that the claimant failed to establish reasonable cause to suspect that Medical Assessor Cameron made any errors, material or otherwise, in respect of his determinations.

9. The insurer submitted that the Medical Assessor’s reasoning with respect to causation was unambiguous, and that it was clearly open to the Medical Assessor to find that the right shoulder and right hand injuries were not caused by the motor accident.

10. The insurer noted that the Medical Assessor relied on all of the following in making his determination as to causation:

    ·        No report of injury to the right shoulder and right hand, and normal examination of those areas in the ambulance records, hospital records and the Medical Assessor’s prior certificate (threshold injury).

    ·        Late report to the treating general practitioner of right shoulder and right hand symptoms (about one-month post-accident), as recorded in the clinical notes of Chester Hill Medical Practice.

    ·        Limited complaints of those symptoms as recorded in the clinical notes of Chester Hill Medical Practice, as follows:

    oon 22 July 2022 that the claimant had “no further pain in her hands”;

    oon 3 August 2022, the claimant reported “normal function”;

    oon 19 August 2022, the claimant stated she was “feeling better all function back to normal”, and

    ono further complaints relating to the right shoulder or right hand at all in the clinical notes thereafter.

    ·        Normal bilateral upper limbs nerve conduction study in April 2024.

    ·        No complaint of right shoulder symptoms to Medical Assessor Cameron on examination on 26 November 2024.

    ·        Normal examination of those areas on examination on 26 November 2024.

    ·        The findings of Dr Dryson in his report dated 24 January 2024 were not replicated in the examination on 26 November 2024.

11. The insurer submitted that the claimant had not established that Medical Assessor Cameron made any error, material or otherwise. It further submitted that Medical Assessor Cameron determined, after a review of the comprehensive material before him, that there was no evidence to establish that the alleged symptoms in the right shoulder and right hand were caused by the subject accident.

12. President’s delegate Stephanie Wigan issued a Determination of an Application for Review of a Medical Assessment on 6 February 2025 which stated the satisfaction of the President’s delegate there is reasonable cause to suspect that Medical Assessor Cameron’s assessment was incorrect in a material respect. The basis of that decision was stated to be that it appears the Medical Assessor did not provide a clear path of reasoning concerning his assessment of injury to the right shoulder and right hand, and thus how he arrived at the ultimate determination.

13. Accordingly, the claimant’s review application was accepted. The Panel is to reassess all of the injuries that were referred to Medical Assessor Cameron for assessment unless the parties otherwise agree.

STATUTORY PROVISIONS

1. A medical assessment matter is determined in accordance with s 63 of the Act. The matter is determined at first instance by a Medical Assessor pursuant to and, on review, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).

2. Part 5 of the Personal Injury Commission Act 2020 (the 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.[1]

   [1] Section 41(2) of the PIC Act.

3. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the 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.[2]

   [2] Rule 128 of the PIC Rules.

4. The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[3]

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

5. All members of the Review Panel had no previous involvement with the claimant or with this matter.

CAUSATION OF INJURY

1. Causation of injury is addressed in the Guidelines as follows:

   “6.5   An assessment of the degree of permanent impairment is a medical assessment matter under cl 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 AMA 4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.

   6.6    Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:

   Causation means that a physical, chemical or biological 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 contributed to the worsening of the impairment, which is a non-medical determination.

   This, therefore, involves a medical decision and non-medical informed judgment.

   6.7    There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”

2. See Briggs v IAG Limited t/as NRMA Limited.[4]  See also Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956,[5] wherein his Honour Justice Wright stated at (35):

   [4] Briggs v IAG Limited t/as NRMA Insurance [2022] NSWSC 372.

   [5] Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956.

   “The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principes were intended to be applied when a medical assessment was being made in relation to causation of minor injuries.”

3. Wright J then described the Panel’s role in a medical review which is to:

   “Consider whether the motor accident did cause or contribute to (the claimant’s condition). This requires, not a consideration of material derived as a result of an internet search… but rather a consideration of the material referred to in 5.6 of the Guidelines, namely all the evidence available to the Panel, including all relevant findings derived from:

   (1)    a comprehensive, accurate history, including pre-accident history and pre-existing conditions;

   (2)    a review of all relevant records available at the assessment;

   (3)    a comprehensive description of the injured person’s current symptoms;

   (4)    a careful and thorough physical examination;

   (5)    diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”

4. The words “in the circumstances” in the context of whether the treatment is “reasonable and necessary” must refer to the particular circumstances of the claimant. This is because Schedule 2 of the Act refers to treatment “provided or to be provided to the claimant”.

5. The test of “reasonable and necessary in the circumstances” does not direct attention to the relationship between the accident and the treatment. That issue arises from consideration of whether treatment “relates to the injury caused by the accident”.

BUNDLES OF DOCUMENTS

1. The parties have presented their respective bundles of documents upon which they rely. The Review Panel (Panel) has read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel, or a Panel Member, has not read it, nor taken it into consideration. The same principle applies to parties not referring to, nor specifically relying upon, a document in their own bundle and submissions.

2. The fact that evidence is not referred to in these reasons does not mean it has been overlooked. It is not required that each piece of evidence be mentioned.  The Panel is not required to “analyse every piece of information from every opinion contained in a document with which it was provided”. The Panel has come to its own conclusions and has taken its own history.

MATERIAL BEFORE THE REVIEW PANEL

1. The claimant relied upon the following material which the Panel has considered:

No.	Documents	Date	Page
A1	Claimant’s submissions in relation to Review Application (see previously)	20.12.2024	2
A2	Certificate of Medical Assessor Ian Cameron (see previously)	01.12.2024	6

1. Clinical Records

A6	Clinical file of Professor Nimeshan Geevisinga	09.04.2023	35
A7	Treating report of Dr Marina Cavada	01.06.2023	57
A8	Clinical file of Chester Hill Family Medical Centre	24.07.2023	59
A9	Clinical file of Winston Hills Physiotherapy	22.12.2023	294
A10	NSW Ambulance Report	25.06.2022	302
A11	Updated clinical file of Chester Hill Medical Centre	05.02.2024	308
A12	Neurophysiology Test Report	30.04.2024	345

Conclusion:

Normal study. There was no neurophysiological evidence of carpal tunnel syndrome.

A13 Updated clinical file of Winston Hills Physiotherapy 26.04.2024 347

1. Medico-Legal Reports:

A14 Report of Dr Evan Dryson, occupational physician, to the claimant’s lawyers 21.02.2024 349

Dr Dryson provided the following DIAGNOSIS:

·        facial laceration resulting in a curbed scar above the left eyebrow which was well-healed. it measured 4cm in length;

·        soft tissue injury, cervical spine;

·        soft tissue injury, lumbar spine;

·        impaired range of movement, right shoulder – pathology not yet identified;

·        probable post-concussion syndrome;

·        dizziness – cause not identified, and

·        old blowout fracture left orbit.

1. In relation to causal connection between the accident and the injuries sustained, Dr Dryson opined as follows:

   “Ms Nelson clearly sustained a blow to the head, as is shown by the laceration over the left eyebrow. I agree that she is likely to have a post-concussion syndrome as a consequence.

   She has also sustained soft tissue injury to the cervical spine with no evidence of disc injury. This would be in the nature of a whiplash-associated disorder.

   She has altered sensation in the right hand. This needs further exploration but is likely to represent a carpal tunnel syndrome. Noting that it has only occurred since the subject accident, it is likely to be caused by the subject accident, no doubt by contusion to the median nerve.

   Ms Nelson is reporting dizziness. This too has only occurred since the subject accident, noting that a previous episode of dizziness has resolved completely. It is likely to be part of her post-concussion syndrome. As such, it appears to be persisting.”

2. Dr Dryson assessed WPI as follows:

Body parts	% WPI
Cervical spine	5%
Lumbar spine	5%
Right shoulder	4%
Right hand, neurological	3%
Scarring	1%
Cognitive function	Not assessed

Dr Dryson found that, utilising the Combined Values, there is 18% WPI.

35.      A15 Report of Dr Ron Granot, neurologist, to the claimant’s lawyers 29.04.2024 359

The following summary of Dr Granot’s report.

Dr Granot opines there is objective evidence under the Guidelines to diagnose a traumatic brain injury, based upon a Glasgow Coma Score (GCS) of 14, contrary to Assessor Cameron’s opinion. Dr Granot diagnoses a Mild Traumatic Brain Injury, with vestibula migraine, unclear of relationship to injury. Dr Granot says that “the trauma of the rollover motor vehicle accident at high speed is causally related to the ensuing mild traumatic brain injury”.

Due to the abnormal GCS reading recorded in the ambulance notes and hospital discharge summary, Dr Granot assesses 5% WPI, utilising s 6.166, Table 6.9 and Table 6.10 of the Guidelines.

Dr Granot says he prefers a formal diagnosis of mild traumatic brain injury, as opposed to the non-specific post-concussion syndrome diagnosis made by Dr Dryson.

1. The insurer relied upon the following material which the Panel has considered:

Documents	Date	Page
Insurer’s review submissions (see previously).	21.01.2025	1
Application for Personal Injury Benefits Claim Form	13.07.2022	5
Clinical records of Westmead Hospital	26.06.2022	11
Certificate of Fitness	Various	95

Certificate of Medical Assessor Cameron 12.08.2023 137

The following injury caused by the motor accident:

·     head – soft tissue injury

is a THRESHOLD INJURY for the purposes of the Act.

The following injury caused by the motor accident:

·     face - scarring

is a not a THRESHOLD INJURY for the purposes of the Act.

Chester Hill Medical Practice	05.02.2024	142
Report by Dr Andrew Keller, occupational physician, to the insurer	29.04.2024	178

1. Dr Keller records the claimant “reports most of her problem is psychological” which is outside his area of expertise. He does note that the claimant was then seeing a psychologist for post-traumatic stress disorder fortnightly and a psychiatrist once every six months.

2. Dr Keller’s clinical and functional findings on examination were as follows:

   “On examination today, there was a full range of motion in the cervical spine without spasm or signs of radiculopathy. She reported altered sensation in the right index finger with a positive Tinel’s test consistent with mild carpal tunnel syndrome. In my opinion, this is not related to the accident. In the lumbar spine, there was a full symmetrical range of motion without spasm or signs of radiculopathy. There was a full symmetrical range of motion in both shoulders, elbows, wrists and all finger joints.”

3. Dr Keller noted that “Dr Dryson’s physical examination findings vary to those present today and his impairment assessment will vary accordingly.” Dr Keller’s diagnosis in relation to the injuries and disabilities sustained in the accident is as follows:

   “In my opinion, she suffered a lacerated forehead that has healed well after plastic surgical treatment. She reports the subsequent development of lower back pain consistent with a lumbar spine soft tissue strain without radiculopathy. No other physical injuries were present today.”

   Dr Keller says that the claimant’s physical condition has stabilised. He assesses 1% WPI for scarring above the left eye and 0% WPI for the lumbar spine.

   Dr Keller notes the claimant’s statement that “she was essentially physically okay and that most of her problems were psychological.”

40.      Insurer’s reply to application for WPI assessment 30.05.2024 186

·The insurer notes that no assessment has been sought for the claimant’s psychological injury.

·The insurer notes the claimant asserts she sustained a “post-concussive injury” in the accident and relies on the reports of treating neurologist, Professor Geevasinga, whose provisional diagnosis was subject to further testing.

·The insurer notes that no expert evidence as to vestibula dysfunction has been served by the claimant. It observes the pre-accident records of Chester Hill Medical Practice contain complaints relevant to vestibula dysfunction.

·The insurer disputes that the alleged injuries to the cervical spine, right shoulder and lumbar spine were caused by the subject accident.

41.      MRI brain 17.12.2022 1

No features of any susceptibility-weighted staining to suggest haemorrhage or encephalomalacia in the frontal lobes. Evidence of left orbital wall fracture, with depression and partial herniation of the medial rectus and orbital fat. No definite features of entrapment but correlation with any history of diplopia is recommended.

42.      Joint report by Dr Melissa Hughes, clinical neuropsychologist and forensic psychologist, to the parties 18.04.2024 3

Summary and Opinion:

“…. She describes having been intoxicated at the time of the accident, experiencing understandable shock, disbelief and fears related to her young daughter at the time. There is also objective evidence of sustaining a laceration to the forehead in the accident. There is no indication of LOC, her GCS at the scene was 14/15 and initial and later neuro imaging are not consistent with significant neurological trauma. A mild concussion cannot be entirely excluded, but this would be expected to have resolved shortly after the accident and would not be expected to lead to ongoing cognitive affects. Previous Medical Assessors have opined that she sustained soft tissue injury to the head, but not brain injury and psychiatric Assessors have opined that she has experienced some psychopathology related to the accident, with indications that such psychological factors are related to her ongoing cognitive complaints.

Her descriptions of current functioning and observations over the assessment session indicated heightened anxiety and fatigue. Results on psychometric testing indicated …… her cognitive functions were largely intact.

Neuropsychological profile including history, presentation, and psychometric assessment suggests that the cognitive difficulties or prolonged concussive-like symptoms described are likely a manifestation of her psychological state rather than more organic pathophysiology from the original head injury….. Performances on cognitive testing indicated a largely intact cognitive profile. She did display some inefficiencies with complex attention and initial encoding of some aspects of new information. Such difficulties are likely to relate to her current psychological state and these and her experiences of prolonged concussive symptoms would be expected to improve considerably with eluviation of psychological distress.

Opinion in regard to prognosis is somewhat guarded. Her cognitive profile was largely intact and the generally minimal inefficiencies displayed are expected to improve alongside improved mood…. Regardless of any misattribution of symptoms and pre-disposing factors, her current reported functional symptoms did commence following the accident and can therefore considered to be causally related.

As there is no significant medically verified abnormality, WPI for TBI cannot be rated. Psychiatrists have previously detailed opinion on WPI related to the psychological sequalae related to the accident.”

EXAMINATION REPORT

1. The report of Medical Assessor Tai-Tak Wan is as follows:

   “Name  Ms Gabriella Nelson

   Date of Accident  25/6/2022

   Date of Examination                 29/6/2025

   Reported by   Medical Assessor Tai Tak Wan, dated 29/6/25

   Who attended the assessment Claimant alone

   Interpreter  Nil

   26/F Customer Service Administration, full time. Same job at the time of subject accident

   Injuries to be assessed

   According to Medical Assessor Cameron’s certificate, the following injuries were referred by the Personal Injury Commission (the Commission) for WPI assessment:

   ·Head - Post-concussion syndrome - mild traumatic brain injury.

   ·Skin Scarring - Facial laceration - subcutaneous structures including nerves to the skin. Further scarring over the left elbow.

   ·Chest - Tension in the neck.

   ·Right Hand - Sensation in the median nerve distribution of the right hand.

   ·Cervical Spine - Signs of soft tissue injury with no radiculopathy.

   ·Lumbar Spine - Signs of soft tissue injury, in the nature of asymmetric loss of range of motion, but no radiculopathy.

   ·Right Shoulder - Impaired range of movement

   Past Health

   ·Domestic violence by ex-partner, at age of 17

   ·Anxiety disorder – has been seeing psychologist since 2018

   ·Now seeing another psychologist of the same company, once / 2 weeks.

   ·Otherwise, PH is good

   ·No known history of allergy.

   Social History

   She studied up to year 12 but she could not remember her HSC score or ATAR score. She even could not tell me whether her school performance was average, above or below average. She said she was ‘disruptive” in school and did not want to attend school She said her best subject in school was Community and Family study and her worst subject was mathematics.

   She said she did various jobs after school and now works as customer service/ administration, full time (3 days she works at the office and 2 days works from home). Her tasks include managing cases, emails, calls, invoices, and may need to handle complex cases.

   She does not do much sport activities and does not go to gym regularly.

   Her hobby is reading, and she has no problem in that.

   She has separated from her ex-boyfriend (who is the father of her daughter) 3 years ago. She lives with her daughter (6 years old) in a 2/F unit with 15 steps. She has no problem walking stairs.

   She is a non-smoker and a social drinker. She denied taking any recreational drugs.

   The Accident

   She said on 25/6/2022, at about 5 am, she was a rear seat passenger sitting behind the driver, her friend Ms Smith. She said she was wearing a seatbelt and there was headrest in her seat. There were 6 people in the car, including a male in the boot of the car. Apparently, everyone had drunk some alcohol, including the driver. While turning a corner at the Church Street, Parramatta, the driver did not slow down and hit a pole, then the car rolled over, landing upside down. She could get off the car by herself. She believed the ambulance came and took her to Westmead Hospital, where she stayed for 1 night. However she said she could not remember further details, e.g. whether the police came to the scene. It was not clear whether she had any loss of consciousness (LOC).

   She said she sustained a laceration just above the left eyebrow, and was sutured by the Plastic Team of WMH. She had the stitches removed later by her GP. Apparently no formal PTA assessment was done in the ED. probably was 1 day or less. She had CT scan of brain and cervical spine, which apparently showed no fractures or intracranial injury, and she was discharged the next day.

   The claimant said there was initially some pain in right shoulder, but no bruises or bleeding was seen. It had not settled. She did not consult any orthopaedic specialist.

   She then complained of ‘brain fog, dizziness, poor concentration, fatigue in considering cognitive problem. She had MRI brain and consulted a neurologist Dr Geevisinga 6 months after the subject accident (only twice) who told her she had post-concussion syndrome.

   She had physio, starting 6 months after the accident, until 1 year ago

   She consulted a psychologist (or a counsellor) once.

   Current symptoms

   ·Dizziness, brain fog, low concentration and poor memory. E.g. She could not remember the date of the accident, and has to look up from her phone; sometimes she has difficulty at work for complex cases. She said her memory for recent events is OK, but memory for distant events is more difficulty. She may forget where she puts her handbag.

   ·Low back pain, when she bends forward. There may be tingling in the buttock which she described it as ‘sciatica’.

   ·Neck pain.

   ·Tingling in right index and middle finger, and sometimes weakness. She agreed that it started some months after the subject accident, but could not recall any other injuries. She had a nerve conduction test (but not EMG as she did not want needles) 2 years ago which showed no nerve damage.

   ·Sometimes she may have pain in right shoulder.

   ·No chest pain now

   ·Depression / anxiety/PTSD –seeing a psychologist for 2 years, and a female psychiatrist

   ·Sleeps sometimes not so good, and she occasionally takes lorazepam (twice/week)

   She is independent in personal ADL and doing housework as usual.

   She may have constipation from to time, but problem in her bladder functions.

   She said at most she can sit for 30 minutes, stand for 1 hour, and walk 30 minutes.

   She can drive for 40 minutes

   Current medications

   ·Lexapro 20 mg daily

   ·Lorazepam 1 mg prn for panic attacks

   ·Propranolol 10 mg daily

   ·Panadol 2 tab daily prn

   ·Nurofen 1 tab bd prn

   Seeing a physio on and off for over 2 years

   Not seeing any occupational therapist

   Psychologist for 2 years still ongoing.

   ? has not seen any vocational rehab provider, regarding RTW.

   Sees her GP regularly prn.

   Sees a psychiatrist of Medi mind once every 3 months

   Physical Exam on 29/6/25

   Ms Nelson was orientated alert. She said she is 164 cm and weighs 110 kg, which gives a BMI of 40.9, in the obese range. Her general condition was good, with appropriate affect. She dressed and undressed independently. She could get on and off the examination couch independently. She walked independently without walk aid in a normal symmetrical gait.

   Examination of head so a faint, slightly hypo-pigmented scar of 5.5 cm long just above the left eyebrow. It was non-tender, and the claimant could locate it. It was not covered by normal clothing. There was no contour defect. The suture marks were faintly visible. There was no adherence to the underlying structure. It did not affect the movements of eyelids or the left eye. There was no effect on  any ADL and no treatment was needed.

   Smell sensation was intact. Visual fields tested by confrontation were normal and symmetrical. There was no diplopia nor nystagmus. Vision and hearing were grossly normal. There were no motor or sensory deficits in She face and head. All the cranial nerves were intact. There was no difficulty in communication, both in expression and comprehension. Romberg’s sign was normal. No abnormal cerebellar signs were elicited.

   She complained of some ringing of left ear just starting this morning. However hearing was OK, with no vertigo or nystagmus, and considering the very recent onset, it was unlikely to be causally related to the subject accident. She was advised to consult her GP.

   She is right hand dominant.

   Mental examination

   The claimant scored 30/30 in Folstein Mini-mental state examination (MMSE). She scored full scores in reverse spelling test but only 4/5 in serial-7 test. However, she still got 5/5 in attention and calculation test. She had no difficulty in alternating sequences. She drew a clock fast and well. She had no difficulty in copying figures including 3-Dimensional cubes. For the written arithmetic tests, she only attempted the addition, subtraction, and multifaction, saying division was too difficult (she normally uses a calculator). However, she only got addition and subtraction correct. She gave 3 differences and 3 similarities between apple and orange, fast and correct.

   In summary, the mental screening showed no evidence of cognitive impairment. Her difficulty in arithmetic is not uncommon if she always uses calculator for calculations. Her memory is normal, and her executive function /abstract thinking is also normal.

   Examination of neck, spine, upper and lower limbs showed no focal neurological signs or features of radiculopathy

   Cervical spine

   Examination of the neck showed mild tenderness, but no muscle spasm or guarding. There was no evidence of any non-verifiable radicular complaints. There were no motor or sensory radicular symptoms in upper limbs or evidence of radiculopathy. Active movements of cervical spine were normal. (all the measurements of the spine were measured with an inclinometer and a goniometer):

   No evidence of dysmetria (asymmetrical loss of motion) was found.

   Thoracic spine (thoracolumbar)

   Examination of the upper back showed no tenderness and no muscle spasm or guarding. There was no evidence of radiculopathy and no evidence of non-verifiable radicular complaints. Active movements of the thoracic spine were within normal limits in all directions:

   No evidence of dysmetria was found.

   Lumbar spine (lumbosacral)

   Examination of the lower back showed mild tenderness in the lower lumbar region, but no muscle spasm or guarding. There was no evidence of radiculopathy. There was no evidence of any non-verifiable radicular complaints. There were mild restrictions in movements, but no evidence of dysmetria, as follows:

   Upper extremity

   Examination of the upper limbs showed no significant scarring or deformity. There was no gross muscle wasting. Measurement of mid-arm circumferences showed the right side was 0.5cm larger than the left side, which was within normal limits, given she is right-hand dominant. Measurement of mid-forearm circumferences were equal on both sides. She complained of numbness in the fingertips of 2^nd and 3^rd fingers of both right and left hand. However, it was not confirmed with pain, touch and 2 points discrimination tests consistently. Tinel test and Phalen Test were both negative. Muscle power was Grade 5 in the upper limbs and both proximally and distally. Reflexes were normal in both upper limbs.

   There was a faint well healed scar on the left elbow, and the claimant could not remember it, probably some old scar unrelated to the subject accident.

   Examination of the shoulder showed some tenderness on the left shoulder around the trapezius muscle region but not over the glenohumeral joint or AC joint (acromioclavicular). There was mild restriction in movement of the left shoulder (All the active ranges of movement (ROM) of limbs were those of active movement and measured using a goniometer): 

   Examination of the elbows showed no deformity or swelling. Active movements of the elbows were symmetrical and within normal limits on both sides.

   Examination of the wrists, and hands showed no deformity, muscle wasting or swelling. active movements of wrists, hands and fingers were within normal limits.

   Lower extremity

   Examination of the lower limbs showed no gross muscle wasting. Measurement of  mid-thigh circumferences were equal on both sides. Measurement of mid-calf circumferences showed that left side was 0.5 cm larger than the right which was within normal limits. Muscle power was Grade 5 (normal) on both lower limbs, both proximally and distally. There was no sensory impairment in the lower limbs.

   Examination of the pelvis showed no significant deformity, abnormal mass or steps. Compression and rocking of the pelvis did not produce any pain.

   Examination of the hips showed no deformity. FABER test was normal on both sides. Active movements of the hips were within normal limits and symmetrical on both sides.

   Examination of the knees showed no deformity, swelling, or crepitation. There was no excessive anterior-posterior laxity, or medial-lateral laxity, suggesting the cruciate and collateral ligaments were intact on both sides. McMurray’s test was normal on both sides, suggesting the menisci was intact. Active movements of the knees were within normal limits.

   Examination of the ankles showed no deformity or swelling. Active movements of the ankles were symmetrical and within normal limits.

   Chest and abdomen

   Examination of the abdomen and chest were unremarkable.

   Comments on consistency

   The clinical features are consistent with the complaints.

   Review of some of the Documentation

   ·Ambulance record – “… high speed car rollover… small car on roof, airbags deployed, extensive damage to car, 6 passengers in when in crash. Pt unrestrained. Pt self-extricated, 4 pts absconded, 2 pts left on scene. Found Pt standing on scene, large laceration to forehead. O/E pt alert and orientated…Trauma: Large 7 cm deep to skull laceration above left eyebrow, oozing. Nil other deformity to face, nil broken teeth, nil haematomas to head, denies c-spine pain….. nil bruising. Nil pain to hips. All long bones intact, able to move all limbs. C/O pain to left forehead and nauseas. Nil vomits…. Transport to Westmead ED…” . GCS score was 14 on observations: unable to open left eye.

   ·Surgery in WMH: 25/6/22: left eyebrow laceration washout and debridement. 5 days Keflex was given.

   ·Tertiary survey ED recorded tenderness of left anterior aspect of shin with overlying bruising. Pulses and neurological exam were normal.

   Investigations:

   ·I could not find any PTA assessment or neuropsychological report, either in the hospital or after discharge.

   ·Claimant did not take any X-ray to the assessment.

   ·CT Brain, Facial bones and cervical spine of 25/6/22 showed no acute intracranial bleed. No calvaria fracture, no acute bony injury/facial injury. No cervical spinal fractures were seen. There was a left subcutaneous frontal laceration with no deep extension.

   ·X-ray pelvis of 26/6/22 showed no acute pathology

   ·MRI Brain of 17/12/2022 – showed no features of haemorrhage or encephalomalacia in the frontal lobe. There was evidence of left orbital wall fracture, with depression and partial herniation of the medial rectus and orbit fat. There were no definite features of entrapment.

   Diagnosis

   ·Head - post-concussion syndrome - mild traumatic brain injury.

   Apparently both driver and the passengers (including the claimant) were under the influence of alcohol at the time of accident. There was no definite recorded LOC. GCS was 14 at the scene, but it was likely that the eye opening (part of the GCS scoring test) was affected by the left eye laceration. Given the benefit of doubt to the claimant, according to the principle of benevolence, the Panel accepted that the initial GCS was 14. Apparently no PTA assessment  was done in ED or in the hospital, and no neuropsychological assessment was available. Clinically no PTA symptoms were recorded. CT scan brain was normal. MRI showed left orbital wall fracture. Therefore, the Panel accepted that there might be a mild traumatic brain injury.

   ·Skin Scarring - Facial laceration

   There was a scar over the left eyebrow, but no other scar found on the face or body there was causally relate to the subject accident. The scarring over the left elbow might not related to the accident.

   ·Chest - Tension in the neck.

   There was no evidence chest injury sustained in the accident. The claimant could not recall any chest injury. Clinically any STI to the chest has settle if ever present.

   ·Right Hand - Sensation in the median nerve distribution of the right hand.

   The numbness of the fingertips of both right and left 2^nd and 3^rd fingers were not consistent with median nerve neuropathy. There was no definite motor or sensory loss in the upper limbs.

   ·Cervical Spine - Signs of soft tissue injury with no radiculopathy.

   It was possible there might be STI to the neck, but there was no radiculopathy, considering the criteria of radiculopathy as listed in section 6.138, Motor Accident Guidelines (version 9.3) (Guidelines): there is no loss or asymmetry of reflexes, no positive nerve root tension sign, no muscle atrophy, no muscle weakness or reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.

   ·Lumbar Spine - Signs of soft tissue injury, in the nature of asymmetric loss of range of motion, but no radiculopathy.

   It was possible there might be STI to the lower back, but there was no radiculopathy, considering the criteria of radiculopathy as listed in section 6.138, Motor Accident Guidelines (version 9.3) (Guidelines): there is no loss or asymmetry of reflexes, no positive sciatic nerve root tension sign, no muscle atrophy, no muscle weakness or reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.

   There were mild but symmetrical restrictions in movement of lumbar spine, but no dysmetria.

   ·Right Shoulder - Impaired range of movement

   Movements of shoulders were normal. There was no evidence of right shoulder injury sustained in the subject accident

   Permanent impairment Assessment

   Brain injury assessment

   As discussed above, it was possible that there might be mild traumatic brain injury (TPI). According to section 6.160, Guidelines, the Panel needed to consider 4 categories. There was no aphasia or communication disorders, and no disturbance of consciousness and awareness. Therefore, The Panel only need to assess She “mental status and integrative functioning abnormalities”.

   According to section 6.164, Guidelines, to assess mental status and integrative function abnormalities some prerequisites have to be satisfied. In this case, apparently there was a high velocity impact and the car rolled over, and the initial GCS was 14/15; therefore the prerequisite criteria have been satisfied.

   Brain injury is assessed according to paragraphs 6.156 to 8.176 and Table 6.9 to 6.10, Motor Accident guidelines, (Guidelines).

   Cognitive impairment is assessed with Modified Clinical Dementia Rating (CDR) scale, according to para 6.164 to 6.170, and Table 6.9, Guidelines as follows:

   ·There is no definite memory loss or only slight inconsistent forgetfulness and does not interfere with everyday activities, and the memory impairment was not confirmed by neuropsychological assessment; therefore, Memory score is none (M=0)

   ·She is fully orientated; therefore, Orientation score is none (O=0)

   ·She has no problem in abstract thinking, solving everyday problems, similarities and differences. Therefore, judgement and problem solving score is none (JPS=0)

   ·She is independent in job, shopping and social groups, although She reported She goes out a bit less often than before. Therefore, Community affairs score is questionable (CA=0.5)

   ·She continues life at home and hobbies interests are well maintained. Therefore, Home and hobbies score is none (HH=0)

   ·She is fully capable of self-care. As most other scores are 0, according to para 6.168, She personal care score should be none (PC=0).

   Since most secondary scores are the same as She M score, CDR=M=0

   According to Table 6.10, CDR 0 will have 0% WPI (whole person impairment).

   Emotional and behavioural disturbance

   She has some anxiety features but that was due to psychological injuries and pre-existing anxiety which should be assessed by the psychiatrist assessor. The mental status and integrative functioning were assessed 0% WPI, with normal CT and MRI brain scan, it is very unlikely that the psychological symptoms were caused by organic brain injury.

   Scarring

   The panel will assess the face scar impairment but not the left elbow scar

   Scarring is assessed using section 6.258 to 6.267, Guidelines, and the TEMSKI scale, Table 6.18, Guidelines.

   The claimant is conscious of the scar, she can locate the scar, there is colour contrast with the surrounding skin. There was no trophic changes, but suture marks are faintly visible. There was no contour defect. I did not affect the ADL. Anatomically it is visible with normal clothing. No treatment is required, and no adherence. Using the principle of best fit, the Panel assessed the impairment as 1% WPI.

   Cervical spine

   The neck injury is assessed using the Diagnosis Related Estimate (DRE) method from Chapter 3.3h, AMA 4.

   There is some tenderness but no muscle spasm or guarding. There was no dysmetria. There was no non-verifiable radicular complaints. There was no evidence of radiculopathy. There are no other symptoms or signs that will put her into DRE 2 category. Therefore, it is classified as DRE I. According to table 73, AMA4 it corresponds to 0% WPI.

   Lumbar spine

   The lumbar injury is assessed using the Diagnosis Related Estimate (DRE) method.

   There is some tenderness but no muscle spasm or guarding. There were mild and symmetrical restrictions in movements but no dysmetria. There were no non-verifiable radicular complaints. There was no evidence of radiculopathy. There are no other symptoms or signs that will put her into DRE 2 category. Therefore, it is classified as DRE I. According to table 72, AMA4 it corresponds to 0% WPI.

   Total permanent impairment is 1% WPI”

FINDINGS

1. The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[6]

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

2. The Panel is not required to choose between medical opinions and is required to form its own opinions.[7] The Panel adopts the findings and opinions of the Medical Assessors who concur with one another. The Panel wishes to add the following further reasons.

   [7] Allianz Australia Group Limited v Keen [2021] NSWCA 287 and Insurance Australia Group Limited v Marsh [2021] NSWCA 31.

3. The Medical Assessors found no evidence of injury to the chest, right shoulder or right hand.

4. As to the right hand, the claimant agrees that symptoms did not commence until some months after the subject accident. In the Medical Assessors’ opinion, those symptoms are not consistent with a median nerve compression.

5. As stated in the examination report, the claimant could not recall any injury to the chest.

6. As to the right shoulder, the Panel accepts there is considerable weight in the insurer’s submissions (summarised at paragraph 14 above). As stated in the examination report, the Panel finds no medical evidence of right shoulder injury. Even having regard to the mechanism of injury, the Panel is not satisfied, as a matter of non-medical factual determination, that the claimant suffered an injury to her right shoulder in the accident. That is because of the matters to which the insurer refers in its submissions (above) which are not controversial. Those were Medical Assessor Cameron’s reasons for his causation findings, in relation to injuries to the right hand and right shoulder, which the Panel adopts.

7. If the Panel is wrong in that finding, it notes that the claimant now has a full range of movement in the right shoulder, with no assessable permanent impairment.  

8. The Medical Assessors have explained the basis and rationale of their assessments and findings. They are similar to the findings and opinions of Medical Assessor Cameron and
   Dr Andrew Keller. The impairment assessments made by the Medical Assessors vary to those made by Dr Dryson because his physical examination findings vary to those made by the Medical Assessors as also was the case with Dr Keller’s physical examination findings.

9. The medical assessment of permanent impairment is made at the time of examination. In that respect, the assessment made by Dr Dryson is outdated, and does not reflect current symptomatology, in the Medical Assessors’ opinion. The Medical Assessors differ with Medical Assessor Cameron only in relation to their assessment of impairment arising from scarring using the TEMSKI scale.

CONCLUSION 

1. For the above reasons, the Panel concludes the Certificate dated 1 December 2024 should be revoked. The new Certificate appears at the commencement of these reasons.