Odisho v Insurance Australia Limited t/as NRMA

DETERMINATION OF REVIEW PANEL
CITATION:	Odisho v Insurance Australia Limited t/as NRMA [2024] NSWPICMP 449
CLAIMANT:	William Odisho
INSURER:	Insurance issued by Insurance Australia Limited t/as NRMA Insurance
REVIEW PANEL
MEMBER:	Terence Stern OAM
MEDICAL ASSESSOR:	Margaret Gibson
MEDICAL ASSESSOR:	Mohammed Assem
DATE OF DECISION:	8 July 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of medical assessment; medical dispute about the degree of permanent impairment; Medical Assessor determined that the injuries caused by the accident gave rise to permanent impairment of 3%; Medical Assessor found injuries to the cervical and lumbar spines, shoudlers and knee were caused by accident; Medical Review Panel considered causation; Motor Accident Guidelines applied; permanent impairment determined on the clinical signs presented at examination; Held – Medical Review Panel held only spinal injuries caused by accident; assessed permanent impairment to the lumbar spine at 10%; Medical Assessment Certificate revoked.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Woo dated 18 September 2023 and substitutes its determination to certify that the injuries referred to the Review Panel and caused by the motor accident gave rise to a whole person impairment of 10%.

STATEMENT OF REASONS

INTRODUCTION

On 20 July 2020, William Odisho (the claimant), was injured in a motor vehicle accident (the accident). Further details of the accident are set out below.
Mr Odisho brought a claim for common law damages.
Insurance Australia Limited, ABN 11 000 016 722, trading as NRMA Insurance (NRMA) is the insurer liable to pay any damages.
A medical dispute about the degree of Mr Odisho’s whole person impairment (WPI) has arisen. This is a medical assessment matter under Schedule 2, cl 2(a) of the Motor Accidents Injuries Act 2017 (MAI Act).
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor: s 7.20 of the MAI Act.
The dispute was referred to the Personal Injury Commission (the Commission) and the Commission assigned it to Medical Assessor Alexander Woo for assessment.
On 18 September 2023, Medical Assessor Woo determined that Mr Odisho had a WPI of 3%. He issued a certificate under s 7.23(1) of the MAI Act.

REVIEW PROCEDURE

Mr Odisho sought a review (the Review).
A delegate of the President of the Commission determined there was reasonable cause to suspect that the medical assessment was incorrect in a material respect and referred the matter to the Review Panel (the Panel).
The review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission: s 7.26(5A) of the MAI Act. The President’s delegate has convened this Panel to conduct the review.
The Review of the Medical Assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect. The Review is by way of a new assessment of all matters with which the medical assessment is concerned: s 7.26(6) of the MAI Act. Section 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of an agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the Personal Injury Commission Act 2020 (PIC Act). A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application: Rule 128 of the PIC Rules.
On 30 November 2023, the Panel informed the parties that it required a re-examination of Mr Odisho. Arrangements were made for Mr Odisho to be re-examined by Medical Assessor Assem on 9 May 2024.

LEGISLATIVE FRAMEWORK
General provisions

Sections 5D and 5E of the Civil Liability Act 2002 (the CLA) apply to the MAI Act: s 3B(2) of the CLA.
Mr Odisho’s claim and entitlement to compensation are governed by the provisions of the MAI Act. An injured person can make a claim for both economic losses and non-economic loss damages.
However, s 4.11 of the MAI Act provides that no damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%.

Permanent impairment assessment

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 in respect of the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed: cl 6.2 of the Guidelines.
Permanent impairment is assessed in accordance with Chapter 6 of the Guidelines.
Causation of injury is addressed in cls 6.5, 6.6 and 6.7 of the Guidelines.
Clause 6.6 of the Guidelines notes:
“6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
‘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.'
This, therefore, involves a medical decision and a non-medical informed judgement.”
Clause 6.7 of the Guidelines states:
“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.”
Pre-existing impairment is addressed in cls 6.31, 6.32 and 6.33 of the Guidelines.
The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored: cl 6.31 of the Guidelines.
Clause 6.32 of the Guidelines states:
“The capacity of a medical assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA 4 Guides (page 10): 'For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.”
Pre-existing impairments should not be assessed if they are unrelated or not relevant to the impairment arising from the motor accident: cl 6.33 of the Guidelines.

ASSESSMENT UNDER REVIEW

Medical Assessor Woo examined Mr Odisho on 14 September 2023 and issued a certificate under s 7.23 of the MAI Act.
Medical Assessor Woo was referred the following injuries for assessment:
(a)    cervical spine – soft tissue injury/mechanical derangement and radiculopathy;
(b)    lumbar spine – soft tissue injury/mechanical derangement and radiculopathy;
(c)    both shoulders – rotator cuff injuries and,
(d)    right knee – medial and lateral meniscal tears with moderate medial meniscus extrusion into the meniscotibial gutter/subchondral medial femoral condyle fracture.
At [3] and [4] in his reasons, Medical Assessor Woo considered both parties submissions.
At [8], he took a pre-accident history. He noted that Mr Odisho was born in Iraq and worked as a plumber. He came to Australia with his wife, in 1999. He worked as a waiter, in plumbing and various jobs. He obtained a qualification in house painting and became self-employed. He stopped working during the COVID pandemic and has not returned to work. He has been on a benefit from Centrelink.
Mr Odisho did not recall any previous injuries. Medical Assessor Woo noted the following history which was obtained from the report of Dr Uthum Dias dated 17 October 2022:
“Mr Odisho had been involved in a previous motor accident on 27 September 2011. He recalls that he was driving a car when he lost control of the vehicle, due to slippering and wet conditions. He recalls that his vehicle rolled over several times, before landing in a creek on the driver side. He was taken to Liverpool Hospital. He sustained injuries to his neck and lower back. Mr Odisho’s injuries were treated with physiotherapy, analgesia, anti-inflammatory tablets, home exercises, hot packs and topical ointment. He continued to experience ongoing cervical spine pain, stiffness and discomfort, up until the subject accident in July 2020. Mr Odisho also suffered with intermittent lower back pain, up until around 2015… Mr Odisho could not recall any significant previous injuries affecting his shoulders or right knee prior to the subject accident. I note that he did complain of right knee pain to his treating General Practitioner, Dr Emil Guirguis, on 2 April 2014, and again complained of knee pain on 20 August 2014. Mr Odisho could not recall these previous bouts of right knee pain, and believes that his right knee was asymptomatic prior to the subject accident… In summary, prior to the subject accident, Mr Odisho was suffering from ongoing neck pain, stiffness and discomfort, and occasional lower back pain and discomfort. He did not suffer from significant pre-existing right knee, or shoulder pain prior to the subject accident.”
Medical Assessor Woo took a history of the accident at [9] and a history of symptoms and treatment following the accident at [10]:
“On 20 July 2020, Mr Odisho was the driver of a Holden Commodore station wagon and wearing a seat belt. It was around 7:00 am and he was going to meet a friend and go to fishing. He was at a set of traffic lights on Cumberland Highway, near the intersection between the Cumberland Highway and Old Windsor Road. He came to a stationary halt at a set of traffic lights when he was rear-ended by a Mitsubishi Outlander 4WD. His vehicle was pushed forward but did not hit any other vehicle. Air bags in his vehicle were not deployed. He did not lose consciousness. His right knee impacted the dashboard under the steering wheel. He was able to got out of his vehicle and exchanged details with the other driver. Police attended the scene but no ambulance was called. He told me he went home by a taxi. This is different from that reported by Dr Dias. Dr Dias stated: ‘Police and ambulance attended the scene of the accident; however, Mr Odisho did not attend a Public Hospital Emergency Department. Mr Odisho recalls that he was able to drive away from the accident scene after exchanging details with the offending driver’.”
Medical Assessor Woo took a history of the current symptoms and proposed treatment at [12] and [13].
Mr Odisho complained of fluctuating and intense lower back pain radiating to the right leg down to the foot. He rated the pain level at 6/10 (0 no and 10 most severe pain).
He had numbness in the right leg over the gluteal region down to the calf on the lateral side.
He complained of constant neck pain at 9/10.
He complained of right shoulder pain and slight left shoulder pain.
Mr Odisho had not had any treatment for his physical injuries for the last two years.
Medical Assessor Woo conducted a clinical examination. The results of this examination were set out in his reasons at [13]-[17]:
“13. General presentation
Mr Odisho is right hand dominant.
He is 173cm in height and weighs 73kg.
He walked into the consulting room with a limping gait.
14. Cervical spine (cervicothoracic)
There was no specific tenderness, spasm or guarding in the cervical spine.
Range of movement was restricted to 2/3 normal in all direction but I observed a full range of motion during informal times, in particular when he was turning his head to the right while talking to the interpreter who was seated on his right-hand side.
There was no dysmetria.
There were no non-verifiable radicular complaints.
Neurological examination of both upper limbs
Reflexes were normal and symmetrical.
There was no weakness and no atrophy. Upper arm girth was equal on both sides. The right forearm girth was 1cm bigger than the left.
There was no sensory loss.
Upper arm girth was equal on both sides.
15. Lumbar spine (lumbosacral)
There was tenderness in the lumbar spine. There was no spasm and no guarding.
Range of movement was 2/3 normal in flexion, extension and lateral flexion. I consider this being normal for his age group with age-related degenerative changes in the spine.
There was no dysmetria.
Stright leg raising was 90° on the right with associated lower back pain. It was 100° on the left. Sciatic nerve root tension signs were negative.
There were non-verifiable radicular complaints – pain and numbness in the right lower limb. Neurological examination of both lower limbs
Reflexes were normal and symmetrical.
There was no weakness and no atrophy. The right thigh girth was 1cm bigger than the left (previous left knee injury and arthroscopic surgery).
There was no sensory loss in both lower limbs.
16. Upper extremity
There was slight non-specific tenderness in the right shoulder.
Range of movement was measured with a goniometer.
17. Lower extremity
There was no effusion in the right knee. There was no focal tenderness and no crepitus. There was no ligamentous instability. Clinical signs of meniscal injury were negative.
Range of movement was measured with a goniometer.”
At [19]-[20], Medical Assessor Woo provided a summary of the relevant radiological and medical imaging.
He set out his diagnosis, considering causation, and reasons at [21]:
“Based on the history of the accident, mechanism of injury, clinical and medical imaging findings, Mr Odisho has the following injuries:
(a)Cervical spine – soft tissue injury/mechanical derangement, no evidence of radiculopathy
(b)Lumbar spine - soft tissue injury/mechanical derangement, no evidence of radiculopathy
(c)Both shoulders – soft tissue injuries
(d)Right knee – medial and lateral meniscal tears with moderate medial meniscus extrusion into the meniscotibial gutter/subchondral medial femoral condyle fracture”
Medical Assessor Woo opined that Mr Odisho had symptoms related to the alleged injuries immediately following the accident or gradually becoming prominent over time. The injuries were caused by the accident.
Medical Assessor Woo concluded that the following injuries were caused by the accident:
(a)    cervical spine – soft tissue injury;
(b)    lumbar spine – soft tissue injury;
(c)    both shoulders – soft tissue injuries, and
(d)    right knee – medial and lateral meniscal tears and subchondral medial femoral condyle fracture.
Medical Assessor Woo certified that the degree of WPI caused by the motor accident was 3%.

SUBMISSIONS
Claimant’s submissions

Mr Odisho provided written submissions via his solicitor, dated 16 October 2023 in respect of the Review. The submissions are summarised below.
The grounds of Review upon which the claimant relied on are as follows:
(a)    Medical Assessor Woo had failed to comply with the requirements of both the AMA4 Guides and the Motor Accident Permanent Impairment Guidelines when undertaking the subject assessment of the claimant’s injuries and disabilities, and determining the claimant’s level of WPI;
(b)    Medical Assessor Woo had failed to take into consideration all the material produced by the parties;
(c)    Medical Assessor Woo had made findings that are materially erroneous in relation to his assessment of the claimant’s physical injuries;
(d)    Medical Assessor Woo had made findings that are substantially inconsistent with the overwhelming preponderance of the treating evidence and the evidence relied upon by both parties in this matter in relation to the assessment of the claimant’s physical injuries, and
(e)    Medical Assessor Woo had not correctly calculated the claimant’s level of WPI in accordance with the AMA4 Guides and the Motor Accident Permanent Impairment Guidelines.

Lumbar Spine

Mr Odisho submitted that based on the clinical examination of Medical Assessor Woo, and in accordance with the AMA4 Guides and the Motor Accident Permanent Impairment Guidelines as addressed in the below submissions, Medical Assessor Woo has placed Mr Odisho in the incorrect category for the impairment evaluation.
In assessing the lumbar spine impairment, the Medical Assessor (in accordance with the AMA4 Guides and the Motor Accident Permanent Impairment Guidelines) must consider the appropriate category for the impairment evaluation.
To determine the correct diagnosis-related estimates (DRE) category, the Medical Assessor must consider Table 7 of the Motor Accident Permanent Impairment Guidelines and use it in conjunction with the DRE descriptors on pages 103 to 105 of the AMA 4 Guides.
Mr Odisho submitted that his medical records showed that the claimant had made complaints to his treating doctors since the date of the accident. In these circumstances, Medical Assessor Woo should have considered this material which would have shown that the history and findings observed by his treating doctors is compatible with a specific injury and include intermittent or continuous muscle guarding, and that there is non- uniform loss of range of motion, and non-verifiable radicular complaints.
Given the above, it was submitted that the claimant’s lumbar spine injury should be assessed as falling within the realms of DRE Category II, which equates to a 5% WPI.

Cervical spine

Mr Odisho submitted that based on the clinical examination of Medical Assessor Woo, and in accordance with the AMA 4 Guides and the Motor Accident Permanent Impairment Guidelines, Medical Assessor Woo has placed the claimant in the incorrect category for the impairment evaluation.
The medical evidence provided to the Medical Assessor at the time of assessment, as well as the physical examination of the claimant, showed that the above criteria had been met to classify the claimant within DRE Cervicothoracic Category 2 (at the very least).
The medical records confirmed that the claimant had suffered a chronic injury to the region of the cervical spine. It is submitted that Medical Assessor Woo had 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. That is:
(a)    loss or asymmetry of reflexes;
(b)    non-verifiable radicular complaints;
(c)    non-uniform loss of motion, and
(d)    atrophy.

As such, Mr Odisho’s cervical spine should be assessed as falling within the realms of DRE Category II, which equates to 5% WPI.
Medical Assessor Woo provides that: “Thigh circumference was equal on both sides during my assessment.” The claimant submits that during his assessment, he confirmed in his report that he observed that “the right thigh girth was 1cm bigger than the left”.

NRMA’s submissions

NRMA provided written submissions dated 21 April 2024, in respect of the Review. The submissions are summarised below.

Lumbar spine

NRMA noted the claimant’s submission failed to refer to Table 6.7 of the Guidelines which provides the definition of the inclusion criteria for DRE I and DRE II. These included pain with guarding, non-verifiable radicular complaints, or dysmetria.
NRMA submitted the Medical Assessor considered all the relevant inclusion criteria, including those relevant for radiculopathy as defined under clause 6.138 of the Guidelines
(a)    there was no evidence of dysmetria, as stated by the Medical Assessor;
(b)    no guarding;
(c)    the non-verifiable radicular complaints did not follow a dermatomal distribution as required under Table 6.8, and
(d)    radiculopathy
(i)normal reflexes and symmetrical;
(i)sciatic nerve root tension was negative;
(i)no muscle atrophy. Per Table 6.8, a 2cm thigh girth difference is required. Furthermore, the Assessor notes history of surgery which may further explain that atrophy rather than attributable to a nerve root;
(i)no Weakness and,
(i)no sensory loss.
The Medical Assessor’s determination that Mr Odisho’s complaints match a DRE I was consistent with the Medical Assessor’s examination.

Cervical spine

NRMA submitted that the Medical Assessor considered all the relevant inclusion criteria, including those relevant for radiculopathy as defined under clause 6.138 of the Guidelines.
NRMA noted the claimant’s reference at [47] to Table 8 rather than 6.8. However, this omitted the requirement that the difference must be attributable to a relevant nerve root affected. However, there were no weaknesses or sensory issues to attribute such a difference. Furthermore, the Medical Assessor noted the claimant was right hand dominant which may further explain the differences per Table 6.8.
NRMA submitted it was unclear why at [46]-[47] the claimant submitted the presence of symmetrically reduced range of motion satisfies the presence of asymmetry of reflexes when the Medical Assessor states reflexes were normal and symmetrical on his neurological examination.

MEDICAL EVIDENCE

The Panel met for the first time on 25 January 2024, and reported:
“Overview
1.      Medical Assessor Woo on 18 September 2023, determined that injuries to the Claimant’s cervical spine, lumbar spine, right and left shoulder, and right knee, collectively gave rise to impairments assessed at 3% WPI.
2.      Mr Odisho applied for a determination by the President’s Delegate that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect.
3.      That Application was accepted, and the Delegate having determined that the Assessor incorrectly assessed the Claimant, the matter was referred to a Review Panel for a review of the Determination.
4.      Essentially, the Delegate was satisfised that the Medial Assessor was incorrect in assessing the Claimant’s impairment to the lumbar spine as DRE Category 1. Panel’s Discussion
5.      The Panel had a wide-ranging discussion and came to the conclusion:
I. Further documents would be required
II. Re- examination is necessary.
Directions
6.      Mr Odisho is to present himself for re-examination by Medical Assessor Assem at 11:00am on 5 March 2024.
Note: The case manager is to facilitate the examination by setting up and sending the AVL links to Medical Assessor Assem, Medical Assessor Gibson and the Claimant.
Note: Medical Assessor Gibson may join the AVL meeting for part of the time.
Directions for Production
7.      The Medical Review Panel requires production to Pathways before 5:00pm on Friday 1 March 2024 of:
I. All physiotherapy records of the treating physiotherapist from the date of the accident to the most recent treatment.
II. Clinical notes of any general practitioner including Dr Renold Guirgis, who has treated Mr Odisho since 27 September 2011.”
The Panel met for a second time on 25 March and further reported:
“REVIEW PANEL REPORT
1.      The Medical Review Panel (MRP) has reached a tentative view of the issues to be determined.
2.      The MRP wishes to revisit those views after receiving the General Practitioner records.
3.      The MRP made Directions on 25 January 2024. Nothing was produced.
4.      On 21 March 2024, the MRP extended the time for production of the records to 25 March 2024 at 12pm. Nothing has been produced.
DIRECTIONS
5.      The MRP now requests the PIC to issue a formal subpoena to Dr Renold Guirgis for the production of the claimant’s clinical records from 27 September 2011 to the current date, by 23 April 2024 at 5pm.”
On 21 May 2024, the Panel provided the following directions:
“The Review Panel notes that the only material on the Pathways portal by way of documentation is as follows:
a) The Insurer’s bundle, dated 17 October 2023
b) The Claimant’s submissions, dated 16 October 2023
c) The PIC Certificate of Medical Assessor Woo
The Panel will make a final attempt at trying to obtain the material that it needs to arrive at its decision. If it does not receive the material, directed by 31 May 2024 (via Pathways), the Panel will complete its Review on the material that it has. This may result in the Panel not being satisfied on material aspects of the claim, including without limiting the generality of causation.
The Panel accordingly directs the Production of the following material by 31 May 2024: (a) The Claimant’s clinical notes from treating general practitioner, Dr Renold Guirgis, from 27 September 2011 to the current date.”
On 23 May 2024, the Panel made further directions:
“In order to understand the severity of the MVA, the claimant’s injuries and the damage to the vehicle, the Review Panel further requires production to Pathways by 5pm on 31 May 2024 of:
a) the complete medical records prior to the MVA, including detailed documentation of the claimant’s osteoarthritis, previous musculoskeletal injuries, surgeries, and treatments;
b) a timeline of medical consultations following the MVA and an explanation for any delays in seeking treatment;
c) clarification on whether initial symptoms were immediately related to the accident or appeared progressively;
d) all imaging studies of the lumbar spine including MRIs or CT scans and,
e) photographs of the damaged vehicle.”
Mr Odisho requested an extension to the above directions until 12 June 2024, which the Panel granted.

Claimant’s submissions to directions made on 23 May 2024

On 12 June 2024, Mr Odisho’s solicitor made the following submissions on behalf of Mr Odisho:
“(a)    The Claimant’s entire medical records are contained in the following enclosed documents:
(i)Annexure 2: Clinical Records from Dr Guirguis dated 12 March 2021
(i)Annexure 3: Clinical Records from Dr Guriguis dated 8 June 2022
(i)Annexure 4: Clinical Records from Dr Guriguis dated 20 May 2024.
(i)Annexure 5: Clinical Records from Dr Walker dated 8 June 2022
(b)    Please find enclosed a timeline of the medical consultations following the motor vehicle accident (being on 20 July 2020). The Claimant submits that there was no delay in seeking medical treatment following the subject accident. As provided in the timeline of medical consultations (Annexure 6), the Claimant consulted his General Practitioner (Dr Guirguis) on the date of accident (being 20 July 2020), and in his notes, Dr Guirguis recorded the following:
“MVA today at 7am sustained injuries to the neck and lower back localised tenderness over the lower cervical and lower lumbar spine spasm in the para spinal muscles Thereafter, the Claimant remained under the care of Dr Guirguis.”
(c)    The claimant refers to paragraph b above. The claimant’s symptoms, as confirmed by the medical records of Dr Guirguis appeared on the date of the accident. It is submitted that the initial symptoms were caused by the subject accident.
(d)    The claimant underwent the following imaging studies to the lumber spine:
(i)Eos-Low Dose X-ray Lower Limbs dated 24 December 2020 (Annexure 8).
(i)X-ray Cervical, Thoracic and Lumbar Spine dated 20 July 2020 (Annexure 9).
(e)    Please refer to the Annexure 7 (photographs of the damaged vehicle from the subject accident).”

Xray cervical, thoracic and lumbar spine, dated 20 July 2020

The findings were as follows:
(a)    Xray cervical spine:
(i)Mild reversal of the normal cervical lordosis, which can be seen with muscle spasm.
(ii)Mild degenerative change with regions of moderate bilateral foraminal stenosis present.
(b)    Xray thoracic spine:
(i)Mild degenerative change in the thoracic spine.
(c)    Xray lumbar spine
(i)Report not included in claimant’s bundle.

End Orthogonal Scanning (EOS) – low dose X-ray lower limbs, dated 24 December 2020

The findings were reported as follows:
“Mild loss of joint space within the superocentral aspect of the right hip joint. Joint spaces within the knee and ankle joints bilaterally are grossly preserved.
No evidence of avascular necrosis of the femoral heads.
No focal bone lesion.”

Clinical notes of Dr Emil Guirgis, treating general practitioner.

On 27 September 2011, Dr Guirgis reported the following:
“mvA: while was driving the car wearing seatbelt, it slipped on wet road due to torrential rain, swerved to hit the road fence, rolled over few times before landing in a creek on its driver side, and he released his seatbelt, and came out from the passenger seat to call for help. Went to Liverpool H and was treated conservatively. Inside the car he jolted everywhere sustaining injuries to the neck and lower back, told me that on impact shock was felt, since then c/o neck & lower back pain”
On 12 June 2020, Dr Guirgis reported:
“Neck pain, radiates to the supra-clavicular region and intra-scapular areas, extends over the outer aspect of the arm, hand, and fingers, (increased) by actions like coughing, prolonged sitting and standing and, (increased) by elevating the arm at or above the shoulder height”
On 20 July 2020, Dr Guirgis reported:
“MVA today 20/7/2020 at 7 am: while was driving the car wearing seatbelt, it was hit by another car from behind, jolted forwards and backwards sustaining injuries to the neck and lower back, told me that on impact shock was felt, since then c/o neck & lower back pain.
Examination: no obvious swelling or bruise, localised tenderness over the lower cervical & lower lumbar spine, (decreased) movement in all affected areas, (decreased) straight leg raising, obvious spasm in the para spinal muscles, no neurological deficit.”

Emergency Department (ED) discharge referral from Liverpool Hospital, dated 25 September 2011

In the discharge referral, the summary of progress states:
“51 yo man driver of MVA -10am today, no passengers. Station wagon unsteady on slippery road, collided head on with aluminium fence, vehicle subsequently rolled down embarkment on to side. No LOC. Self-extracted post incident and called ambulance. Ambulating freely on scene. On arrival c/o mild right-sided elbow and knee pain, declining analgesia when offered. Denies EtOH/drug use today.
O/E alert, GCS 15. CN's intact. Mild lower C-spine mid-line posterior tenderness. No focal neurological deficits elicited.
Bloods unremarkable (see attached)
C-spine x-ray reviewed by ED Senior Registrar - no acute injuries
Secondary survey revealed normal C-spine ROM. Minor bruises to right elbow laterally and right knee anteriorly. No other injuries detected.
Discharged on simple analges”

Photographs of the damaged vehicle

The claimant provided photographs of the damaged vehicle which showed extensive damage to the front of the car.

The report of Dr Andrew Keller, dated 16 May 2022

Dr Andrew Keller, an occupational physician who provided a report of 18 May 2022, to NRMA, took a history of the accident.
Dr Keller records, “he showed me photographs of his car that showed mild to moderate damage to the rear”.
Dr Keller also records being told that “following the accident, the car was not driveable…”
Dr Keller provides history of the symptoms and treatment following the accident:
“Mr Odisho reports no loss of consciousness and after a delay of 10 minutes was able to stand and walk at the scene of the accident. He reports no pain or injuries. Following the accident his car was not driveable and he took a taxi home.
Mr Odisho first saw a doctor two days after the accident for a check-up for his normal medical problems and for an X-ray of his spine to make sure there was no issue. On 20 July 2020 he had an X-ray of the spine showing mild degenerative changes and no bony injuries.
He reports he first developed symptoms that he attributes to the accident one or two months after the accident. This included pain in his neck, both shoulders and right knee. He saw his doctor for this and on 7 December 2020 had an MRI of the right knee that showed resolving femoral oedema and osteoarthritis with degenerative tears of the lateral and medial menisci. On 24 December 2020 he had X-rays of both knees reported as normal and an X-ray of the right hip showing reduced joint space from degeneration.
Mr Odisho was referred to specialist Dr Walter in December 2020 with regard to his right knee pain and states he was recommended no treatment. Following his accident, he reports he has never had any surgery or injections and had no physical treatments. He has used a topical gel on his right knee and no other medications.”
Dr Keller reported that:
“Mr Odisho reports no previous pain or problems affecting his neck, shoulders, or knees. He did state that there were minor symptoms of pain in the neck, shoulders, and knees before the accident for which he never had to see a doctor and never had investigations. He states his joint pains never made him unfit for work.”
In ‘presenting complaint’, Dr Keller noted:
“Mr Odisho reports that due to the accident he remains short of breath. He states he has constant pain between his shoulder blades that he rates at 7/10 in intensity. He reports intermittent lower back pain up to four days per week. This may be present up to two hours and rated up to 8/10 in intensity. He states he gets severe headaches associated with vertigo and blurred vision. He states he had never had problems with vertigo prior to the accident.”
Dr Keller summarised his reasoning on causation:
“Mr Odisho reports being involved in a motor vehicle accident at the low to moderate force level in July 2020. He did not attend a doctor immediately and appears to be reporting neck and back pain some one or two months afterwards. It is not clear to me that he suffered any physical injuries as a result of the reported accident.”
Dr Keller provided his diagnosis:
“I am unable to find evidence for any physical injuries caused by the subject accident.”

The Panel’s examination

Mr Odisho was examined by Medical Assessor Assem at the medical suites of the Commission on 19 March 2024. He was unaccompanied with an Arabic speaking interpreter, Mr Hafez Assoum, NAATI #CPN5KR53J, who was in attendance for the entire interview and examination.

Pre-accident history

Mr Odisho, a 64-year-old male, born in Baghdad, Iraq where he worked as a plumber followed by military service in the Iraqi Army from 1979 to 1991. He immigrated to Australia in around 1999 and worked as a waiter, plumber, and carpenter. He later worked as a house painter and started his own business, Bright White, in 2008. The COVID-19 pandemic significantly impacted his business, ceasing his work activities since April 2020. He was residing with his wife and their four children.
Mr Odisho had a history of high cholesterol, hypertension, diabetes mellitus and asthma. He was previously diagnosed with depression and anxiety in 2011. He denied any previous musculoskeletal accidents, injuries or complaints. However, upon mentioning a past knee injury, he then remembered undergoing arthroscopic surgery on his left knee in 2004.
When prompted about other past injuries and complaints, he dismissed them, stating that he couldn't even recall what he had for breakfast. Throughout the interview, his responses remained vague, and he had considerable trouble recalling specific events. Based on his medical history, he presented with the following conditions:
(a)   2001-2005: Mr Odisho was deemed unfit for work due to osteoarthritis in both knees and received Centrelink medical benefits. He experienced left knee pain, for which he visited his doctor on 29 November 2001 and 17 January 2002. He was off work from 2001 to 2003.
(b)   2004: underwent left knee arthroscopic surgery by Prof Warwick Bruce on 15 December.
(c)   2005: continued to visit the doctor for left knee pain.
(d)   2007: on 2 February, he saw his doctor for right hip pain. Underwent CT scan of the lumbar spine on 12 December, revealing generalized lower lumbar disc disease noted, with possible compromise to the emerging right L3 and left L4 nerve roots. Was deemed unfit for work and received Centrelink medical benefits due to lower back pain.
(e)   2008: received Centrelink medical benefits for a fractured right ankle.
(f)    2010: underwent inguinal hernia repair (side not stated) and another left knee arthroscopy.
(g)   2011: on 14 January, seen for lower back pain and sacroiliitis. On 25 September, visited Liverpool Hospital emergency department for an motor vehicle accident, reporting neck and right knee pain. On 27 September, saw his doctor for neck and back pain resulting from the motor vehicle accident. His vehicle rolled over several times, before landing in a creek on the driver side. He was taken to Liverpool Hospital. CT Cervical Spine on 30 September 2011 revealed mild disc bulging at several cervical levels, with mild bony osteophyte foraminal narrowing at C3/4, C4/5, possibly irritating the left C5 nerve root but no major central canal stenosis or cervical cord impingement. He continued to experience ongoing cervical spine pain, stiffness and discomfort, up until the subject accident in July 2020. Mr Odisho also suffered with intermittent lower back pain, up until around 2015. He could not recall any significant symptoms of lower back pain after 2015 other than occasional aches and pains.
(h)   On 17 January 2011, a bone scan showed Moderate increase in osteoblastic reaction localized to the superior aspect of the left femoral head observed. Lumbar spine and both sacroiliac joints appear normal. Mild arthritis detected in both shoulders, patellofemoral compartments of both knees, and 1st metatarsophalangeal (MTP) joints bilaterally.
(i)    On 12 December 2011, he consulted his doctor for a meniscal injury and was referred to physiotherapy. In October, he was deemed unfit for work due to a cervical disc injury with radiculopathy and a lumbar disc injury.
(j)    2012: on 8 February, consulted his doctor for cervical discopathy following an motor vehicle accident. On 4 July, reported pain all over the body and joints from osteoarthritis. On 17 July, seen for severe depression, and a GP mental health care plan was provided.
(k)   2013: visited his doctor in February and October for pain all over his body.
(l)    2014: on 2 April, reported right knee pain and was reviewed on 20 August.
(m)     2015-2016: suffered from pain all over his body; received analgesia and a physiotherapy referral for neck and back pain. Between at least October 2015 and July 2016, he was on Centrelink medical benefits and deemed unfit for work due to arthritis in his spine and joints, with secondary anxiety and depression.
(n)   2016: consulted his doctor for vertigo. Referred to specialist Dr Hanna in December, who ordered an MRI showing multilevel disc degeneration with foraminal narrowing.
(o)   2019: on 22 August, reported consuming 28 units of alcohol per week and was advised to reduce intake.
(p)   2020 (Pre-motor vehicle accident): on 11 June, saw his doctor for anxiety and depression, noted to be suffering severe stress. On 12 June, reported neck pain radiating to the fingers with no neurological abnormality detected.

History of motor vehicle accident

On July 20, 2020, at approximately 7.00am, Mr Odisho was involved in a motor vehicle accident on Cumberland Highway, near the intersection with Old Windsor Road. He was the driver of a Holden Commodore station wagon, properly restrained by his seatbelt, and was stationary at a traffic light when his vehicle was struck from behind by a Mitsubishi Outlander 4WD.
The impact propelled Mr Odisho's vehicle forward, although it did not collide with any other vehicle. Mr Odisho did not lose consciousness, and the airbags in his vehicle did not deploy. He experienced immediate pain in his neck and back, but no knee pain was noted initially. However, upon further questioning, he recalled that his right knee had hit the dashboard underneath the steering wheel during the impact.
Mr Odisho managed to exit his vehicle, exchange information with the other driver, and observed that the police arrived at the scene. An ambulance was not summoned. There are conflicting accounts regarding whether Mr Odisho drove himself from the scene or if his vehicle was inoperable and he took a taxi home. According to his statement, he opted for a taxi. Later, he returned to the accident site, and a relative drove his vehicle to his home address.
He reported that on the same day of the incident, he sought consultation with Dr Guirgis, though it is unclear whether it was for a routine check-up or due to pain. When prompted, he confirms it was because of pain. I pointed out that other medical examiners have noted that his initial medical consultation was either one week or one-month after the accident. He states that he could not recall. He was prescribed Voltaren and referred for physiotherapy treatment.
He stated that he sought consultation with Dr Guirgis on the day of the incident. However, it was not immediately clear whether this visit was for a routine check-up or due to the onset of pain. Upon further questioning, he confirmed that the consultation was prompted by pain. I observed that previous medical reports indicated his initial medical consultation occurred either one week or one-month after the accident, to which he responded that he could not remember the exact timeline. Following his consultation, he was prescribed Voltaren and referred for physiotherapy treatment. He consulted Dr Walker, orthopaedic surgeon, on three separate occasions, yet received no treatment during those visits.

Review of documentation

X-rays of the cervical, thoracic, and lumbar spine on 20 July 2020 revealed mild degenerative changes. X-ray both knees on 9 November 2020 revealed mild osteoarthritis bilaterally. MRI right knee on 7 December 2020 showed extensive bone marrow oedema in the medial femoral condyle, a large osteochondral lesion, extensive tears of both the medial and lateral menisci, and mild osteoarthritis in the tibiofemoral and patellofemoral joints. A repeat MRI of the right knee on 10 March 2021 noted medial and lateral meniscal tears with moderate medial meniscus extrusion into the meniscotibial gutter. Interval contraction of the previously observed femoral condyle subarticular marrow oedema was seen, with no overlying cartilage defect or evidence of an unstable osteochondral fragment.

Current symptoms

Mr Odisho complained of intermittent neck discomfort accompanied by an electric shock-like sensation in the occipital region with cervical rotation. His symptoms fluctuated in intensity, rating the pain as 7-8/10 on the pain scale. This pain radiated from his right shoulder down his arm, sometimes associated with numbness that affects all his fingers.
He also reported a numbing sensation in his right shoulder, which was accompanied by a cracking sound when he elevated his shoulder.
He experienced intermittent lower back discomfort that sometimes dissipated by standing from a seated position. There was an associated complete loss of sensation in the first, second and third toes of his right foot. He noted that after walking to the appointment from Kings Cross Station, he experienced moderately severe lower back discomfort, which he also rated as 7-8/10 radiating down the lateral aspect of his right lower leg.
He lived in Fairfield West with his wife and four children. He occasionally assisted his wife with household chores. He was currently taking Voltaren for pain.

Examination

During the assessment, Mr Odisho appeared to be in discomfort, frequently changing his position in the chair and standing up intermittently. He ambulated with a slight limp. He was cooperative. He was informed at the time of the examination, not to engage in any manoeuvre beyond what he could tolerate, or which may cause harm or injury.

Cervical spine (cervicothoracic)

There was no tenderness on palpation. There was no muscle guarding or spasm. Cervical movements were symmetrically reduced to ¾ normal range in flexion, extension, lateral flexion and rotation. There was no asymmetry of movement or spinal dysmetria. Neurological examination was normal with normal power, tone, sensation and reflexes. There was no significant measurable difference in the circumference of his upper arms or forearms.

Lumbar spine (lumbosacral)

There was tenderness in the lumbar spine on palpation but no muscle guarding or spasm. Lumbar movements were reduced in flexion to the level of his knees. Extension was 2/3 normal range. Lateral flexion and rotation were symmetrically reduced to 3/4 of normal range. There was no asymmetry of movement or spinal dysmetria.
He did not have difficulty climbing on or off the examination couch. Active straight leg raising was 60 degrees bilaterally. Neural tension signs were negative. His knee and ankle jerk reflexes were normal. There was a slight diminution of sensation at the lateral aspect of his right lower leg. Over his right big toe, there was complete loss of sensation and complete loss of power on repeated testing. He had difficulty standing on his toes or heels. There was no measurable difference in the circumference of his calves.

Upper extremity

There was slight tenderness on palpating his right shoulder. Active range of motion was consistent on repeated testing as follows:

Shoulder Movements

Active ROM Measured

RIGHT

Active ROM Measured

LEFT

Flexion

150°

180°

Extension

40°

50°

Adduction

20°

50°

Abduction

150°

180°

Internal Rotation

80°

90°

External Rotation

50°

90°

Lower extremity

There was no swelling or deformity. He had mild symmetrical patellofemoral crepitations. The patellofemoral grind was negative. There was no ligamentous instability. McMurray’s test was negative. Knee range of motion was normal was follows:

Knee Movements

Active ROM Measured

RIGHT

Active ROM Measured

LEFT

Flexion

130°

130°

Extension

0°

0°

Consistency of presentation:

Mr Odisho was a vague historian who had difficulty recollecting events.

Causation:

Evaluation of pre-existing conditions

Mr. Odisho's extensive pre-accident medical history, including chronic conditions and previous injuries, played a crucial role in differentiating between pre-existing impairments and those directly caused by the accident. The Panel required a complete medical record prior to the accident, including detailed documentation of his osteoarthritis, previous musculoskeletal injuries, surgeries, and treatments.

Causation and timing of medical consultation

The delay in seeking medical attention post-motor vehicle accident raised questions regarding the causation of reported symptoms and their correlation with the accident. The Panel directed the claimant to produce a timeline of medical consultations following the accident, an explanation for any delays in seeking treatment and further clarification on whether initial symptoms were immediately related to the accident or appeared progressively.

Correlation of clinical findings and radiological evidence

To accurately diagnose Mr Odisho's current condition, it was important to correlate clinical examination findings with radiological evidence, especially concerning the identification of radiculopathy.
The Panel noted that diabetes could cause neuropathy, potentially confounding the assessment of nerve damage attributed to the accident.
The Panel required all imaging studies of the lumbar spine including MRIs or CT scans not mentioned in the report.

Cervical spine

Mr Odisho has a history of neck pain predating the accident. On 12 June 2020, eight days before the accident, he presented to Dr Guirguis with neck pain radiating to the supraclavicular and intra-scapular areas, extending to the outer aspect of the arm, hand, and fingers. The pain was exacerbated by elevating his arm above shoulder height. Similar symptoms were documented following the accident.
The photographs of the damaged vehicle indicated moderate damage. The Panel accepted as probable that Mr Odisho sustained a whiplash injury to the cervical spine. A plain X-ray of the cervical spine showed mild reversal of cervical lordosis and mild to moderate degenerative changes with foraminal stenosis.
Based on the clinical and contemporaneous medical evidence, the Panel concluded that Mr Odisho had sustained a soft tissue injury to the cervical spine, aggravating pre-existing symptomatic pathology.

Lumbar spine

A CT scan of the lumbar spine on 2 February 2007 revealed generalized lower lumbar disc disease with possible compromise of the emerging right L3 and left L4 nerve roots. On 14 January 2011, he was seen for lower back pain and sacroiliitis.
On 27 September 2011, he reported an injury to his neck and back after his vehicle rolled over multiple times, landing in a creek on the driver's side. He continued to experience intermittent lower back pain until around 2015. Despite having pre-existing advanced degenerative pathology in the lumbar spine with potential nerve root impingement, there was no contemporaneous evidence of pre-existing symptomatic impairment immediately before the accident. His lower back complaints were documented on the day of the accident and persisted subsequently. The Panel concluded that he had sustained a soft tissue injury to the lumbar spine, aggravating pre-existing degenerative pathology.

Shoulders

There was no contemporaneous evidence of a soft tissue injury to the shoulders immediately following the accident. Although Mr Odisho’s neck symptoms were documented to worsen with arm elevation above shoulder height, similar symptoms were present before the accident.
His shoulder complaints were not documented in the clinical records of Dr Guirguis or in the Certificate of Capacity/Certificate of Fitness completed by Dr Guirguis. The Panel concluded that the listed injuries to his shoulders were not causally related to the accident. On clinical examination, he reported localized tenderness and pain over his right shoulder, limiting shoulder movement. There was no secondary restriction in shoulder motion due to pain from the cervical spine.[1]
[1] Nguyen v The Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd [2011] NSWSC 351 judgment date: 3 May 2011.

Right knee

There was no contemporaneous evidence of an injury to Mr Odisho’s right knee. It was not documented in the clinical records of Dr Guirguis or in the Certificate of Capacity/Certificate of Fitness completed by Dr Guirguis. The Panel concluded that the listed injury to his right knee was not causally related to the accident. There was no assessable WPI when compared to his uninjured left knee.

Assessment of WPI

Cervical spine:

He has a restriction in cervical movements without any muscle guarding, spasm or spinal dysmetria. There were no radicular complaints corresponding to a specific dermatomal pattern or focal neurological deficits. His condition is consistent with a DRE Cervicothoracic Category I or 0% WPI (AMA 4 Guides, 3/104).

Lumbar spine

He has a restriction in lumbar movements without any muscle guarding, spasm or spinal dysmetria. There was sensory loss in the right L5 dermatomal distribution and weakness in extension of his big toe which is primarily innervated by the L5 nerve root. Given these findings, Mr Odisho's condition satisfies two of the five criteria listed for radiculopathy (Motor Accidents Authority Permanent Impairment Guidelines 2007 (MAA Guidelines), paragraph 6.138, p 108). His condition is consistent with a DRE Lumbosacral Category III or 10% WPI (AMA 4 Guides, Table 72, p 110). There were no deductions applicable (MAA Guidelines, paragraph 6.31, p 88-89).

Panel’s conclusion

The Panel concluded that the following injuries were not caused by the accident:
(a) both shoulders – soft tissue injuries, and
(b) right knee – medial and lateral meniscal tears and subchondral medial femoral condyle fracture.
The Panel concluded that the following injuries were caused by the accident:
(a) cervical spine – soft tissue injury, and
(b) lumbar spine – DRE lumbosacral Category III;
and gave rise to a permanent impairment of 10%.

Determination

The Panel revokes the certificate of Medical Assessor Woo dated 18 September 2023 and certifies that the injuries referred to the Panel and caused by the motor accident gave rise to a WPI of 10%.

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	150°	180°
Extension	40°	50°
Adduction	20°	50°
Abduction	150°	180°
Internal Rotation	80°	90°
External Rotation	50°	90°

[2024] NSWPICMP 449

8 July 2024