Obaidi v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	Obaidi v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 712
CLAIMANT:	Wana Obaidi
INSURER:	IAG Limited trading as NRMA Insurance
REVIEW PANEL
MEMBER:	Alexander Bolton
MEDICAL ASSESSOR:	Thomas Rosenthal
MEDICAL ASSESSOR:	Shane Moloney
DATE OF DECISION:	14 October 2024
CATCHWORDS:	MOTOR ACCIDENTS – Review of certificate of Medical Assessor (MA) Home dated 1 March 2024 who assessed the claimant as having 5% whole person impairment; the claimant was involved in an accident on 18 April 2016 when her car was rear-ended by the insured car; airbags were not deployed and the claimant was able to drive her car home; claimant sought medical treatment the day following the accident and reported neck and shoulder pain but the MA had incorrectly noted that this was not complained of and treated until six weeks post-accident; claimant had sought treatment of her shoulders six months before the accident but was asymptomatic at the time of the accident; claimant was treated for shoulder pain in November 2015 but thereafter has no further treatment for the accident in April 2016 and the Medical Review Panel was satisfied that in this regard she was asymptomatic; Held – Panel was satisfied that the claimant did make a complaint of shoulder injury the day following the accident and despite a low impact occurring, injuries complained by her were reasonable and, on the balance of probabilities, caused by the accident; Medical Assessment Certificate revoked.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. The Panel revokes the certificate of Medical Assessor Home dated 1 March 2024. 2. The Panel is satisfied that the accident and impact has had a more than negligible effect on the claimant’s neck and shoulder condition suffered by her as a result of the accident. 3. The Panel has assessed the claimant’s whole person impairment at 9%.

STATEMENT OF REASONS

INTRODUCTION

This is an application by the claimant to review a certificate of Medical Assessor Home (the Medical Assessor) dated 1 March 2024.
Initially, the Panel included Medical Assessor Stubbs however, Medical Assessor Stubbs was unable to continue, and Medical Assessor Moloney has substituted for him through this assessment.
The following injuries were referred by the Personal Injury Commission (Commission) for further assessment:
(a)    cervical spine - soft tissue injury;
(b)    thoracic spine - musculoligamentous strain injury, soft tissue injury;
(c)    right shoulder - capsulitis, musculoligamentous strain injury, soft tissue injury;
(d)    left shoulder - capsulitis, musculoligamentous strain injury, soft tissue injury;
(e)    left arm - musculoligamentous strain injury, soft tissue injury, and
(f)    right arm - musculoligamentous strain injury, soft tissue injury.
The claimant was initially assessed by Medical Assessor Wilding who found the degree of permanent impairment to be 0%. The claimant subsequently sought a review of Medical Assessor Wilding's decision.
A Medical Assessment Service (MAS) Review Panel Certificate dated
26 March 2021 confirmed the certificate of Medical Assessor Wilding. This review panel consisted of Medical Assessor Couch, Medical Assessor Assem and Medical Assessor Myers.
The Medical Review Panel affirmed the certificate of Medical Assessor Wilding that the cervical spine injury did not give rise to a permanent impairment and attracted 0% WPI. The injuries to the claimant’s thoracic spine, left shoulder, right shoulder, left arm and right arm were found by the Medical Review Panel as not being related to the accident.
The claimant subsequently made an application for further assessment pursuant to s 62 of the Motor Accidents Compensation Act 1999 (the Act) which was accepted by the Commission and the matter was referred to Medical Assessor Home.
On 1 March 2024, the claimant was assessed by the Medical Assessor. He assessed the matters referred for assessment and gave a certificate dated
1 March 2024. The Medical Assessor found that the referred injuries to the cervical spine and thoracic spine were caused by the motor accident but that the referred injuries to the claimant's right shoulder, left shoulder, left arm and right arm were not caused by the motor accident. The Medical Assessor concluded that the claimant's injuries gave rise to a whole person impairment (WPI) of 5%.

The accident

The accident occurred on 16 April 2016. The claimant was wearing her seat-belt and was driving driver a Toyota Kluger SUV. Her vehicle was stationary at traffic control lights on Lane Cove Road at the intersection of Epping Road, Ryde when she was struck from behind by the insured car. The claimant’s car was pushed forward but there was no secondary collision as hers was the first vehicle at the intersection.
The car was fitted with airbags but they did not deploy in the accident. The claimant said that her Toyota Kluger was hit in the rear while she was stationary at traffic lights. At impact the claimant had her hands on the steering wheel and she was thrown forwards and was restrained by the seatbelt. She reported that she experienced intense pain in her neck after impact and began crying and was upset. The drivers exchanged details and following that the claimant drove home. Her car had sustained rear end damage and was subsequently repaired.

Bundles of documents

The parties have each presented their respective bundles of documents upon which they rely. The Panel have 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, in much the same manner as parties not referring to or not specifically relying on a document in their own bundle and submissions.
The fact that evidence is not referred to in these reasons does not mean it has been overlooked and nor is it required that each piece of evidence be mentioned (WAEE v Minister for Immigration and Citizenship (2003) 75 ALO 630 at [46]).The Panel is not required to “analyse every piece of information from every opinion contained in a document with which he [it] was provided” – see Farr v Insurance Australia Limited t/as NRMA Insurance Ltd [2014] NSWSC 1435 at [46]. The Panel is to come to its own conclusion and to take its own history.

Claimant’s submissions

The claimant submits that Medical Assessor Home has erred in making findings with respect to diagnosis and causation supported by an incorrect medical history, he did not demonstrate a clear path of reasoning and he failed to properly apply the Motor Accident Guidelines in his assessment of the claimant.
The claimant says that pre-accident she suffered some generalised neck and shoulder soreness on an intermittent basis. She was diagnosed with right subacromial bursitis. She consulted her general practitioner (GP) and received a cortisone injection on 26 November 2015. The claimant submits that she was asymptomatic at the time of the accident.
The claimant says that regarding symptoms following the accident, the Medical Assessor reported;
“To direct enquiry she recalls that she first developed right shoulder pain at least several weeks post-accident. She recalls that she first developed left shoulder pain about three or four weeks post-accident.
She recalls the onset of severe bilateral shoulder stiffness approximately six weeks post- accident. She then returned to the doctor and was referred for further ultrasound examination of both shoulders performed on 22 June 2016.
She recalls that she received a long period of physical therapy, with some benefit in relation to her neck and back complaints.
She attended Dr Jerome Goldberg in relation to her diagnosis of bilateral adhesive capsulitis. Hydro dilation was discussed but did not proceed. She recalls that she was given a 20 percent chance of benefit.
There is no history of early pain in either shoulder. The complaints of bilateral shoulder pain were first documented by her treating general practitioner on 27 May 2016 some six weeks post-accident.”
The claimant says that the reporting by the Medical Assessor is plainly incorrect. The claimant refers to a clinical note entry of Dr Huang, the day following the accident on 17 April 2016, which reported the claimant having been in a car accident and suffering neck and shoulder pain. The claimant says that the delay is not many weeks as reported by the Medical Assessor. The claimant reported shoulder pain the very next day.
In further support of the claimant’s complaints immediately post accident she submits that on 1 May 2016 she attended her GP at Top Ryde Medical Centre. The claimant reported that she was experiencing persistent neck pain, stiffness and discomfort following the accident. She had difficulties rotating her neck and with computer-based activities, such as typing. On 15 May 2016 the claimant consulted her GP, Dr Hong. She reported pain in her shoulders, hands, arms, neck and upper back. She had limited range of movement, felt fatigued and was rarely relieved by anti-inflammatory medication.
On 23 May 2016 the claimant consulted chiropractor, Mr Egan. On examination, the chiropractor reported that he observed reduced bilateral shoulder and cervical spine range of motion. Mr Egan reported as follows:
“It is my impression that Wana has experienced a significant whiplash injury affecting both her neck and mid back. She has complained of pain at these two sites on a high level and mild to moderate discomfort in her low back. There is likely mechanical based pain and potential cervical disc related pain. Deep tendon reflexes for C5 and C6 were minorly diminished. She complains of bilateral referral pain down both arms at different times during the day.”
Mr Egan, said that the claimant was suffering frozen shoulder in both shoulders. He referred her for further imaging.
On 12 June 2016 the claimant consulted her GP at Top Ryde Medical Centre for advice and management of her condition, persistent pain and disability. On
22 June 2016 the claimant underwent an ultrasound of her shoulders. The reporting radiologist, Dr McWhirter, reported as follows:
“Right supraspinatus calcification. Bilateral bursal thickening.
Restricted range of movement in both shoulders can be seen with frozen shoulder.”
On 23 June 2016 the claimant consulted, Mr Egan. The claimant stated that she required a high amount of support at home provided by her family due to reduced functional capacity, pain and disability. The chiropractor reported the claimant had pain and disability in her neck and shoulders. She had reduced range of motion in her shoulders and difficulties lifting her arms above 90 degrees of abduction.
On 25 June 2016 the claimant attended her GP, Dr Huang. She reported experiencing severe bilateral shoulder pain following the accident. She stated that chiropractic treatment and Panadeine Forte was not sufficient in managing her pain. She struggled to carry out regular activities of daily living and tasks of self-care.
Contrastingly, the claimant refers to a comment within the certificate by the Medical Assessor where he says:
“There is no history of early pain in either shoulder. The complaints of bilateral shoulder pain were first documented by her treating general practitioner on 27 May 2016 some six weeks post-accident.
She has a past history of a significant episode of shoulder pain of at least two months duration between September and November 2015, with ultrasound examination of the shoulder performed in November 2015, demonstrating supraspinatus and possibly subscapularis and infraspinatus tendinosis, calcification and supraspinatus insertion and bursal thickening, with marked restriction of active elevation during functional testing.
Ms Obaidi recalls that her shoulder pain later resolved prior to the subject motor
vehicle accident.
Accepting this history, the onset of shoulder pain due to the development of adhesive capsulitis, some two to four, possibly six weeks, post-accident, is not considered to be causally related to the subject accident.
Whilst adhesive capsulitis can occur following trauma to the shoulder, including
as a post-operative complication, it is not a condition that occurs as a complication of whiplash injury.”
The claimant submits that the Medical Assessor is plainly incorrect in relation to the claimant’s complaints of shoulder pain following the accident. The claimant says that he complained of shoulder pain at her consultation with her treating doctor the day after the subject accident.
The claimant submits that the Medical Assessor has failed to explain, with any reasons, why he has rejected the opinion of the claimant’s treating practitioners.
The claimant says that the Medical Assessor did not raise any inconsistencies with the claimant.
The claimant submits that the Medical Assessor failed to consider the history taken from the claimant at the time of the assessment.
The Medical Assessor failed to consider the claimant’s reported ongoing symptomology when undertaking his assessment of the claimant’s WPI.
The claimant submits that failing to consider pertinent evidence, the history reported by the claimant and the provision of inadequate reasons and are not trivial, insignificant or immaterial errors.

Insurer’s submissions

Regarding the determination made and the claimant’s submission that this was based on an incorrect medical history, the insurer referred to page 4 of the certificate in which it was reported that:
“To direct enquiry she recalls that she first developed right shoulder pain at least
several weeks post-accident. She recalls that she first developed left shoulder pain
about three or four weeks post-accident.
She recalls the onset of severe bilateral shoulder stiffness approximately six weeks
post-accident. She then returned to the doctor and was referred for further ultrasound
examination of both shoulders performed on 22 June 2016.”
The insurer submits that it was the claimant herself who, in response to direct inquiry, reported that her shoulder symptoms developed approximately six weeks post-accident.
Additionally, the insurer submits that as per his records, Dr Huang’s examination identified no restrictions to the claimant’s shoulders and only pain followed by an observation that “shoulder been OK”.
The insurer says that it is the claimant’s position that the Medical Assessor’s determination was solely based on the claimant allegedly having developed shoulder symptoms immediately following the accident. The insurer submits that this is incorrect.
The insurer says that in his path of reasoning, the Medical Assessor acknowledged multiple factors that contributed to his determination that the shoulder symptoms were not related to the accident:
(a)     On page 8, the Medical Assessor considered that the claimant had a significant history of symptomatic shoulder pain arising from various shoulder conditions:
“She has a past history of a significant episode of shoulder pain of at least two months duration between September and November 2015, with an ultrasound examination of the shoulder performed in November 2015, demonstrating supraspinatus and possibly subscapularis and infraspinatus tendinosis, calcification and supraspinatus insertion and bursal thickening, with marked restriction of active elevation during functional testing.”
(b)    On page 8, the Medical Assessor considered that adhesive capsulitis did not occur as a complication of whiplash injury.
(c)    On page 9, the Medical Assessor accepted that, based on the photographs of the accident, there was no evidence of a direct injury to the shoulders.
Relying on this, the insurer submits that the claimant’s argument cannot succeed because the Medical Assessor was entitled to form his determination upon review of the documentary evidence and his contemporaneous findings on clinical examination. The insurer says that he was also entitled to use his clinical judgment, evaluation, expertise, and clinical discretion to draw his conclusions.
The insurer submits that the Medical Assessor’s assessment of the claimant’s shoulder injury was not affected by material error.

Medical background and evidence

By way of background, the claimant was initially assessed by Medical Assessor Wilding who found the claimant’s degree of permanent impairment to be 0%. The claimant subsequently sought a review of Medical Assessor Wilding's decision. A Review Panel certificate of 26 March 2021 confirmed the certificate of Medical Assessor Wilding.
To Medical Assessor Wilding, the claimant said that that she had an ultrasound guided injection of the right shoulder on 20 November 2015. She said she had an injection into the right shoulder but said that her symptoms in the shoulder had settled prior to the accident on 16 April 2016.
Following the accident, because of continuing symptoms in her shoulders the claimant was referred to Dr Goldberg, orthopaedic surgeon. Dr Goldberg saw her on 31 August 2016. In his letter of that date he noted “She is a 42 year old right handed lady who has had intermittent problems with her neck and both shoulders for a year probably related to her work practices rather than anything else.”
Dr Goldberg noted that the claimant was doing reasonably well until
April 2016 when she was involved in a rear end collision and following the injury had significant neck pain radiating to her back, chest wall and shoulder girdles as well as pain and stiffness in both shoulders.
In August 2016 the claimant fell and struck her face on the ground and sustained a nasal fracture.
The claimant informed Medical Assessor Wilding that since the accident she has had problems with her balance.
Medical Assessor Wilding assessed 0% WPI.
A clinical note by Dr Huang dated 28 September 2015 recorded a four week history of right shoulder pain and noted that the claimant went to the physiotherapist with neck radiation pain. The claimant had an injury to her right shoulder the night before. Someone bumped her from the left but there was no direct blow to the right shoulder. There was tenderness over the clavicle and humeral head. Range of movement was reduced on abduction and flexion over 90 degrees. The reason for the visit was “right shoulder pain, ? rotator cuff, ? bursitis”. An ultrasound of the right shoulder was requested.
A clinical note by Dr Huang on 15 November 2015 noted that the results were explained in detail. Panadol and Celebrex were prescribed. The record reported that it was a lengthy consultation for discussion of pathophysiology and the management of shoulder problems. It noted rotator cuff tendinosis, subacromial bursitis and adhesive capsulitis of the shoulder.
A clinical note by Dr Huang dated 17 April 2016 recorded a rear end collision the day previously. Dr Huang noted neck pain and shoulder pain. He recorded a sore neck, saying that it should be okay. The diagnosis was whiplash.
A medical certificate issued by Dr Huang dated 24 April 2016 stated the claimant was initially examined on 17 April 2016, and the medical diagnosis was whiplash.
A medical certificate issued by Dr Huang dated 7 August 2016 recorded the diagnoses were as follows, “Initially whiplash, however pain has progressed down from neck to bilateral shoulders and also upper back.”
A letter to Dr Goldberg, an orthopaedic surgeon, from Dr Huang dated
26 June 2016 records severe shoulder pain. It notes that she presented with severe bilateral shoulder pain post car accident in April. She was reported as having pre-existing right shoulder pain prior to the accident. The pain got much worse after the accident. It notes that a later shoulder ultrasound showed bilateral bursal thickening and right supraspinatus calcification.
Dr Goldberg in his letter dated 31 August 2016 to Dr Huang said:
“She is a 42 year old right handed lady who has had intermittent problems with her neck and both shoulders for a year, probably related to her work practises rather than anything else.
She was doing reasonably well until April when she was involved in a rear end collision and following the injury has significant neck pain radiating to her back, chest wall and shoulder girdles, as well as pain and stiffness in both shoulders.
A cortisone injection hasn’t helped. She has had chiropractic treatment.
Clinically her neck was tender with limited movement. She had tenderness about the periscapular muscles as well. Both shoulders were globally tender with loss of active and passive movement but good power.
Adhesive capsulitis is a self limiting condition with symptoms and signs in 80% of cases settling over an 18- 24 month period. The condition is of unknown aetiology and occurs in 3% of the population. I would recommend a course of anti-inflammatory tablets, if the patient can tolerate them, as well as a regular exercise programme to maintain range of motion, and strengthen the shoulder, but not stretch the shoulder capsule. This course of exercises should be demonstrated to the patient by a physiotherapist. Intra-articular cortisone injections are of questionable benefit.”

Dr Goldberg stated “Mrs. Obaidi clearly has developed a well-entrenched chronic pain syndrome associated with a soft tissue whiplash injury. For this she requires urgent referral to an interventional pain clinic for a multidisciplinary approach to management.” He noted the patient has post-traumatic bilateral adhesive capsulitis.
The claimant sought treatment from a chiropractor, Mr Egan. He provided a report of 21 September 2016 and said;
“I am in significant agreeance with Dr. Goldberg's opinion that Wana has clearly developed a well-entrenched chronic pain syndrome associated with a soft tissue whiplash injury. I agree with Dr. Goldberg that is very common to find patients in sedentary jobs to present with conditions of the shoulder and neck and that they can present with a frozen shoulder on occasion. However, there has not been any history reported by Wana in several times I questioned her on the history of her injuries that she had any problems to her left shoulder or neck, only her right shoulder. These other injuries are reported right after the car accident. In fact, Wana reported in a further review of her history that right after the accident she had symptoms of significant lack of energy, fatigue, haziness and lack of concentration the concussion immediately following the accident as well as further highlighting the likely significance of whiplash injury.”
In April 2017 the claimant fell and landed on her left knee.
In November/December 2017 the claimant fell onto her left side striking the left side of her face and left shoulder against the ground.
Dr Gehr provided a report dated 21 June 2022. He took a past medical history of no previous problems with the cervical spine, thoracic spine, lumbar spine, upper extremities or lower extremities, however, this history is not consistent with the claimant having previously suffered a right shoulder complaint 12 months prior to the accident.
Dr Gehr said that the claimant sustained injury to the cervical spine, thoracic spine and both shoulders, with persisting pain in the cervical spine since that time. He also observed that the claimant fulfilled the criteria for radiculopathy. This appears to relate to the clinical finding of decreased sensibility at C6/7 on the left side, confirmed by two-point sensory discrimination, reduced grip strength in the left hand. He provided an impairment rating of diagnosis related estimate (DRE) category III, and an assessment of 15% WPI for the cervical spine, 5% WPI for the thoracic spine to reflect findings of guarding and dysmetria, impairment of the left shoulder 13%, and impairment of the right shoulder 15% with a combined WPI rating of 40%.
Dr Duckworth, an orthopaedic surgeon, saw the claimant on 14 February 2017 and on 19 June 2019 and assessed WPI. He noted in his second report that there was a WPI involving both shoulders of 50% which converts to a 30% WPI.
Dr Duckworth in a supplementary report dated 3 September 2019 responded to a number of questions from the claimant’s solicitors including;
“Dr. Jerome Goldberg noted that there had been neck and upper back pain for a year prior to the accident, as well as a panful right shoulder. Could this condition have precipitated bilateral frozen shoulder?”
To this question, Dr. Duckworth’s response was “Yes. It could have precipitated the bilateral frozen shoulders and could have aggravated an underlying condition. As stated previously, Ms. Obaidi’s ongoing symptoms of pain are quite abnormal. This does not normally occur following a motor vehicle accident although this seems to be the only precipitating event.”
An ultrasound of both shoulders was performed 22 June 2016 and reported to demonstrate right supraspinatus calcification, bilateral bursal thickening, restricted range of motion of both shoulders can be seen with frozen shoulder. There was a small amount of fluid in the biceps tendon sheaths bilaterally.
An ultrasound of the right shoulder dated 6 November 2015 reported that there was moderate swelling of heterogeneous of the supraspinatus tendon in keeping with tendinosis. There was mild subscapularis and infraspinatus tendinosis, a 5mm calcification at the supraspinatus insertion in keeping with enthesopathic change. There was mild subacromial bursa! thickening in keeping with bursitis, with no evidence of impingement in abduction to 30 degrees. The long head of biceps was intact. Reduced range of shoulder motion was said to raise the possibility of adhesive capsulitis.
Two reports were provided for the insurer by Dr Ryan. The first report was dated 15 December 2017 and a subsequent refresher report was provided on
23 December 2020.
She said;
“From a medical viewpoint, I presented an opinion that Ms Obaidi had sustained
injuries of whiplash and bilateral shoulder conditions. I provided a clarifying number of diagnoses which I felt were resultant of the motor vehicle accident:
1.   A whiplash associated disorder type II.
2.   A right shoulder adhesive capsulitis.
3.   A left shoulder adhesive capsulitis.
…
Ms Obaidi states that she is in horrible pain. She states the pain is in her shoulders,
neck and upper back. She states it has caused her mobility issues. She states that her ankles have started to swell. She states she is starting to feel incredibly depressed. She states that the palms of her hands often change colour. She states she finds it difficult to wipe her bottom because of the pain running down her arms. She states she feels as though her pain is like hot water burning her skin. She has a vibrating sensation in her hands.
…
She continued to present with grossly restricted range of motion of both shoulders. She was able to demonstrate right shoulder movement to forward flexion 45 degrees, in abduction to 45 degrees. The left shoulder had a little more range of motion in forward flexion to 80 degrees and abduction to 60 degrees. She continued to present with grossly restricted range of motion in external rotation of the shoulder, internal rotations of the shoulders. She could not place her hands on her hips and bring her elbows forward. She presented as having exquisite palpable tenderness right throughout the cervical spine and radiating out into spasming of the trapezius region and upper thoracic spine.
…
The original diagnoses remain. She now has chronicity of adhesive capsulitis in both shoulders. She continues to present with a whiplash associated disorder type II which has now triggered a sequelae of the original condition which is a chronic neck pain. Outside of this Ms Obaidi does present with elements of a chronic pain syndrome. She also needs to have her mood assessed.”
Medical Assessor Wilding said that it was difficult to obtain a reliable history from the claimant. He said that she had a poor recollection of events and as noted, she could not recall any right shoulder symptoms prior to the motor vehicle accident until she was informed that she had an injection into the right shoulder in 2015. She then recalled that she had problems with her right shoulder.
Medical Assessor Wilding said that the motor vehicle accident was a minor rear end collision as evidenced by the photographs of the car, and supported by the panel beater’s invoice which indicated that there was minor damage to the rear of the car which resulted in a total cost of $919.92 plus GST. The Panel has not had made available to it photographs of the damage to the claimant’s car which has been referred to by Medical Assessor Wilding and it has it seen the repair invoice to which he referred
She initially consulted Dr Huang, her family doctor, the day after the accident and he diagnosed a whiplash injury. Medical Assessor Wilding said that there was no evidence of any trauma to either shoulder in the motor vehicle accident.
Medical Assessor Wilding said that it was not until approximately three weeks after the accident that the claimant complained of pain in her shoulders.
Medical Assessor Wilding referred to Dr Goldberg as an experienced shoulder surgeon, who saw the claimant on August 2016 and noted that she had experienced intermittent problems with her neck and both shoulders for a year prior to the motor vehicle accident. Medical Assessor Wilding recorded that
Dr Goldberg noted that the claimant had limited cervical spine movement and considered that her shoulder problem was due to adhesive capsulitis. Dr Goldberg stated ‘the patient has post-traumatic adhesive capsulitis’ (letter 31 August 2016).
Medical Assessor Wilding agreed with this diagnosis. He did not consider that the motor vehicle accident caused problems in either shoulder, nor that what he perceived as a minor rear end collision where there was no direct trauma to either shoulder, could aggravate any possible prior symptoms in either shoulder.
Medical Assessor Wilding discussed the condition of adhesive capsulitis which he said was a condition of unknown aetiology. He considered that the claimant did not injure her thoracic spine in the motor accident. She stated that her neck pain was referred into the interscapular region.
The certificate of Medical Assessor Wilding was subsequently the subject of a review application considered by Medical Assessors Couch, Assem and Myers who issued a certificate dated 26 March 2021.
Regarding the cervical spine the Panel consisting of Medical Assessors Couch, Assem and Myers “accepted that the rear end collision described by Ms Obaidi and evidenced by the (minor) repairs to the rear of her car, could cause a whiplash injury to the cervical spine. The early contemporaneous documentation from Dr Huang and his colleagues supported the fact that such an injury did occurred”.
With the injuries claimed to the left and right shoulders of the claimant, that Panel concluded “There was no evidence of direct injury to the shoulder (there might have been some pressure of the seatbelt on impact as it went over the right shoulder, but this would not affect the left)”. The Panel considered whether reduced mobility following a whiplash neck injury could have secondarily led to bilateral frozen shoulder. However it noted that Ms Obaidi continued with her planned attendance at a family wedding the night of the accident, and also did not require any time off work. After extensive review of the documentation, and considerable discussion, the Panel concluded that the accident on 16 April 2016 could not have caused or contributed to worsening of the impairment”. Essentially, causation of bilateral shoulder injuries (of whatever diagnosis/description), was simply not medically plausible”.
The assessment came before Medical Assessor Home for further review.
The Medical Assessor said that the claimant recalled that her shoulder pain later resolved prior to the subject motor vehicle accident.
The Medical Assessor said that accepting this history, the onset of shoulder pain due to the development of adhesive capsulitis, some two to four, possibly six weeks, post-accident, was not considered to be causally related to the subject accident.
He said that whilst adhesive capsulitis can occur following trauma to the shoulder, including as a post operative complication, it is not a condition that occurs as a complication of whiplash injury.
Regarding the findings of the Medical Review Panel, the Medical Assessor confirmed that there was very little evident visible damage to the rear of the claimant's vehicle. However, he did not place much weight on interpretation of photographs to determine the severity of the accident.
The Medical Assessor found that there was no evidence of direct injury to the shoulders. He accepted that the claimant was wearing a seatbelt over right shoulder, however there was no initial complaint of shoulder pain.
He did not find that it was plausible that stiffness arising from a whiplash injury could cause the development of bilateral frozen shoulder. The Medical Assessor said that there was no accepted medical causal relationship between the two conditions.
The Medical Assessor said that it was not plausible that the development of bilateral shoulder injuries, including the initial diagnosis of adhesive capsulitis, was caused by the subject accident.
He did not find that the restriction of shoulder motion at the assessment arose secondary to her neck complaint as her neck complaint did not cause muscle guarding or spasm.
The Medical Assessor said that the range of active motion at the shoulders was in keeping with the established diagnosis of bilateral adhesive capsulitis, where there was stiffness of passive rotation with the elbow by her side.
The Medical Assessor reported that on examination, the claimant complained of separate symptoms in the thoracic spine. However, he said that these were said to not have been previously recorded in the medical file.
The Medical Assessor provided the following WPI assessment table;

Body Part or System	AMA4 Guides/ Guidelines References (chapter/ page/table)	Permanent (YES/NO)	Current %WPI	%WPlfrom pre-existing OR subsequent causes	%WPI due to motor accident
1	Cervical spine	AMA4 Chapter 3 Page 104	5%	Nil	5%
2	Thoracic spine	AMA4 Chapter 3 Page 106	0%	Nil	0%
3	Total	...	5%	Nil	5%

Several psychiatric reports were included within the bundles of documentation. These have been read but have not been considered for the purposes of physical assessment of the claimant.

Medical examination

The claimant was examined Medical Assessor Rosenthal on 21 August 2024. His report follows:
“Ms Obaidi attended the PIC rooms on 21 August 2024. She was unaccompanied.
She attended in regards to the appeal of Medical Assessor Home’s certificate of 1 March 2024.
The basis of the appeal was that the shoulder injuries listed were alleged to be causally related to the accident by the claimant. Assessor Home had determined that the shoulder injuries were not causally related to the accident.
HISTORY
Ms Obaidi is a 51 year old female who was involved in a motor vehicle accident on 16 April 2016. She was the driver of a Kluger four-wheel drive. She believes she may have had a towbar on the back of the car. She had her seatbelt on. Her vehicle was stationary in traffic when she was struck from behind by another vehicle. She did not hit any car in front. No airbags went off in the accident. No Police or ambulance attended. She managed to drive home after the accident which was five minutes away.
She went to see her GP, Dr Huang the next day and was diagnosed with whiplash. For the initial neck pain, she was given painkillers and rest and within the next few days upper back pain and shoulder pain developed. This resulted in stiffness in shoulder movements as well as stiffness in neck movements.
Her GP referred her to Dr Jerome Goldberg, an orthopaedic surgeon, who apparently diagnosed adhesive capsulitis of the shoulders, initially stating it was accident-related. He notes that there is no particular aetiology for adhesive capsulitis. He treated her conservatively with non-invasive treatment.
She was referred to Dr Chow, a pain specialist, as her neck, upper back and shoulder pain persisted. Dr Chow provided laser treatment. She had physiotherapy, chiropractic, acupuncture but no surgery and no injections in regards to her neck, upper back and shoulder symptoms. Chronic pain and stiffness has persisted.
She has developed a psychological injury and has been put on antidepressants. Her condition is associated with poor sleep.
Over eight years has now passed since the accident and she still has chronic persisting pain in her neck, upper back and shoulders with associated stiffness and reduced movement.
CURRENT SYMPTOMS
She has constant pain in her neck which normally averages around 7 on a scale of 0-10, with 10 being maximal pain. Occasionally, the pain goes up to 9/10. The upper back is stiff. Both shoulders are painful and stiff. Pain radiates down to the front of her chest. Pain is worse at night. Overall, there has been no improvement over eight years since the accident.
She reports restriction in shoulder movements which vary from day to day, some days are better than others.
CURRENT TREATMENT
She takes Duloxetine 60mg, Pantoprazole 40mg, Diazepam 2mg and Panadeine forte at night.
She has stopped physiotherapy. Acupuncture only gave her short term relief.
She is awaiting assessment by the Royal North Shore Hospital pain clinic and is awaiting to see a psychiatrist.
PAST HISTORY
There was a pre-existing right shoulder condition which she said occurred due to a bump on a dance floor in 2015. She had a cortisone injection and she reports that the shoulder symptoms had settled prior to the subject motor vehicle accident.
EMPLOYMENT HISTORY
She worked for Macquarie Bank full-time at the time of the accident. She is now working for TAL in the life insurance section as a manager. Her work is office-based and she normally works from home. She has had an ergonomic adjustment to her workstation and is allowed to take breaks every 20 minutes and lie down when she gets too sore. Her workplace is aware of her rest breaks. She is still managing to work full-time.
SOCIAL HISTORY
She lives in the Ryde with her parents. She has two grown up daughters.
She is not doing any household chores. She said her parents do it. She can drive and go shopping. She does no exercise, no gym, has no hobbies. She can do some small amounts of food shopping. She does no yard or garden activities.
INVESTIGATIONS
She did not bring any x-rays with her.
PHYSICAL EXAMINATION
On examination, she weighed 61.4kg. She was 163cm tall.
She appeared to sit comfortably and walked with a normal gait and posture without appearing to be in any obvious distress.
She was tender over the cervical spine but cervical lordosis was maintained. There was reduced rotation to both left and right by half. Lateral flexion to left and right was reduced by half. She had virtual full neck flexion but extension was reduced by one-third. There was asymmetry of neck movement but there was no spasm or guarding.
Brachial stretch tests were negative. There were no neurological deficits in her upper limbs. Muscle power, tone and reflexes were normal and there were no sensory changes.
Upper arm measurements were 22.5cm on both sides, 10cm above the olecranon. Forearm measurements were 21cm on both sides, 10cm below the olecranon.
At the thoracic spine there was no spasm or guarding. Range of motion was reduced at the extremes symmetrically. There were no radicular complaints or evidence of radiculopathy.
At the shoulders, she had tenderness over both AC joints. There was stiffness and passive restriction in shoulder movements. Active range of motion was variable. Maximal ranges measured with a goniometer are recorded in the below:

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Abduction	70°	60°
Flexion	80°	60°
Extension	20°	20°
Adduction	20°	30°
External rotation	0°	0°
Internal rotation	70°	70°

Repeated movements were not consistent. This was brought to her attention. She said pain and stiffness affects the movements. Impingement signs were negative. There was some muscle wasting around both shoulder girdles.
OPINION
Ms Obaidi reports having shoulder symptoms fairly soon after the motor vehicle accident and this was diagnosed as adhesive capsulitis and thought initially by
Dr Goldberg to be related to the accident. I would accept that there were shoulder symptoms and injury from minor trauma to both shoulders which then led to the adhesive capsulitis. However, normally adhesive capsulitis resolves within three years following occurrence. Her restriction in shoulder movement is now not consistent with the known pathology. The injury to the shoulders is deemed to be soft tissue injuries.
In terms of whole person impairment assessment, her neck is DRE II, Cervicothoracic Spine Table 73, page 110. She has asymmetry of neck movement. This results in 5% whole person impairment.

The thoracic spine symptoms are related to the neck injury. Assessed under Table 74 page 11 it is DRE 1 and receives 0%WPI.
The shoulders cannot be assessed using range of motion as the movements are not consistent (para 6.50.5 MAG). They are best assessed by analogy in reference to mild crepitation of the AC joint which would most closely align with any ongoing shoulder restriction expected to be present. In reference to Tables 18 and 19 (AMA 4^th Ed), this results in 2.5% upper extremity impairment rounded to 3% UEI, which converts to 2% whole person impairment for the right shoulder. The same calculations are made for the left shoulder.
Her total whole person impairment is 9%.
There is no evidence of impairment in the right shoulder immediately before the time of the accident. Whilst the claimant had sought treatment for a shoulder complaint in November 2015, nothing further seems to have taken place in that regard. No deduction can be made as the Panel does not have any earlier permanent impairment information such as range of motion measurements.”

The Panel adopts the report and findings of Medical Assessor Rosenthal.

CAUSATION AND REASONS

CAUSATION

The Motor Accident Guidelines

The Guidelines identify the test for causation in cls 6.6 and 6.7.[1]
[1] Causation is defined in the Glossary at page 316 of the American Medical Association Guides 4th edition (AMA 4 Guides). It is in the same terms as Clause 6.6 of the Guidelines.
Clause 6.6 provides:
“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:
(a) The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
(b) The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.”
Clause 6.7 provides:
“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.”

The authorities

In Ackling v QBE Insurance (Aust) Ltd,[2] Johnson J indicated that the task of a review panel in assessing whether an injury was caused by the relevant accident is "a practical one". His Honour also observed that a review panel will derive practical assistance from the Guidelines when undertaking the task of assessing causation.[3]
[2] [2009] 75 NSWLR 482; [2009] NSWSC 881.
[3] At [87]. Justice Johnson was then referring to the predecessors to clauses 6.5-6.7 of the Motor Accident Guidelines, being clauses 1.7-1.9 of the Permanent Impairment Guidelines.
Section 5D of the Civil Liability Act 2002 (CLA) also needs to be considered when assessing causation.

90.Section 5D of the CLA provides:
"General principles
(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm ('factual causation), and
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ('scope of liability')."

There are two elements to address when assessing causation under s 5D(1):
"factual causation";[4] and
"scope of liability".[5]
[4] See s 5D(1)(a) of the CLA - this is the statutory restatement of the “but for” test (see Adeels Palace Pty Ltd v Moubarak [2009] 239 CLR 420; [2009] HCA 48 at [45]) i.e. but for the negligent act or omission, would the harm have occurred?
[5] See s 5D(1)(b) of the CLA. See Adeels Palace at 42; Wallace v Kam [2013] 250 CLR 375; [2013] HCA 19 at [12].
Assessing "factual causation" and "scope of liability" involves making value judgments.[6]
[6] There is a conflict between s 5D and the Guidelines. Section 5D requires the use of the “but for” test and the Guidelines state that while the “but for” test may be useful in some cases, it “is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes”..
Campbell J in Owen v Motor Accidents Authority (NSW),[7] adopted Justice Johnson's approach with a caution touching upon the CLA:
"Given that the task of the Medical Review Panel in determining the causation question is not solely a medical determination within the expertise of the assessor's constituting the Panel, the position has, with respect, been aptly put by Johnson J in Ackling at p 500 [87] that the Assessors will derive practical assistance from this part of the Permanent Impairment Guidelines. But it is well to emphasise that the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by Civil Liability Act 2002, s 5D. (See s 3B(2)) of the Civil Liability Act (the CLA)."[8]
[7] [2012] 61 MVR 245; [2012] NSWSC 650.
[8] At [27].
In Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance [2021] NSWSC 804 Justice Walton set aside the decision of a Medical Review Panel. The issues determined in Kinchela involved applying the definition of “minor injury” (now referred to as threshold injury”) and involved a question of causation in respect of an amputated toe.
The correct principles to apply relating to causation were discussed in Kinchela as follows:
“[38] The second defendant’s task was not to answer the question of whether there was any contemporaneous evidence, or corroborative evidence, to support an injury to the right 2nd toe, but whether the accident contributed to the right 2nd toe infection, avulsion of the nail and ultimate right 2nd toe amputation. By focussing only on whether there was a contemporaneous record of complaint in the clinical notes or the ambulance notes, the actual question it was required to consider was overlooked – did the motor vehicle accident materially contribute to the right 2nd toe amputation?
[39] The second defendant fell, therefore, into the type of error identified in Owen v Motor Accidents Authority of NSW(2012) 61 MVR 245; [2012] NSWSC 650 at [51]- [52]; Bugat v Fox(2014) 67 MVR 150; [2014] NSWSC 888 (‘Bugat’); AAI Ltd t/as GIO v McGiffen(2016) 77 MVR 348; [2016] NSWCA 229 (‘McGiffen’). The error identified is in treating the absence of a contemporaneous complaint or report of injury as determinative of the issue of causation. Associate Justice Harrison cited the decision in Bugat with approval in Briggs. Her Honour said at [64]-[65]:
[64] In Bugat, RS Hulme AJ held that the lack of contemporaneous evidence cannot be determinative of causation. His Honour stated at [31]-[32]:
‘[31] One of the pivotal questions for the panel was whether the injuries of which the plaintiff complained had been caused (or materially contributed to) by the motor accident she alleged. To that question the presence or absence of contemporaneous evidence of injury was relevant but not determinative in circumstances where there was other evidence, in particular the plaintiff’s claim form made but 15 days later, the remarks of Dr Hor in his report of 13 July 2011, and the plaintiff’s statements which the certificate discloses were made to the panel to the effect that at the time of the accident she suffered ‘pain in her neck going out to both shoulders’.
[32] While I accept that, as an administrative decision-maker, the panel’s reasons should not be subjected to ‘minute and detailed textual criticism in the hope of finding something on which to base an argument’ [Allianz Australia Insurance Ltd v Motor Accidents Authority (NSW) (2006) 47 MVR 46, [2006] NSWSC 1096 at [36]] in expressing themselves the way they have, the panel have clearly shown that they have regarded what they perceived as the absence of contemporaneous evidence as determinative on the issue of causation. In doing so they erred, the error being one apparent on the face of the record.’
[65] In McGiffen, the Court of Appeal held at [64] – [65]:
‘[64] 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.
[65] In deciding causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury to the thoracic spine the review panel only partially addressed the question posed by s 58(1)(d)(of the Motor Accidents Compensation Act). For that reason, the decision recorded in the panel’s certificate must be treated as a purported and not real exercise of its statutory function under s 58(1)(d), leaving that function unexercised, and the Authority and the panel liable to the relief granted by the primary judge for jurisdictional error.’
[40] The second defendant failed to apply the correct test of causation as set out in the relevant Guidelines informed by s 5D of the Civil Liability Act 2002 (NSW) and the common law. As result, the second defendant failed to apply the appropriate legal test in order to discharge its jurisdictional function.”
Issues for consideration of causation were discussed at length n Briggs v IAG Limited trading as NRMA Insurance [2022] NSWSC 372. Because of the detail with which Wright J considered these, the Panel repeats this in full. Wright J said;
“67 The second ground of review concerned the second review panel’s approach to the issue of causation. It was submitted that the panel applied an erroneous test in relation to causation and thus failed to exercise its jurisdiction.
68 As to whether the motor vehicle accident trauma was a cause of a “left posterolateral annular tear” with “mild disc desiccation” shown on Mr Brigg’s MRI test results, the second review panel concluded that causation had not been established because:
(1) ‘[a]t present, causation cannot be determined by medical imaging, unless there are sequential studies, either side of a motor vehicle accident and within a short time period’, and Mr Briggs only had post-accident MRI results;
(2) ‘a delamination may not fall within the definition of a tear’; and
(3) ‘the defect may not be the source of his pain and disability’.
69 The substance of the reasoning was that since there could be no scientific certainty that the L4/5 left posterolateral annular tear with mild disc desiccation was caused by the accident based on medical imaging and there was a possibility that the injury was not a tear and may not have been what led to Mr Brigg’s pain and disability, causation had not been established.
70 This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce[2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):
‘138 Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:
‘An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference.’’
71 The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes[1970] 2 NSWR 238 as follows, at 242:
‘... it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.’
72 Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].
73 The second review panel did not address the question of whether on the balance of probabilities the motor vehicle accident caused the annular tear even though there might be no scientific certainty. Furthermore, the second review panel’s reasoning did not reflect the approach to determining causation in cll 6.6 and 6.7 of the Guidelines, which in my view is consistent with the legal principles I have outlined.
74 The present case is not one where medical science established that there was no possible connexion between the motor accident and Mr Brigg’s relevant injuries. From the material available, the second review panel accepted that the motor accident in this case could have caused or contributed to Mr Brigg’s L4/5 left posterolateral annular tear. Indeed, the panel expressly accepted that:
‘the plaintiff was involved in relatively severe front-end collision. The medical and biomechanical literature supports the conclusion that spinal injuries with resulting pain and disability can arise from this type of trauma.’
75 This being so, it was necessary for the panel to consider whether the motor accident did cause or contribute to Mr Brigg’s condition. This required, not a consideration of material derived as a result of an internet search for ‘all past and recent high-quality research articles pertaining to MRI imaging of the lumbar spine, with a focus on injury, degeneration and pain’, but rather a consideration of the material referred to in cl 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; and
(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.
76 In Mr Briggs’s case that would include, without attempting to be exhaustive:
(1) Mr Briggs’s age, circumstances and relevant medical history at the time of the motor accident, including whether there was any previous history of lumbar spine pain;
(2) the particular nature and extent of the accident and the forces that would have been operative on Mr Briggs as a result of the accident; and
(3) Mr Briggs’s circumstances and relevant medical history including the MRI results and results of other medical examinations and testing, after the motor accident.
77 In light of all that material and in accordance with cll 6.6 and 6.7 of the Guidelines, the panel should then have made ‘a non-medical informed judgment’ as to whether it was likely that the motor accident caused or contributed to Mr Briggs’s injury in question.”
The Panel must consider whether, with the claimant’s shoulder complaints and development of adhesive capsulitis, the disability is causally related if there was little or no complaint about this area of disability post-accident as the insurer submits. However, the Panel does not accept that this is the case. The claimant did make complaint about her shoulders relatively close in time after the accident.
In the accident involving the claimant, she was the driver of a car which appears to have been involved in a low-speed impact. The airbags were not deployed, assuming these were in her car. The claimant was able to drive her car immediately after the accident. Repairs to the car were described by the Medical Assessor as being less than $1,000. The claimant has not disputed this.
The Panel is mindful that a lack of reported shoulder complaint or consistent complaint should not preclude a conclusion that this condition arose from the accident.
Scientifically, there is a possibility that the accident could have caused injury to both of the claimant’s shoulders and the development of adhesive capsulitis. However, the impact was not forceful. The Panel confirms that it did not have available to it photographs of the damage to the claimant’s car which were referred to by Medical Assessor Wilding nor has it seen the repair invoice to which he referred. The Panel notes however that the claimant was able to drive her car home immediately following the accident.
While a lack of contemporaneous complaint or record, as the insurer submits, is not determinative, the reality is that the claimant did make a complaint about an injury to her shoulders from the accident the day following the accident, to
Dr Huang. She reported firstly, the accident and secondly that she was suffering neck and shoulder pain. Thereafter, on 1 May 2016 the claimant sought treatment for persistent neck pain, stiffness and discomfort and on 15 May 2016 the claimant consulted her GP and reported pain in her shoulders, hands, arms, neck and upper back. This is entirely contradictory of the insurers submission that there was no complaint for six weeks post-accident. There is also no other event which might be appointed to as having caused injuries to the claimant from the time of the accident to the following day when she reported it to her GP.
The Panel must also ask itself in considering whether the accident contributed to the claimant’s physical injuries as referred to it by the Commission, whether the claimant’s condition arises because of contribution by the accident, and whether the accident materially contributed to that condition and need for treatment.
The Medical Assessor gave no consideration to the crash impact of the accident and subsequent condition. He accepted that the condition arose 4-5 weeks after the accident but did not have anything before him to verify this.
On the balance of probabilities, can it be said that the cervical spine and shoulder injuries suffered by the claimant were caused by the accident. The Panel is satisfied that this is the case. The claimant made immediate complaint of such injuries the day following the accident and thereafter. The claimant did have what the Medical Assessor described as significant episodes of shoulder pain between September and November 2015 but there is no report of these symptoms being symptomatic at the time of the accident.

Would the impairment have occurred, if not for the accident? The Panel notes that the prior shoulder complaint had occurred in 2015, before the accident. The claimant therefore had a predisposition to this however, the claimant was asymptomatic at the time of the accident.
The Panel is satisfied that the accident and impact has had a more than negligible effect on the condition suffered by the claimant. The claimant’s shoulder complaints and her cervical spine complaint, on the findings of the Panel, have arisen because of the accident.
Whilst the claimant had previously been treated for shoulder symptoms, this was 4-5 months before the accident and there is no record of the claimant being symptomatic about this at the time of the accident.
Regarding the claimant’s left and right arm musculoskeletal injuries, the Panel finds that to say there is no evidence of left and right arm strain injuries and these listed injuries. These injuries were not consistent with the mechanism of the accident.
The adhesive capsulitis causation was addressed by Dr Goldberg in his report of 31 August 2016 where he stated that the claimant had ‘post traumatic bilateral adhesive capsulitis’. The Appeal Panel did not accept this but on the balance of probability the Panel accepts that this was reasonable as Dr Goldberg was the first shoulder specialist to examine the claimant after the accident. The severity of the accident is not a consideration as the Panel are not experts in this regard. The expertise of the Panel does not extend to say that there were no traumatic forces to the shoulders in the accident.
As adhesive capsulitis normally resolves within three years, the Panel regards this as an ongoing soft tissue injury as the likely injury that is still causing shoulder movement restriction. The Panel considers this a combination of capsulitis/soft tissue injury as listed.

CONCLUSION

This is a dispute between the claimant and the insurer about whether the injuries caused by the accident give rise to a permanent impairment greater than 10%.
The Panel is satisfied that the accident and impact has had a more than negligible effect on the claimant’s neck and shoulder condition suffered by the claimant. Those injuries were caused by the accident.
The Panel considers that the WPI assessment of 40% by Dr Gehr and the WPI assessment of 30% by Dr Duckworth are not an accurate or correct application of the Guidelines. They are not reflective of the extent of the claimant’s injuries and the nature of the impact.

DETERMINATION

The Panel revokes the certificate of Medical Assessor Home dated 1 March 2024.
The Panel is satisfied that the accident and impact has had a more than negligible effect on the claimant’s neck and shoulder condition suffered by her as a result of the accident.
The Panel has assessed the claimant’s WPI at 9%.

[2024] NSWPICMP 712

14 October 2024