Nyarkoa v Allianz Australia Insurance Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Nyarkoa v Allianz Australia Insurance Limited [2024] NSWPICMP 318
CLAIMANT:	Abena Nyarkoa
INSURER:	Allianz
REVIEW PANEL
MEMBER:	Ray Plibersek
MEDICAL ASSESSOR:	Thomas Rosenthal
MEDICAL ASSESSOR:	Drew Dixon
DATE OF DECISION:	20 May 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant was injured when her car was hit from behind whilst turning into a driveway; she received injuries to her spine, shoulders, knee and leg; also claimed for treatment and care for a right shoulder rotator cuff surgery; the Panel found a total whole person impairment of 0%; as a result of the accident the claimant sustained a number of soft tissue injuries including bilateral knee sprain and lumbar spine; no evidence of significant structural damage or injuries shown to spine, shoulders, knees, legs or hands caused by the motor accident; GP records show that claimant has a significant past history of injury and disability including bilateral knee replacements; workplace accident in 2001 where claimant fell down some stairs and injured her left leg and knee; claimant’s GP records also show a history of shoulder and back complaints prior to the subject motor accident; Panel also found that the proposed right shoulder rotator cuff repair did not relate to the injury caused by the motor accident and was not reasonable and necessary; Held – original medical certificate set aside regarding permanent impairment; original medical certificate affirmed regarding proposed right shoulder rotator cuff surgery.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Clive Kenna dated 3 May 2023 regarding permanent impairment. 2. The Review Panel issues a new certificate determining that: (a) the following injuries were caused by the motor accident and give rise to a permanent impairment of 0%which is not greater than 10%: · cervical spine – soft tissue injury, and · lumbar spine – soft tissue injury. (b) The following injuries were not caused by the motor accident : · right shoulder – soft tissue injury, and · left shoulder – soft tissue injury. (c) The following injuries caused by the motor accident have resolved and do not result in a permanent impairment: · thoracic spine – soft tissue injury; · left hand – soft tissue injury; · left leg – soft tissue injury, and · bilateral knees – soft tissue injury. 3. The Review Panel affirms the certificate of Medical Assessor Clive Kenna dated 3 May 2024 regarding treatment and care. 4. The following treatment and care of a: · a right rotator cuff repair and biceps tenodesis as requested by Dr Baba on 13 July 2021, does not relate to the injury caused by the motor accident. 5. The following treatment and care of a: · a right rotator cuff repair and biceps tenodesis as requested by Dr Baba 13 July 2021, is not reasonable and necessary in the circumstances.

REVIEW PANEL REASONS FOR DECISION

INTRODUCTION

On 28 October 2020 Abena Nyarkoa (the claimant) was the driver of a vehicle. She was turning left into a driveway when she was struck from behind. The other vehicle failed to stop and the other driver left the scene after the collision.
In his personal injury claim form Ms Nyarkoa says that as a result of the accident she sustained numerous injuries.[1] She described her injuries as being to her back, waist and knees.
[1] Insurer’s bundle R 2 p 13.
Ms Nyarkoa has brought a claim for common law damages under the Motor Accident Injuries Act 2017 (the MAI Act).
Allianz Australia Insurance Limited (the insurer) is the relevant insurer with liability to pay any damages to Ms Nyarkoa under the MAI Act.
Section 4.11 of the MAI Act provides that there is no entitlement to damages for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%.
This dispute is in relation to whether the degree of permanent impairment sustained by Ms Nyarkoa as a result of the injury caused by the accident is greater than 10%. This constitutes a medical assessment matter pursuant to Schedule 2, cl 2 of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[2]
The dispute as to permanent impairment and assessment of treatment and care was referred to Medical Assessor Clive Kenna. He assessed Ms Nyarkoa on 12 April 2023 and issued a certificate dated 3 May 2023.
Medical Assessor Kenna assessed the degree of permanent impairment and found that the injuries caused by the motor accident did not result in permanent impairment greater than 10%. Medical Assessor Kenna found that soft tissue injuries experienced by the claimant to the cervical spine, thoracic spine, lumbar spine, left shoulder, left hand, left leg and bilateral knees were caused by the accident and gave rise to permanent impairment of 0%.
Medical Assessor Kenna also found that treatment and care of a right rotator cuff repair and biceps tenodesis as proposed by Dr Baba 13 July 2021 does not relate to the injury caused by the accident and is not reasonable and necessary in the circumstances.
Ms Nyarkoa has sought a review of the certificates of Medical Assessor Kenna.

REVIEW PROCEDURE

[2] Section 7.20 of the MAI Act.

An application for review of the medical assessment of Medical Assessor Kenna was lodged within 28 days of the date on which the certificate of was made available to the parties.
On 26 July 2023, the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).
The grounds for review advanced by the claimant included that the Medical Assessor erred in his determination that the claimant’s right shoulder injury was not caused by the subject accident.
RELEVANT LEGAL AUTHORITY
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
2.     “6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
3.     'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
4.1.      The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
5.2.      The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'”
6.     This, therefore, involves a medical decision and a non-medical informed judgement.
7.     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.”
In Norrington v QBE Insurance (Australia) Ltd[3] Brereton J addressed the presence or absence of a contemporaneous record of complaint in the determination of causation stating at [31]:
“In the context of medical assessment under MACA, there is now a substantial body of authority that a panel which decides the question of causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury fails properly to address the questions posed by s 58(1), and that this is jurisdictional error.”
[3] [2021] NSWSC 548, Norrington.
Brereton J referred to the decision of Campbell J in Owen v Motor Accidents Authority (NSW)[4] where it was noted that the failure of a treatment provider to make a record of complaint should not be treated as decisive where:
8.“…busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury: Davis v Council of the City of Wagga Wagga[2004] NSWCA 34 at [35]).”
[4] [2012] NSWSC 650, Owen.
In Norrington Brereton J followed the decision of the Court of Appeal in AAI Limited v McGiffen[5] where the Court stated at [64]:
9.“The question that the review panel was required to address was not simply whether there was any contemporaneous evidence of complaint about an injury to the lumbar thoracic spine. It included whether Mr McGiffen’s lumbar thoracic spinal injury was causally related to the ‘gait derangement’, itself caused by the accident. That is, was the accident a contributing cause of a lumbar thoracic spinal injury by reason of the gait derangement caused by the accident.”
[5] [2016] NSWCA 229, McGiffen.
Even more recently In Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance[6] Justice Walton set aside the decision of a Medical Review Panel. In considering the question of causation in relation to an amputated toe Justice Walton concluded that the question was not whether there was any contemporaneous evidence or corroborative evidence to support the injury but whether the motor vehicle accident materially contributed to that injury.
[6] [2021] NSWSC 804, Kinchela.
The Panel also notes that when considering the issue of causation of injury it had regard to the recent decision in: AAI Limited t/as AAMI Limited v Jacobs [2024] NSWSC 371. In Jacobs the insurer argued that the medical assessor had disregarded all of the contrary views so that the causation issues had not been properly dealt with. In response the claimant submitted that the Medical Assessor found there had been physical injuries which in turn caused psychiatric injuries. The court then held that the medical assessor had considered the whole of the material before him and had subsequently reached a conclusion that was available to him. His Honour stated that:
“In other words, it is obviously not enough to simply consider one side’s material, but that does not mean that every dispute in the material needs to be described and particularly resolved. This, albeit imperfect, assessment did look at both sides and did reach a conclusion, including specifically on causation.”[7]
ASSESSMENT UNDER REVIEW
[7] Per Elkaim AJ at [45]-[46]. Refer also to Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372 and Briggs v IAG Limited Trading as NRMA Insurance [2024] NSWSC 3 (No. 3), at [39], [41]-[44].
The dispute was referred to Medical Assessor Kenna who assessed Ms Nyarkoa on 12 April 2023 and issued a certificate dated 3 May 2023.[8]
[8] Claimant’s Bundle A 2.
Medical Assessor Kenna assessed the degree of claimant’s permanent impairment and found that the injuries caused by the motor accident did not result in permanent impairment greater than 10%. Medical Assessor Kenna found that soft tissue injuries experienced by the claimant to the cervical spine, thoracic spine, lumbar spine, left shoulder, left hand, left leg and bilateral knees were caused by the accident and gave rise to permanent impairment of 0%.
Medical Assessor Kenna also found that treatment and care of a right rotator cuff repair and biceps tenodesis as proposed by Dr Baba 13 July 2021 does not relate to the injury caused by the accident and is not reasonable and necessary in the circumstances.
The injuries referred for assessment by the Personal Injury Commission (Commission) were described as follows:
•       cervical spine – soft tissue injury/ disc bulge at C4/5 with radiculopathy;
•       thoracic spine – soft tissue injury/ musculoligamentous sprain with radiculopathy;
•       lumbar spine – soft tissue injury/ musculoligamentous sprain/disc bulges at L4/L5 and L5/S1 with radiculopathy;
•       Left shoulder – rotator cuff injury/ referred pain from neck
•       right shoulder – tear of rotator cuff and bicep tenodesis / referred pain from neck;
•       left hand – soft tissue injury;
•       left leg – soft tissue injury, and
•       bilateral knees – soft tissue injury/ musculoligamentous sprain.
Medical Assessor Kenna found that the accident caused the following range of injuries:
“….. she sustained a range of soft tissue injuries involving the cervical and lumbar spine, initially with complaints of left hand, knees and shoulders, although some of these are subsequently in dispute, noting she had a significant history of knee problems previously, arthritis, which resulted in bilateral knee replacements several years earlier. Whilst she complained of some increasing discomfort post-accident, it appears that that subsequently has subsided, as noted in the latest pain pattern diagram drawn by the claimant.
With regards to the lumbar spine, her complaint there is one of centralised low back pain, no referral into either leg, and no symptoms involving the left leg.
Clinical examination indicated any initial soft tissue injury to the left leg has since resolved.
Similarly pertaining to both knees, she had full range of movement as noted into extension, no muscle wasting or atrophy and a reasonable gait.
Similarly pertaining to the left hand, there was nothing to find. She had normal in comparison to the right.
Her complaint therefore relates to the cervical spine, which I have noted and accept was causal. There is no evidence of radiculopathy involving either upper extremity.
Pertaining to the shoulders, she complains of bilateral shoulder pain. In dispute clearly is the right shoulder where there was no clear mention of such for at least 4-6 months post motor vehicle accident. That clinical examination indicates full movement of the left shoulder but some restricted movement pertaining to the right, as listed in the report.
In that respect, I would consider that the left shoulder whilst injured in the motor vehicle accident has since affected a good recovery and she has no restricted range of movement, although she remains symptomatic in part.
However pertaining to the right shoulder, I consider that this is non-causal for the reasons as explained in the report, in that onset was only noted or commented on pertaining to the right shoulder some 4- 6 months post motor vehicle accident.
It was then she was referred through to Dr Baba who recommended an operative procedure, but as noted from the findings, most of the radiological findings on MRI and ultrasound were indicative of degenerative change.
In that respect, I consider the right shoulder is non-causal and when asked about such, the request for surgery, she states that she wouldn’t be prepared to have the surgery anyway.
I am of the view therefore that it is non-causal and therefore the request is neither reasonable nor necessary.”
Medical Assessor Kenna found that the following injuries were caused by the motor accident: cervical spine soft tissue injury; thoracic spine soft tissue injury; lumbar spine soft tissue injury; left shoulder soft tissue injury; left hand soft tissue injury; left leg soft tissue injury and bilateral knees soft tissue injury.
Medical Assessor Kenna also found that the following injuries were not caused by the motor accident: right shoulder soft tissue injury.
Medical Assessor Kenna found that the following injuries caused by the motor accident: thoracic spine soft tissue injury, left hand soft tissue injury; left leg soft tissue injury and bilateral knees soft tissue injury.
Medical Assessor Kenna assessed the claimant with a 0% of permanent impairment caused by the motor accident.
Medical Assessor Kenna also found that treatment and care of a right rotator cuff repair and biceps tenodesis as proposed by Dr Baba 13 July 2021 does not relate to the injury caused by the accident and is not reasonable and necessary in the circumstances.

EVIDENCE BEFORE THE REVIEW PANEL

The Panel issued Directions to the parties on 4 October 2023 requesting the claimant to attend for a re-examination by the medical assessors on the panel.
The Panel noted that each party had filed an indexed, paginated bundle of documents.
The Panel notes that the claimant’s treating general practitioner (GP) Dr Latif refers to a number of ultrasounds and CT scans performed on the claimant. Unfortunately details of these ultrasounds and CT scans results were not included in the bundles of evidence supplied to the Panel by the parties. The Panel notes that some of this radiological evidence appears to have been available to at least the insurer because it is referred to in the insurer’s internal review decision-making reasons. This lack of radiological information has hampered the Panel in its assessment of the claimant’s pre-accident medical condition.
The claimant and insurer have filed with the Commission over 400 pages of hospital notes, clinical doctors’ notes, rehabilitation notes and medico-legal reports. The Panel has carefully reviewed and taken these notes and medical records into account but has not attempted to summarise or detail all of the medical records in these reasons. A small number of these records relate to medical conditions that are not relevant to the issues before this Medical Review Panel the Panel have not summarised those records in these reasons.
The Panel also notes the insurer’s submissions that in Roger v De Gelder [2015] NSWCA 211, the Court of Appeal determined that the statutory obligation of a Medical Assessor is to review the evidentiary material placed before him/her in order to determine whether the degree of permanent impairment to the injured person caused by the motor accident is greater than 10%. The statutory duty does not go so far as to impose a precise obligation to consider and discuss every piece of evidence placed before the Medical Assessor.
Pre-accident treatment medical evidence
New Granville Medical Centre
The pre-accident medical evidence in the records of the new Granville Medical Centre show that Ms Nyarkoa reported a history of previous injuries.[9]
[9] Claimant's bundle A3 pp 35-95.
On 17 January 2001 while working as a nursing assistant the claimant reported slipping down some stairs at work and twisting and injuring her left knee.
Throughout 2001 and 2012 the claimant had a number of consultations and treatments with her treating GP Dr Wafik Latif about her painful and swollen left and right knees. On a number of occasions, Dr Latif advised the claimant that she seek a review from an orthopaedic surgeon for an arthroscopy and debridement.
On 25 June 2002 the claimant reported to Dr Latif that she had stiffness in the neck and painful movements.
On 22 December 2006 the claimant complained of pain over the low back pain over the right foot. Dr Latif noted right-sided sciatica and suggested a CT scan of the lower spine.
On 2 July 2009, the claimant complained of right shoulder pain with restriction. The claimant complained of pain over the right shoulder and arm area, elevation of shoulder restricted painful tenderness over right upper shoulder area and joint currently on Naprosyn (anti-inflammatories ).

On 23 February 2012 Dr Latif recorded an aggravation of right knee pain seen at emergency given analgesia and considered surgery.
In November 2013 Dr Latif noted that the claimant had a total right knee replacement.
In December 2014 Dr Latif noted that the claimant had a total left knee replacement.
On 4 August 2017 Dr Latif noted that the claimant complained of pain over the left shoulder area down to the left upper arm for one month, no recent injuries or falls over shoulder. Examination showed tenderness over the upper arm shoulder arc to 90°, painful restricted rotation and abduction.
On 10 August 2017 Dr Latif reviewed the results of the left shoulder ultrasound which showed a partial-thickness SS, tendinitis and bursal thickening. Steroid injection.
On 6 September 2017 Dr Latif noted that the claimant was still complaining of pain over the left shoulder after having the steroid injection 20 days ago. Pain over upper half left arm. Examination showed arc 90°, limited abduction and external rotation. Continue conservative management.
On 13 October 2017 Dr Latif noted the claimant was still complaining of a painful left shoulder.
On 24 July 2018 Dr Latif noted complaints of left heel pain with a diagnosis of planter fasciitis with a calcified spur on the left heel.
On 15 February 2019 Dr Latif noted severe pain down the right thigh to the lateral aspect of the right leg. He also noted obesity and movements difficult. Right-sided sciatica pain.
On 21 February 2019 Dr Latif noted CT lumbar spine on 18 February 2019. Diagnostic imaging requested CT guided. Neural injection right L4/L5 facet joint, right L4 nerve root exit lower back pain right radicular pain. Please refer to CT scan report. On 15 March 2019 Dr Latif noted the claimant continued to have pain over the right thigh seen at emergency given Endo which is not helping. Known to have sciatic pain. Waiting for injection L4 on 26 March. Examination showed tenderness of lower back. Movements painful. Restricted right side.
On 23 April 2019 the claimant was still complaining of pain over the right side despite having injection into right L4 nerve root last month. Right sciatic pain.
On 2 July 2019 Dr Latif recorded that the claimant presented to emergency at Liverpool Hospital two weeks ago with pain over the right-sided abdomen and right-sided back and right side. Dr Latif noted that diagnostic imaging was requested CT scan thoraco lumbar spine – pain over right upper abdominal area referring to back area and down to lower abdomen and thigh.
On 10 October 2019 Dr Latif recorded that the claimant was still complaining of pain over the lower back referring to the right lower leg. He made a request for diagnostic imaging with a CT-guided steroid facet joint injection at the right L4/L5 level. He noted right radicular lower back pain with facet joint arthropathy with impingement over the right L4 nerve root.
Post-accident treating medical evidence
The claimant went to Liverpool Hospital shortly after the accident. There are no hospital notes produced to the Panel. Ms Nyarkoa told Medical Assessor Kenna that police attended but not an ambulance. She subsequently went to Liverpool Hospital where she was observed and then discharged on the same day.
The post-accident medical evidence records of the new Granville Medical Centre show that Ms Nyarkoa continued to report to her treating GP Dr Latif.
On 29 October 2020 Dr Latif noted that the claimant had a motor vehicle accident. She reported being the driver being struck on turning into her driveway. She was hit by another car from the back pushing her car to the neighbour's driveway breaking the fence. The other car did not stop, police called, no paramedic attendance no loss of consciousness went to Liverpool Hospital. Went to emergency, X-rays with no fractures no major injuries. Complains of generalised ache and feeling weak.
On 7 December 2020 Dr Latif recorded the claimant complaining of low back pain since the accident, pain across lower back, waist and back of thighs. On examination claimant overweight accentuated lumbar curve no scoliosis tender across lower back movements restricted by weight and pain. Diagnostic imaging requested CT scan of spine. Pain across lower back referring to waist and back of thighs following history of motor vehicle accident on 29 October.
On 8 December 2020 Dr Latif reviewed the CT scan of the spine. This showed degenerative changes and foraminal exit narrowing due to facet joint hypertrophy in capsular thickening of the facet joints, mild the effacement of the right L5 nerve root.
On 22 December 2020 Dr Latif noted that the claimant was still complaining of feeling generalised pain over her body and bones. Mainly her lower back and her waist. Not able to sleep well at night. Still suffering for past trauma anxiety – to start trying to drive across her area.
On 4 January 2021 Dr Latif recorded the claimant complaining of pain and crackling feeling over both knees following the accident. On examination he noted scars of previous total knee replacement bilateral. Minor capitation, knee flexion and extension painful.
On 29 January 2021 Dr Latif recorded the claimant complaining of feeling like electric shocks over the left upper and lower limbs over the past three weeks does not come frequently. Once every three days. Cramps over left-hand sometimes also complains of neck pain.
On 2 February 2021 Dr Latif recorded the claimant complaining of generalised anxiety, insomnia and recollection thoughts of the accident still unable to drive. Arrange for psychological referral.
On 11 February 2021 Dr Latif recorded that the claimant had osteoarthritis with mild narrowing exit foramen C4/C5. The claimant reported still having pain over the neck and lower back.
There are two certificates of capacity from Dr Latif.[10] In the certificate dated 7 January 2021 Dr Latif's diagnosis of the motor accident related injuries are muscular ligamentous sprain injuries lower back, bilateral knee sprain. Another certificate of capacity is dated 5 May 2022. This certificate has a diagnosis of muscular ligamentous sprain injuries lower back, bilateral knee strain. Late presentation of right shoulder pain and injuries with tendinopathy, bursitis, impingement and the acromioclavicular (AC) joint arthrosis (27 April 2021).
[10] Insurer’s bundle R 8 and R 9 pp 38-44.
In a report dated 29 October 2021 Dr Latif noted that shoulder movements were normal.
In a report dated 7 July 2021 Dr Baba the claimant's treating shoulder surgeon Dr Mohammed Baba wrote that the claimant is presenting with a right shoulder pain and dysfunction. She states her symptoms started approximately four or five months ago when she had a car accident where she was rear-ended when she was turning. Ever since then she has had shoulder pain and dysfunction. She has inability to use the arm for normal activities of daily living. She has pain in the right shoulder the pain is throughout her whole the following shoulder. There is no radiation.
On 13 July 2022 Dr Baba wrote to the insurer. He stated that the claimant's MRI results show a rotator cuff tear and some tendinitis in the biceps stop Dr Baba recommends operative intervention of rotator cuff repair and biceps tenodesis.

Medico-legal evidence
X-ray, CT scan and MRI evidence

Dr Latif’s notes refer to a number of ultrasounds and CT scans performed on the claimant. Unfortunately details of all ultrasounds and CT scans results are not included in the copy of the bundles of evidence supplied to the Panel by the parties. The following are a list of some of the ultrasounds and CT scans performed on the claimant referred to by Dr Latif in his notes which have not been produced by the parties:
·        on 10 August 2017 Dr Latif referred to the results of an ultrasound of the left shoulder;
·        on 18 February 2019 here was a CT of the lumbar spine performed with a guided injection;
·        on 2 July 2019 Dr Latif recorded that the claimant presented to emergency at Liverpool Hospital with right sided pain. At that time his notes show that he requested a CT scan of the thoracic lumbar spine, and
·        on 10 October 2019 Dr Latif made a request for diagnostic imaging with a CT guided steroid facet joint injection at the right L4/L5 level.
There is an ultrasound of the right shoulder performed on 28 April 2021 by Dr Nazanin Zarerad. The report has clinical notes: unprovoked right shoulder pain. The report comments: subscapularis tendinopathy and supraspinatus posterior fibres tendinopathy and full-thickness anterior and middle fibres tendon tear. The report suggests that an ultrasound-guided steroid injection could be performed if clinically required.
On 4 May 2021 a right shoulder steroid injection was performed. The clinical notes are: bursitis. Under ultrasound guidance 1ml of Celestone Chronodose mixed with 1ml of 0.5 Marcaine was injected into the bursa overlying the supraspinatus on the right side.
There is an MRI right shoulder scan dated 12 July 2021 by Dr Niranjan Ganeshan.[11] The report notes Hypertrophic degenerative AC joint arthropathy with an effusion synovitis and articular surface oedema as well as osteophytic lifting. Severe tendinosis near the rotator interval a tear of the rotator cable and biceps pulley subscapularis intermediate grade partial thickness delaminating with partial thickness tear measuring up to 23mm in length and 12mm in height. There is no full-thickness retracted tear. There is a complete retracted tear of the supraspinatus and the infraspinatus with a retraction of up to 25mm. There is severe fraying and irregularity of the retracted tendon margin with background tendinosis. There is an irregular signal at the biceps anchor consistent with a degenerative superior labrum anterior and posterior (SLAP) tear.
[11] Claimant’s Bundle A 4 pp 123-124.
Dr Niranjan Ganeshan’s conclusion is: hypertrophic AC joint arthropathy. Florid subacromial/ subdeltoid bursal inflammation. Long head of biceps tendinosis and tenosynovitis. Tear of the rotator cuff cable and biceps pulley. Partial-thickness delaminating subscapularis tear with background tendinosis. Complete retracted supra and infraspinatus tears with background tendinosis. Volume and mild fatty permeation of the subscapularis supra and infraspinatus muscle bellies.
An ultrasound on 28 April 2021 referred to the reason for the ultrasound being recorded as “unprovoked right shoulder pain”. Subsequently, there was ultrasound confirmed background of degenerative changes with features of osteoarthritis involving the acromioclavicular joint. No reference in that was made either to the accident or any acute trauma to the shoulder.

SUBMISSIONS

Claimant’s submissions
The claimant’s solicitors made detailed submissions dated 9 June 2023.[12]
[12] Claimant’s bundle A 1.
The claimant’s submissions listed five grounds of appeal.
The submissions contend that Medical Assessor Kenna did not correctly and properly assess the claimant’s physical injuries in particular the right shoulder injury. They submitted that throughout his statement of reasons Medical Assessor Kenna made inconsistent statements about when the claimant first reported the injury to her right shoulder. The claimant says that Medical Assessor Kenna’s comments about delay are incorrect and misleading. The claimant submissions refer to a number of medical reports noted by her treating GP Dr Latif reporting her upper body and right shoulder complaints.
The claimant submits that she did not delay in reporting her right shoulder pain until around April 2021. The claimant submits that she initially complained about her primary pain and injuries stemming from her back and neck pain stop there is no doubt that the claimant suffered a right shoulder injury as was confirmed by radiological scans in early 2021.
The claimant refers to an ultrasound of the claimant’s right shoulder dated 28 April 2021 and an MRI scan of the right shoulder dated 12 July 2021 which show full thickness tendon tears and bursal impingement.
The claimant argues that there is no objective evidence of pre-accident injury which should not be considered. Medical Assessor Kenna has not considered the entirety of the claimant’s medical evidence considering the nature and cause of her injuries and the Medical Assessor is not apply the correct test and principles with respect to the issue of causation.
Regarding the treatment dispute, the claimant refers to a letter from Dr Baba dated 13 July 2021 which refers to the MRI results show a rotator cuff tear and some tendinitis in the biceps. This demonstrates that the claimant’s right shoulder injury was caused by the subject accident. The claimant also submits that the right shoulder surgery is reasonable and necessary.
The claimant then made submissions about her cervical spine. The submissions refer to the diagnosis-related estimate (DRE) category, the Medical Assessor Table 7 of the Motor Accident Permanent Impairment Guidelines and the DRE descriptors on pages 103-105 of the AMA 4 Guides and Clause 1.138 of the Motor Accident Permanent Impairment Guidelines.
The claimant’s medical records confirm that the claimant has suffered a chronic injury to the region of the cervical spine with radiculopathy. It is submitted that Medical Assessor Kenna has not properly considered the full medical evidence, to which he would have identified (at the very least) two signs of radiculopathy in accordance with clause 1.138 of the Motor Accident Permanent Impairment Guidelines.
Regarding the lumbar spine, the claimant submits that the medical evidence provided to the Assessor at the time of assessment, as well as the physical examination of the claimant, shows that the above criteria for radiculopathy has been met to classify the claimant within Lumbosacral Category 2 (at the very least). The claimant submits that her lumbar spine injury should be assessed as DRE Category II or III.
Finally, the claimant submits that the total correct whole person impairment that should be awarded to the claimant is 18%.
Insurer’s submissions
The insurer’s solicitor provided two written submissions dated 29 June 2023 and 24 August 2022.[13]
[13] Insurer’s bundle R 1 and R 2.
In the submissions dated 29 June 2023 the insurer submits that the claimant takes issue with the right shoulder injury, the cervical spine, lumbar spine and whether or not the right shoulder surgery was reasonable and necessary.
The insurer submits that Medical Assessor Kenna did not make inconsistent statements about when the claimant first reported injury to her right shoulder. The insurer submits that Medical Assessor Kenna took a careful history of the claimant’s right shoulder pain incorrectly referred to the absence of any reporting of right shoulder pain in the application for personal injury benefits or other reports dated one April and 31 May 2021.
Regarding the issue of treatment and care for the right shoulder rotator cuff repair, insurer submits because the Medical Assessor had determined that the right shoulder condition was not caused by the motor vehicle accident it is self-evident that the requested treatment and care was not reasonable and necessary. Medical Assessor Kenna also noted that when asked the claimant said she would decline to have the surgery on her right shoulder.
The insurer notes the claimant’s submission about the claimant’s muscle guarding and comments that under the guidelines the evaluation should only consider the impairment as it is at the time of the assessment. The insurer submits that Medical Assessor Kenna recorded his detailed findings on examination of the claimant’s cervical spine and, consistent with the Guidelines, that examination showed the impairment was 0%
In the insurer’s submissions dated 24 August 2022 the insurer made submissions about each of the claimant’s injuries.
Regarding her neck injury the insurer noted that the claimant first saw her local doctor the day after the accident who recorded that her cervical spine was normal. The first mention of neck pain was on 29 January 2021 and the next reference to her neck appeared on 11 February 2021. There was no evidence which would suggest the presence of radiculopathy.
The insurer submits it’s not clear what injury the claimant says she suffered in her mid-back.
Regarding her lower back in the insurer submits that the only reference to radiculopathy within the clinical records was prior to the subject motor accident on 15 February and 10 October 2019.
Regarding the injury to the left shoulder prior to the motor accident there is a reference on 4 August 2017 in her GP records to left shoulder pain over the upper arm for one month.
Regarding the right shoulder injury GP records on 29 October 2020 note that shoulder movements were normal. On 27 April 2021 the GP recorded the claimant complaining of recurrent pain over the right shoulder for two weeks which was unprovoked. In a GP visit on 4 May 2022 her GP recorded late presentation of shoulder pain.
Regarding the injury to the left hand the claimant's GP Dr Latif recorded on 29 January 2021 cramps over the left hand sometimes. The insurer submits that there was no other reference to any left-hand injury after that date. Although the claimant's GP noted on 17 September 2002 that the claimant complained of numbness over her left hand at night.
The insurer submits but there is no reference to any left leg injury sustained in the subject motor accident contained within the GP's clinical records although there is a detailed record of the claimant sustaining an injury to a left leg on 18 January 2001 when she slipped going down some stairs at work.
The Insurer submits that that prior to the accident there was a longstanding history of knee problems for which the claimant ultimately submitted to surgery. Indeed, throughout the GP’s clinical records there was considerable reference to ongoing problems with her knees, the most recent prior to the accident being on 21 May 2019.

MEDICAL EXAMINATIONS

On 13 December 2023 Ms Nyarkoa attended for re-examination at Medical Assessor Dixon’s rooms in Hornsby. Medical Assessor Thomas Rosenthal was connected via Microsoft Teams to attend the re-examination.

HISTORY

Ms Nyarkoa confirmed the previous history given to Medical Assessor Kenna.
She was involved in a motor vehicle accident on 28 October 2020. She was the driver of a vehicle. She was turning left into a driveway when she was struck from behind. The other vehicle failed to stop and left the scene. She subsequently attended Liverpool Hospital where she was examined and discharged on the same day. She later attended her GP, Dr Wafik Latif.
Initial complaints were in regards to lower back pain and some neck pain. She indicated she also complained of shoulder pain. It was noted to her that no shoulder symptoms were recorded in the GP records when she attended on 29 October 2020, 7 December 2020 and 8 December 2020. She indicated she did complain of shoulder symptoms from the outset. She is unsure why the GP did not record her shoulder symptoms.
It was noted that an ultrasound and MRI were subsequently done on the right shoulder and she was eventually referred to Dr Mohammed Baba who saw her in July 2021. Apparently, the ultrasound showed a full thickness supraspinatus tear. The subsequent MRI reported:
“1.     Hypertrophic AC joint arthropathy;
2.     Florid subacromial/subdeltoid bursal inflammation;
3.     Long head of biceps tendinosis and tenosynovitis;
4.     Tear of the rotator cable and biceps pulley;
5.     Partial thickness delaminating subscapularis tear with background tendinosis;
6.     Complete retracted supra and infraspinatus tears with background tendinosis;
7.     Volume and mild fatty permeation of the subscapularis, supra and infraspinatus muscle bellies;
8.     Synovitis with the glenohumeral joint; and
9.     Degenerative SLAP tear.”
Dr Baba wanted to operate on the right shoulder but Assessor Kenna found that the right shoulder was not causally related to the motor vehicle accident.

CURRENT SYMPTOMS

She still reports ongoing symptoms in her neck with discomfort and right shoulder restricted movement. She said her left shoulder is now better and she has no left shoulder symptoms. She has lost movement in her right shoulder. She is right handed.

PHYSICAL EXAMINATION

Examination was performed by Dr Dixon with Dr Rosenthal observing via Microsoft Teams.
She weighed 113kg. She was 163cm tall.
Her neck movements were reduced at the extremes in a symmetrical pattern with rotation to left and right, flexion, extension and lateral flexion all reduced symmetrically. There was no paraspinal spasm or guarding but there was tenderness over the facet joints.
There were no neurological deficits in the upper limbs. Muscle power, tone and reflexes were normal.
Upper arm measurements were 37cm on both sides, 10cm above the olecranon. Forearm measurements were 26cm on the right and 25cm on the left, 10cm below the olecranon.
She had a full range of elbow and wrist movements.
Grip strength was power grade 4/5 in both hands.
The range of motion of both shoulders was measured with a goniometer and recorded in the table below:

Shoulder Movement	Right	Left	Normal
Abduction	100°	120°	180
Flexion	100°	130°	180
Extension	30°	40°	50
Adduction	40°	40°	50
External rotation	70°	80°	90
Internal rotation	50°	50°	90

The range of motion of both shoulders was found to be restricted in all planes with the right shoulder showing a greater degree of restriction than the left shoulder.
In the lumbar spine, she had facet joint tenderness and left buttock pain reported but no radicular pain extending down to her feet. She had reduced lumbar movement without spasm or guarding. Flexion was reduced by half, extension by one-third, right lateral flexion reduced by one-third and left lateral flexion reduced by one-quarter.
She would not get up on her heels or toes and only did a partial squat.
There were no neurological deficits in her lower extremities. Muscle power, tone and reflexes were normal and there were no sensory changes.
Calf measurements were 38cm on the left and 37cm on the right, 10cm below the inferior patellar pole. Thigh measurements were 50cm on both sides, 10cm above the superior patellar pole.
The scars for both previous knee replacements were well-healed. She had no particular tenderness, and no retro patellar crepitus. Ligaments were intact. Alignment was normal. Range of motion of both knees was 0° extension to 120° of flexion. She did complain of right knee pain when squatting.
She generally tended to walk with a slow gait. Her posture was maintained.
Pes planus was evident over both feet. She had a full range of ankle movements on both sides.
FURTHER RE-EXAMINATION
After the first re-examination the Panel conferred and decided that a second re-examination was necessary. The reason for the further assessment following the previous examination which occurred on 13 December 2023 was for further clarification regarding the history in regards to the listed shoulder injuries.
The second re-examination occurred via Microsoft Teams video conference on 19 March 2024. In attendance was Ms Nyarkoa and Assessor Thomas Rosenthal.

HISTORY PROVIDED

Ms Nyarkoa confirmed that she was involved in a motor vehicle accident on 28 October 2020. She said she was driving a four-wheel drive turning left into her driveway. She said she was not going very fast. She was holding the steering wheel at the time when an unknown vehicle hit the back of her vehicle and pushed her into her neighbour’s yard. She was wearing a seatbelt. She did not see the other car coming at all. She said no airbags went off. Her neighbour came out to help her get out of the car after the accident. She said family came out to help also, and a cousin took her to Liverpool Hospital following the accident. She said she did not lose consciousness.
She said she initially had pain throughout most of her body. She could not recall whether she had any X-rays or what treatment she had at Liverpool Hospital.
In the accident, she stated that the driver of the offending vehicle ran away. After she came back from hospital, her car and the offending car had been removed from the front yard and the neighbour’s yard.
She attended her GP, Dr Latif, the following day, 29 October 2020. She believes she had pain all over her body including her shoulders. Dr Latif’s records indicate she had generalised aches and was feeling weak initially and subsequently she was treated for low back pain and then for her waist (?pain) and pain in both knees.
The GP records of Dr Latif were read out to her and she believed they were not an accurate reflection of her complaints. She said she did complain of shoulder pain but it was not recorded.
It was noted to Ms Nyarkoa that she filled out a claim for personal injury on 22 January 2021 where she recorded her injuries as ‘back, waist and knees’. She cannot recall filling out this form. When asked why she did not record shoulder pain, she said she had pain throughout most of her body but was unsure why she did not record all other body parts that were painful.
Dr Latif subsequently recorded that she had neck pain and electric shocks over the left upper and left lower limbs on 29 January 2021. She could not actually recall the circumstances of this. She did recall having physiotherapy which was recorded by Dr Latif as commencing on 18 February 2021. It was also noted she was seeing a psychologist.
In regard to her shoulder conditions, it was noted that Dr Latif recorded on 27 April 2021 she was “complaining of recurrent pain over right shoulder for two weeks unprovoked. Shoulder arc movements only to 90°.” Prior to this, Dr Latif had recorded a full range of shoulder movements on the day following the motor vehicle accident.
Dr Latif ordered an ultrasound of the right shoulder with the referral noting “unprovoked pain right shoulder over two weeks”. When this was read out to Ms Nyarkoa, she stated she believed she had pain before the two weeks recorded by Dr Latif and that this was not an accurate reflection of her symptoms.
Subsequent to this, she was referred to Dr Baba, a surgeon. An MRI of the right shoulder which occurred on 12 July 2021 concluded: “Hypertrophic AC joint arthropathy, florid subacromial/ subdeltoid bursal inflammation and long head of biceps tendinosis and tenosynovitis”. Dr Baba then requested surgical intervention for which funding was denied by the insurer. She has had no further treatment on the shoulder since that time.
Ms Nyarkoa was questioned regarding pre-existing conditions to her shoulders. She could not recall any pre-existing shoulder conditions prior to the accident.
It was noted to her that on 4 August 2017 Dr Latif recorded pain over the left shoulder and subsequently she had an ultrasound which showed tendonitis and bursitis and then had a steroid injection. It was noted she had a reduced range of motion at the left shoulder and she required a repeat injection on 13 October 2017.
Ms Nyarkoa could not recall her pre-existing left shoulder condition even after she was reminded about the entries in her general practitioner’s notes.
It was also noted she had pre-existing back pain with radiculopathy recorded on 10 October 2019 by Dr Latif. Ms Nyarkoa could not recall this either.

CURRENT SYMPTOMS

She now reports both shoulders are still painful. She has trouble moving both shoulders.
She has had no further injuries and she still has ongoing neck and back pain.
Her waist and knees are painful when walking. Her left leg is painful causing her to limp on occasions.
She cannot lift her arms above her head and she believes that the shoulder conditions have remained unchanged since the accident.

PHYSICAL EXAMINATION

During the video conference, she was asked to try and lift her arms above her head. She appeared to only abduct and flex both shoulders to approximately 100° stating she then had pain in the shoulders and lower back. Further movements were not attempted.

CONSISTENCY

The Panel carefully examined and questioned the claimant about her recollection of her injuries, symptoms and treatment. Despite lengthy questioning in two re-examinations the Panel was not satisfied Ms Nyarkoa could give an accurate history of her injuries, symptoms and treatment. Unfortunately Ms Nyarkoa could not recall much of the detail of those past injuries or treatments. Although the Panel found Ms Nyarkoa to be helpful and candid the Panel was not assisted in its deliberations by her limited recall of her medical history. Despite this lack of clarity the Panel has not drawn any adverse inferences against any inconsistencies apparent in Ms Nyarkoa’s history or presentation.
On a number of occasions the Panel put specific clinical notes and medical records to
Ms Nyarkoa about treatments which she says were mis recorded. For example Ms Nyarkoa attended Dr Latif the day after the accident on 29 October 2020 and also on 27 April 2021. On neither occasion did Dr Latif record any complaint of any shoulder pain or injury.
Ms Nyarkoa’s explanation was that she told Dr Latif of her shoulder injuries but he did not record her complaint. Ms Nyarkoa was asked by the Panel why she did not record her shoulder injuries in her claim for personal injury on 22 January 2021 she said she had pain throughout most of her body but was unsure why she did not record all other body parts that were painful. Ms Nyarkoa was also asked by the Panel about steroid injections she had in her shoulders. She said she could not recall having any injections in her shoulders.
The Panel has reviewed all of the clinical notes and records of Dr Latif and finds that Dr Latif is a careful and accurate historian when recording the claimant’s complaints or details of injuries. Where his records and notes differ from the claimant’s recollections the Panel generally prefers the contemporaneous notes of Dr Latif over the claimant’s recollections.

DIAGNOSIS, CAUSATION AND SUMMARY OF THE PANEL’S OPINION

In the motor vehicle crash on 28 October 2020, Ms Nyarkoa sustained a number of soft tissue injuries. Based on the contemporaneous documentation these were predominantly bilateral knee sprain and lumbar spine. There has been no significant structural damage shown to either her spine, shoulders, knees, legs or hands that were caused by the motor accident. There was little evidence of ongoing injuries in regards to both knees, thoracic spine, left hand or left leg caused by the motor accident.
The Panel notes that Ms Nyarkoa’s GP records from Dr Latif show that she has a significant past history of injury and disability. She had a workplace accident in 2001 where she fell down some stairs and injured her left leg and knee. Ms Nyarkoa’s GP records note bilateral knee replacements. Her GP records also record a history of shoulder and back complaints prior to the subject matter accident.

Cervical spine

The Panel accepts that Ms Nyarkoa sustained a soft tissue injury to her cervical spine caused by or materially contributed to by the accident.
The Panel’s examination of Ms Nyarkoa neck found movements were reduced at the extremes in a symmetrical pattern with rotation to left and right, flexion, extension and lateral flexion all reduced symmetrically. There was no paraspinal spasm or guarding but there was tenderness over the facet joints. There were no ongoing radicular symptoms or signs in either upper limb. The Panel did not find any complete or partial rupture of tendons, ligaments, menisci or cartilage. In summary there was a normal neurological examination with no radiculopathy. Having considered all the evidence on balance the Panel did not find sufficient evidence to support a diagnosis of radiculopathy. Therefore, the appropriate assessment for her cervical spine was that it was a soft tissue injury. Her neck movements were consistent with DRE I and 0% whole person impairment.
The Panel notes that the claimant consulted Dr Latif the day after the accident who recorded that her cervical spine was normal. Dr Latif noted some stiffness and pain in the neck in 2002. The first mention of neck pain in the GP notes after the accident was on 29 January 2021. Dr Latif’s notes refer to the claimant reporting “electric shocks” in the upper and lower limbs. Despite this report it is not considered there is any clear evidence of verifiable radiculopathy involving either upper extremity.
The Panel also notes that the claimant consulted Dr Latif for some years before the motor accident in 2020 complaining of neck pain. Dr Latif’s medical records show that on 25 June 2002 the claimant reported to Dr Latif that she had stiffness in the neck with painful movements.

Thoracic spine

The Panel accepts that Ms Nyarkoa sustained soft tissue injury to her thoracic spine caused by or materially contributed to by the accident.
There are no X-rays, CT scans and MRI scans of the thoracic spine which showed any fractures or nerve root impingement at the level of the thoracic spine.
At the re-examination there were no ongoing radicular symptoms in the thoracic dermatomes or signs in either upper limb. There were no neurological signs of any thoracic radiculopathy. The Panel did not find any complete or partial rupture of tendons, ligaments, menisci or cartilage. Having considered all the evidence on balance the Panel did not find sufficient evidence to support a diagnosis of radiculopathy. Therefore, the appropriate assessment for her thoracic spine injury was that it was a soft tissue injury.
The Panel also notes that the claimant consulted Dr Latif for some years before the motor accident in 2020 complaining of back pain. Dr Latif’s medical records do not show any specific complaint from the claimant complaining of pain or reduced movement exclusively in the thoracic spine.

Lumbar spine

The Panel accepts that Ms Nyarkoa sustained soft tissue injury to her lumbar spine caused by or materially contributed to by the accident.
At the re-examination of the lumbar spine, the Panel found she had facet joint tenderness and left buttock pain. She reported but no radicular pain extending down to her feet. The claimant had reduced lumbar movement without spasm or guarding. Flexion was reduced by half, extension by one-third, right lateral flexion reduced by one-third and left lateral flexion reduced by one-quarter.
There were no neurological deficits in her lower extremities. Muscle power, tone and reflexes were normal and there were no sensory changes.
The claimant reported a significant history of low back pain prior to motor accident. On 22 December 2006 the claimant complained to Dr Latif of pain over the low back pain over the right foot. On 15 February 2019 Dr Latif noted the claimant had severe pain down the right thigh to the lateral aspect of the right leg and right-sided sciatica pain. On 21 February 2019 Dr Latif noted CT lumbar spine on 18 February 2019 with diagnostic imaging requested. Neural injection right L4/L5 facet joint, right L4 nerve root exit lower back pain right radicular pain. Dr Latif notes show that the claimant continued to complain of severe right-sided back pain and right-sided sciatica pain on 23 April, 2 July and 10 October 2019. As noted above, Dr Latif requested a number of CT scans or diagnostic imaging over this period with none of the results of the scans produced by the parties to the Panel.
The Panel notes Medical Assessor Kenna’s comments about the claimant’s lower back. Medical Assessor Kenna wrote that the GP notes confirm onset of back pain following the motor vehicle accident but no mention of back pain after 17 March 2021. There was a history, however, prior to that in 2019 of lower back pain with a mention of radiculopathy, which seems to have since fully resolved, i.e. prior to the motor vehicle accident.
The Panel disagrees with Medical Assessor Kenna’s findings that the claimant’s lower back pain seem to have fully resolved prior to the subject matter accident. The Panel notes that Dr Latif twice in February 2019 referred to severe low back pain experienced by the claimant with right-sided sciatica and radicular pain. Dr Latif recorded a number of further instances of the claimant complaining of lower back pain up until October 2019.
In the Panel’s view the pain and symptoms with which the claimant presented to Dr Latif in 2019, including with right-sided sciatica and radicular pain, supports a finding that the claimant’s presentation satisfies a diagnosis of DRE II. Because there was no prior diagnosis of radiculopathy the Panel does not find that the claimant’s lumbar spine could be assessed as DRE III. Accordingly the claimant receives an assessment of 5% whole person impairment for pre-existing lumbar spine condition.
At the re-examination and medical assessment, the Panel found there was markedly reduced range of motion in all planes with some asymmetry of side bending. The Panel noted some muscle spasm, tenderness and guarding. There were no ongoing radicular symptoms or signs in either lower limb. The Panel did not find any complete or partial rupture of tendons, ligaments, menisci or cartilage. Having considered all the evidence, on balance the Panel did not find sufficient evidence to support a diagnosis of radiculopathy. Therefore, the appropriate assessment for her cervical spine was that it was a soft tissue injury. The lumbar spine was consistent with DRE II having asymmetry of motion and receives an assessment of 5% whole person impairment.[14] The claimant has a DRE Lumbosacral Category II level of assessable impairment in accordance with the description in Table 72 on Page 3/110 of AMA 4 Guides. There is asymmetry of movement and guarding but no clinical sign of radiculopathy. There is a 5% whole person impairment rating.
[14] See See AMA Guide 4^th edition. Relevant chapter and Table: ch 3, page 102, Section 3.3g, Table 70, p 108, Table 72, p 110.
Because the Panel has found that the claimant assessment is DRE II with a 5% whole person impairment for her condition both before and after the subject motor accident the total WPI is 0%.

Left and right shoulders

The Panel accepts that the claimant had pre-existing complaints and symptoms in both her shoulders prior to the subject motor accident. The Panel finds that the claimant’s reported symptoms including bilateral shoulder pain were not caused by or materially contributed to by the accident.
At the re-examination and medical assessment, the Panel found diffuse widespread tenderness over both shoulders with a restricted range of motion in all planes with the right shoulder showing a greater degree of restriction than the left shoulder. The Panel notes that at the first re-examination the claimant reported restricted movement in her right shoulder. She said her left shoulder is now better and she has no left shoulder symptoms.
For a number of years before the subject motor accident the claimant reported periodic episodes of pain and restricted movement in both shoulders.
Dr Latif’s notes concerning the claimant’s complaints about her left shoulder prior to the accident in 2020 include the following. On 4 August 2017 Dr Latif noted that the claimant complained of pain over the left shoulder area down to the left upper arm for one month. No recent injuries or falls over shoulder. Examination showed tenderness over the upper arm shoulder arc to 90°, painful restricted rotation and abduction. On 10 August 2017 Dr Latif reviewed the results of the left shoulder ultrasound which showed a partial-thickness SS, tendinitis and bursal thickening. Steroid injection. On 6 September 2017 Dr Latif noted that the claimant was still complaining of pain over the left shoulder after having the steroid injection 20 days ago. Pain over upper half left arm. Examination showed arc 90°, limited abduction and external rotation. On 13 October 2017 Dr Latif noted the claimant was still complaining of a painful left shoulder.
Regarding the left shoulder, the Panel’s clinical examination found a slightly restricted movement of the claimant’s left shoulder.

The Panel was aware of and considered the claimant’s submissions which referred to the clinical notes of Dr Latif who recorded that on 29 January 2021 the claimant felt electric shocks over her upper and lower limbs for the last three weeks. The Panel also notes Dr Baba’s comments where he said the claimant reported an onset of symptoms between March and April 2021.
The Panel finds that the subject accident did not cause the left shoulder strain or soft tissue injury to the claimant. The Panel’s view is that any of the claimant’s ongoing left shoulder injuries or complaints were not caused or exacerbated by the subject motor accident. Although the claimant complained of left shoulder pain and a slightly restricted range of motion after the subject accident she was symptomatic before the subject motor accident and a left shoulder ultrasound in 2017 showed a partial-thickness tendon tear and other pathology.
The Panel finds that the claimant has complained of bilateral shoulder pain and restricted movement for some years prior to the subject matter accident in 2020. The Panel notes it found restricted movement of the right shoulder in its re-examination. The Panel notes the claimant’s application for personal injury claim form and the GP records from Dr Latif do not refer to the right shoulder complaints until about six months after the motor vehicle accident. Dr Latif first notes the sudden onset of symptoms in the right shoulder on 27 April 2021. The Panel notes that Ms Nyarkoa told the Panel at the re-examinations that she reported her shoulder injuries to Dr Latif and could not explain why he did not record them. The Panel finds Dr Latif’s notes to be more reliable than the claimant’s incomplete memory and limited recounting of her medical history.
Dr Latif’s notes concerning the claimant’s complaints about her right shoulder prior to the accident in 2020 include the following. On 2 July 2009, the claimant complained to Dr Latif of right shoulder pain with restriction over the right shoulder and arm area, elevation of shoulder restricted painful tenderness over right upper shoulder area and joint. On 29 October 2020 Dr Latif recorded a full range of motion of the shoulders and shoulder movements were normal. On 27 April 2021 Dr Latif noted sudden onset of right shoulder pain which had been present for two weeks.
Regarding the claimant’s right shoulder, the Panel finds that the subject accident did not cause the right shoulder strain or soft tissue injury to the claimant. The Panel’s view is that any of the claimant’s ongoing right shoulder injuries or complaints were not caused or exacerbated by the subject matter accident.

Left and right knees

The Panel accepts that the claimant may have experienced soft tissue injuries to both her knees caused by or materially contributed to by the accident.
Dr Latik notes show that the claimant had a significant history of knee problems dating back to her fall down some stairs in 2001. From 2001 to 2012 the claimant frequently reported ongoing knee pain, swelling and arthritis. The Panel notes that the claimant had bilateral total knee replacements in 2013 and 2014.
At the re-examination the Panel found no neurological deficits in her lower extremities. Muscle power, tone and reflexes were normal and there were no sensory changes. Calf measurements were 38cm on the left and 37cm on the right, 10cm below the inferior patellar pole. Thigh measurements were 50cm on both sides, 10cm above the superior patellar pole. The scars for both previous knee replacements were well-healed. The claimant had no particular tenderness, and no retro patellar crepitus. Her ligaments were intact. Alignment was normal. Range of motion of both knees was 0° extension to 120° of flexion. The claimant complained of right knee pain when squatting.
The Panel finds that the claimant may have experienced soft tissue injuries to both her knees caused by or materially contributed to by the accident . The Panel’s conclusion is that any soft tissue injury attributable to the subject matter accident has since resolved.

Left wrist

The Panel accepts that the claimant may have experienced soft tissue injuries to her left wrist caused by or materially contributed to by the accident.
At the re-examination the Panel found she had a full range of elbow and wrist movements.
The Panel finds that if the claimant’s left wrist was injured in the motor accident it was a soft tissue injury that has since resolved.

Left leg

The Panel accepts that the claimant may have experienced soft tissue injuries to both her left leg caused by or materially contributed to by the accident.
At the re-examination the Panel found no neurological deficits in her lower extremities. Muscle power, tone and reflexes were normal and there were no sensory changes. Calf measurements were 38cm on the left and 37cm on the right, 10cm below the inferior patellar pole. Thigh measurements were 50cm on both sides, 10cm above the superior patellar pole.
The Panel finds that if the claimant’s left leg was injured in the motor accident it was a soft tissue injury that has since resolved.
In summary the Panel assesses the claimant's permanent impairment as follows:

Permanent Impairment Table

Body Part or System

AMA4 Guides/ Guidelines References

(chapter/ page/table)

Permanent (YES/NO)

Current %WPI*

%WPI* from pre-existing OR subsequent causes

%WPI* due to motor accident

1

Cervical Spine

AMA4 Page 110

Table 73

Yes

0%

0%

0%

2

Lumbar Spine

AMA4 Page 110

Table 72

Yes

5%

5%

0%

In conclusion the Panel’s finding is that the claimant’s total permanent impairment caused by the subject matter accident is 0%.

Proposed treatment and care

The Panel’s conclusion is that the right rotator cuff repair and biceps tenodesis as requested by Dr Baba on 13 July 2021 is not reasonable and necessary in the circumstances of the claimant’s case and does not relate to the injury caused by the motor accident.
The Panel notes that Dr Latif first diagnosed the claimant with a right shoulder complaint in a consultation on 27 April 2021 which is about six months after the subject matter accident. His diagnosis was: muscular ligamentous sprain injuries lower back, bilateral knee strain. Late presentation of right shoulder pain and injuries with tendinopathy, bursitis, impingement and AC joint arthrosis (27 April 2021).
The Panel has considered the claimant’s submission that contended that the claimant reported symptoms of her right shoulder injury soon after the subject motor accident. The claimant’s submissions referred to the clinical notes of Dr Latif who recorded that on 29 January 2021 the claimant felt electric shocks over her upper and lower limbs for the last three weeks. The Panel also notes Dr Baba’s comments where he said the claimant reported an onset of symptoms between March and April 2021.
The Panel notes that the claimant has a significant and long-standing history of complaints and symptoms in both her left and right shoulders which predated the subject motor accident by a number of years. Based upon the claimant’s medical records she had pre-existing shoulder symptoms or injuries which were not caused by the subject motor accident. In the Panel’s opinion the claimant’s right shoulder injury and symptoms were not caused by the motor accident.
In this claimant’s case, the Panel is not satisfied that the proposed treatment and care relates to the injury caused by the motor accident. As discussed in paragraphs above, the treatment refers to pathological changes that were not caused by the motor accident.
Reasonable and necessary in the circumstances
In such a case the claimant is required to establish that the treatment is both “reasonable and necessary”. This test differs from the workers compensation legislation which requires a worker to establish that the treatment is “reasonably necessary”. There is a stricter requirement under the motor vehicle accidents legislation because there is no moderation of the requirement that the treatment is “necessary”.
When discussing the meaning of “reasonably necessary” under s 60 of the Workers Compensation Act 1987 in Clampett v WorkCover Authority of NSW,[15] Grove J stated:[16]
“22 I return to the expression ‘reasonably necessary’ in s60. Dictionaries stipulate that ‘necessary’ has relevant definition as ‘indispensable, requisite, needful, that cannot be done without’ - (Shorter) Oxford English Dictionary, 3rd Ed and ‘that cannot be dispensed with’ - Macquarie.
23 The essential issue is what effect flows from conditioning such qualities as ‘reasonably’. The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word ‘necessary’ if it stood alone. In order to contemplate such moderation it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker's home, having regard to the nature of the worker's incapacity, is reasonably necessary. In contemplation of what might be ‘reasonably necessary’ there is this statutory obligation specifically to have regard to the nature of the worker's incapacity. It provides emphasis towards moderating the meaning of ‘necessary’ in this context.”
[15] [2003] NSWCA 52 (Clampett).
[16] Clampett at [22]-[23], Meagher & Santow JJA agreeing.
Similar observations have been subsequently made by the Court of Appeal on the meaning of “reasonably necessary” under other legislation.[17]
[17] See ING Bank (Australia) Ltd v O’Shea [2010] NSWCA 71 at [48]; Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 at [113].
Factors relevant to, but not determinative, of the criteria of reasonableness in the context of the workers compensation legislation are well settled.[18] They include:
(a)   the appropriateness of the particular treatment;
(b)   the availability of alternative treatment;
(c)   the cost of the treatment;
(d)   the actual or potential effectiveness of the treatment, and
(e)   the acceptance by medical experts of the treatment as being appropriate or likely to be effective.
[18] See Diab v NRMA Ltd [2014] NSWWCCPD 2 (Diab) at [88].
Whilst the observations in Diab were directed to the test of “reasonably necessary” in the workers compensation legislation, we adopt it insofar as they have relevance, although not determinative, of the stricter test of “reasonable and necessary”.
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 MAI Act refers to treatment “provided or to be provided to the claimant”.
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”.

Does the proposed treatment relate to the injury resulting from the motor accident

The question for the Panel is whether the specified treatment “relates to the injury caused by the motor accident”. That application of the common law test of causation in assessing the degree of impairment resulting from injury under the workers compensation legislation was discussed by the Court of Appeal in Secretary, New South Wales Department of Education v Johnson.[19] These principles are well settled and equally apply by reasons of the words used in the treatment issue.
[19] [2019] NSWCA 324.
The motor accident need only be a material contribution to the need for treatment: AAI Limited v Phillips.[20] That case considered the words “whether any such treatment relates to the injury caused by the motor accident” where they appear in s 58(1) of the MAC Act. Those words are almost identical to the wording in Schedule 2 of the MAI Act.
[20] [2018] NSWSC 1710 at [29] (Phillips).
The Panel does not accept that there was any injury to the claimant’s right shoulder caused by the motor accident including whether by way of aggravation of pathology or exacerbation of any symptoms. Accordingly, the Panel does not accept that the treatment relates to the injury caused by the subject motor accident.

CONCLUSION AND CERTIFICATION

As a result of the above findings the Panel revokes the certificate of Medical Assessor Kenna dated 3 May 2023 regarding permanent impairment and issues a replacement certificate in accordance with these reasons.
As a result of the above findings the Panel affirms the certificate of Medical Assessor Kenna dated 3 May 2023 regarding the right rotator cuff repair and biceps tenodesis as requested by Dr Baba on 13 July 2021. The proposed treatment and care does not relate to the injury caused by the motor accident.
The new certificates are attached at the commencement of these Reasons.

[2024] NSWPICMP 318

20 May 2024