Pavlovic v AAI Limited t/as AAMI

DETERMINATION OF REVIEW PANEL
CITATION:	Pavlovic v AAI Limited t/as AAMI [2023] NSWPICMP 552
CLAIMANT:	Mrdan Pavlovic
INSURER:	AAI Limited t/as AAMI
REVIEW PANEL
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Margaret Gibson
MEDICAL ASSESSOR:	Chis Oates
DATE OF DECISION:	2 November 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; medical assessment by Medical Assessor (MA) Cameron of whole person impairment and claimant’s review under section 63; claimant injured on 20 November 2017 in rear end collision; claimant alleges injuries to his neck, back, jaw, chest, both shoulders and both legs; MA found only impairment to the neck 5% due to presence of guarding and non-verifiable radicular symptoms; Held – claimant’s evidence unreliable due to inconsistent histories; claimant did not injure his head and jaw; claimant injured his chest, soft tissue and no impairment; claimant injured his neck, thoracic and lumbar spine; neck, no guarding and non-verifiable radicular symptoms too variable to be reliable; DRE I 0%; thoracic, no guarding and no non-verifiable radicular symptoms, DRE I 0%; lumbar spine non-verifiable radicular symptoms also too variable to be reliable but due to the presence of guarding, DRE II 5%; no direct injury to either shoulder and shoulder range of motion too variable to be reliable indicator of impairment and 0% impairment found; no injury to either leg and no assessable impairment; while outcome of assessment the same, due to different findings of injury and impairment, certificate of MA revoked; no issue of principle. .
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Part 3.4 of the Motor Accidents Compensation Act 1999 The Review Panel: 1. Revokes the certificate issued by Medical Assessor Cameron dated 27 February 2022. 2. Certifies that the Mrdan Pavlovic’s degree of permanent impairment that has resulted from the injuries caused by the motor accident on 20 November 2017 is not greater than 10%.

STATEMENT OF REASONS

INTRODUCTION

Mrdan Pavlovic was involved in a motor accident on 20 November 2017. He was the driver of a motor car, stationary at traffic lights when he was hit in the rear by another car.
Mr Pavlovic says he injured his neck, back, jaw, chest, both shoulders and both legs. He made a claim for damages against AAMI, the third-party insurer of the vehicle that hit his car.
A medical dispute about the degree of the claimant’s whole person impairment (WPI) arose in connection with that claim and Mr Pavlovic referred that dispute to the Personal Injury Commission (the Commission) for assessment.
On 27 February 2023 Medical Assessor Cameron determined that Mr Pavlovic did not have a WPI of greater than 10%. The claimant lodged an application with the Commission seeking a review of the Medical Assessor’s decision.
On 28 April 2023, a delegate of the President of the Commission determined there was reasonable cause to suspect a material error in Medical Assessor Cameron’s assessment and allowed the Review. On 3 May 2023 the President’s delegate convened this Panel to conduct the Review.

LEGISLATIVE FRAMEWORK

Because of the date of his accident, Mr Pavlovic’s claim for damages and entitlement to compensation are governed by the provisions of the Motor Accidents Compensation Act 1999 (the MAC Act).
Under the MAC Act, damages can be awarded for economic as well as non-economic losses resulting from the injuries, disabilities and impairments caused by the motor accident.
Damages for non-economic loss are provided for in Part 5.3 of the MAC Act with some limitations and restrictions. For example, non-economic loss damages are limited to a maximum amount in accordance with s 134[1] and entitlement to those damages is restricted by s 131 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
[1] The current maximum as of October 2023 is $620,000.

Permanent impairment assessment

Whole person permanent impairment is to be assessed in accordance with the Motor Accident Permanent Impairment Guidelines (the Guidelines)[2] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[2] Section 133. The current version of the Guidelines is Version 1 which is effective from 30 November 2017.
Due to the nature of the injuries sustained by the claimant, the following chapters of the AMA 4 Guides are relevant:
(a) chapter 3, the musculoskeletal system, and
(b) chapter 9, the ear nose, throat and related structures.

Dispute Resolution

If there is a dispute about the degree of the claimant’s WPI, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination.[3]
[3] See s 132 and s 44(1)(c) of the MAC Act.
Part 3.4 of the MAC Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Cameron’s, further medical assessments and the review of medical assessments by this Panel.[4]
[4] Sections 61, 62 and 63 of the MAC Act.
Applications for review are made to the President of the Commission on grounds that the assessment “was incorrect in a material respect” (s63(2)). If the President, or his delegate is satisfied “there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect” then the President arranges to the application to be referred to a review panel consisting of a Member of the Commission and two Medical Assessors (ss 63(2B) and (3).
The review is not necessarily confined to the issues raised in the application but is “a new assessment of all the matters with which the medical assessment is concerned” (s63(3A)) that is an assessment de novo.
Rule 128 of the Personal Injury Commission Rules (the Rules) 2021 permits the Panel to determine its own proceedings and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it sees fit.

ASSESSMENT UNDER REVIEW

Medical Assessor Cameron examined the claimant on 10 February 2023 and issued his certificate on 27 February 2023. He says at [2] that he was asked to assess the following nine injuries:
(a)    cervical spine – soft tissue injury;
(b)    thoracic spine - soft tissue injury;
(c)    lumbar spine - soft tissue injury;
(d)    jaw - soft tissue injury;
(e)    chest - soft tissue injury;
(f)    right shoulder - soft tissue injury;
(g)    left leg - soft tissue injury;
(h)    left shoulder - soft tissue injury, and
(i)    right leg - soft tissue injury.
Medical Assessor Cameron records the following history at [8], [9] and [10];
(a)    the claimant lives with his wife;
(b)    at the time of the accident, he was the foreman of a building services company, a position which he had held for 10 years;
(c)    he had a previous car accident in 2001 which he says he had recovered from by 2004 or 2005;
(d)    after the accident he drove to the police station to report the accident and due to his symptoms, an ambulance was called and he was taken to St Vincent’s Hospital, and
(e)    he saw his general practitioner (GP), Dr Tomka had some physiotherapy and has seen Dr Kuljic, psychiatrist. He has been unable to return to work.
Mr Pavlovic complained to Medical Assessor Cameron of:
(a)    being nervous and unsettled;
(b)    having neck, left shoulder and left arm pain and the arm pain “is radicular in nature”;
(c)    a stiff left side of his chest;
(d)    Mr Pavlovich felt that his left shoulder was higher and larger than the right;
(e)    he sweats excessively and needs to drink water regularly;
(f)    his head feels heavy sometimes and he wears a neck brace;
(g)    he has difficulty getting out of bed;
(h)    he gets some pain radiating to his right arm and left leg (but not the right leg);
(i)    he gets jaw pain;
(j)    he is unsettled with driving, and
(k)    he has lost weight.
On examination of the claimant’s neck, there was marked but symmetrical loss of range of motion, no spasm or guarding and Medical Assessor Cameron records there were “no non-verifiable radicular complaints present”. The Panel notes the complaints recorded in paragraphs 18(b) and (h) above.
The claimant’s shoulder movements were restricted but there were no neurological deficits in the upper limbs. Medical Assessor Cameron found there was inconsistency in shoulder movement which the claimant said was due to variable pain.
In the thoracic spine there was moderate but symmetrical loss of motion with no spasm, guarding or non-verifiable radicular complaints.
In the lumbar spine there was marked but symmetrical loss of motion with no muscle spasm, guarding or non-verifiable radicular symptoms. The Panel notes Medical Assessor Cameron recorded complaints of some radiating pain to the left leg. Medical Assessor Cameron does not explain why he did not accept these as non-verifiable radicular symptoms. There were however no neurological signs or deficits in the lower limbs and therefore no radiculopathy.
Medical Assessor Cameron diagnosed soft tissue injuries to the cervical, thoracic and lumbar spine as well as the jaw and chest. He did not find any frank or specific injury to the shoulders or legs.
Medical Assessor Cameron found a 5% WPI (DRE category II) for the claimant’s neck injury because non-verifiable radicular complaints being present.
He found no other impairments and in particular a 0% (DRE category I) for the lumbar spine.

ISSUES FOR DETERMINATION

Claimant’s submissions

The claimant notes that Medical Assessor Cameron had a history of upper limb symptoms “that has a radicular quality” and that he reports the claimant had “some pain radiating to his right arm and also to his left leg”. The claimant says this suggests radicular symptoms in both areas which would attract a WPI of 5% each.
The claimant says that Medical Assessor Cameron does not appear to have considered the radiological studies which were annexed to the application. The Medical Assessor had said, “there were no imaging studies to review.” The Panel notes the distinction between reports of imaging studies (e.g. a report of an MRI scan) as opposed to the actual imaging study which was the subject of the report (e.g. the MRI).
The claimant says his neck should have been assessed as DRE category III (15%) due to the neurological compromise shown on the MRI caused by the disc bulge.
The claimant takes issue with the assessment of the claimant’s jaw injury noting the Medical Assessor cites 9.3b of AMA 4 which relates to mastication and deglutition. The claimant says there was no inquiry made of deformity of the face, range of motion, speech, mastication or deglutition and therefore no proper assessment of the jaw injury.

Insurer’s submissions

The insurer says that Medical Assessor Cameron referred to the MRI report and was aware that two examiners had found radiculopathy. The insurer says the Medical Assessor was entitled to carry out his own clinical examination and make his own assessment.
The insurer noted the claimant’s complaint about the assessment of the thoracic and lumbar spine but says the claimant does not explain why those two areas should be assessed as other than 0%.
In terms of the jaw, the insurer says the Medical Assessor at page 3 refers to pain on movement of the jaw and no restriction of movement. It was therefore open for the Medical Assessor to find 0%.

Procedural matters

On 15 May 2023, the Panel issued directions requiring an indexed and paginated bundle of documents to be uploaded:
(a) by the claimant on or before 9 June 2023, and
(b) by the insurer on or before 23 June 2023.
Neither party complied with that timetable.
The Panel received the claimant’s bundle on 25 July 2023, six weeks’ late and on the morning of the first preliminary teleconference. The insurer’s bundle was relayed to the Panel on 27 July 2023, five weeks late and two days after the first preliminary conference.
The Panel met on 25 July 2023 and issued a report to the parties. The parties were advised of the medical examination and the claimant was directed to take the imaging studies (not simply the reports from the imaging studies) to that examination.
The claimant was asked to advise:
(a) whether the claimant agreed that any of his injuries attracted a 0% WPI and therefore did not need to be assessed, and
(b) whether he alleges a frank or specific injury to the right and left legs and right and left shoulders or whether he alleges he has sustained an impairment to the function of those areas of the body caused by injury to other areas such as the neck or back.
The Panel received no response from the claimant.
The Panel notes s 42 of the Personal Injury Commission Act 2020 says:
“The guiding principle for this Act and the Commission rules, in their application to proceedings in the Commission, is to facilitate the just, quick and cost effective resolution of the real issues in the proceedings.”
The Panel further notes that s 42(3) provides that Mr Pavlovic, as a party to the proceedings, and Mr Zreika, as his lawyer are “under a duty to co-operate with the Commission to give effect to the guiding principle.”
The claimant’s failure to respond to the Panel’s request contained in the report of

25 July 2023 has not assisted the Panel. The Panel will therefore address all of the nine injuries originally referred for assessment.

REVIEW OF THE EVIDENCE

The claimant’s bundle comprises more than 510 pages. The insurer’s bundle comprises over 340 pages.
Leaving aside Commission documents, submissions and decisions issued by the Commission, there are no recent documents, and it does not appear any additional medical evidence has been assembled since Medical Assessor Cameron’s assessment was completed.

Claim form and claim documents

Mr Pavlovic’s claim form[5] was signed and dated 8 January 2018. The claimant says he was on Bondi Road, stationary at traffic lights when he was hit from behind. He says he blacked out for a few minutes. The driver and a witness approached and asked if he needed an ambulance which he declined. He said he drove to the police station to report the accident and the police called an ambulance for him.
[5] Page 3 of the claimant’s bundle.
Mr Pavlovic says he sustained the following injuries:
(a)    neck – whiplash;
(b)    back – whole;
(c)    concussion, chest;
(d)    dizziness, jaw;
(e)    blood in liver;
(f)    shoulders – both;
(g)    leg – right, and
(h)    psychological sequelae – anxiety, shock, trauma.
The claimant said he was having treatment from his GP and physiotherapist.
The claimant disclosed his 2001 accident and said he injured his neck and back in that accident but that he had no other relevant medical history, health issues or injury that would affect his recovery.
The pain diagram completed by the claimant in the claim form is on the left.
Dr Tomka, who had been the claimant’s GP since 2010 completed a medical certificate on 28 November 2017[6] and the pain chart he completed is the one on the right above.
[6] Page 11 of the claimant’s bundle.
Dr Tomka diagnosed an injury to the neck, both shoulders, the chest, upper and lower back, “micro haematuria” and stress.
The police report[7] of the accident is based on statements from both the claimant and the driver of the vehicle behind. The claimant was stopped at the lights. The driver of the other vehicle had just flown in from overseas and was reportedly tired. She admits she ran into the back of the claimant’s car.
[7] Page 476 of the claimant’s bundle.
After the collision, the claimant’s car had not moved, and a passing truck driver stopped and opened the claimant’s door and the claimant appeared dazed and confused. As they were holding up traffic, the truck driver who had come to assist signalled the insured driver to move on and she left the scene. A witness had her details and these were passed on to the claimant.
The claimant attended the police station, Police called an ambulance and continued their enquiries. The insured driver co-operated and attended the police station at a later date to give her version of events.
The police report states that the insured vehicle was travelling at 50 kmph prior to impact. The lengthy police report says that the claimant attended the station on 3 December 2017 and he, “provided police with a medical report from the hospital. [He] did not sustain any injuries as a result of the collision and did not receive any treatment as a result of the collision”.

Previous accident

The insurer has obtained what appears to be the file or a part of the file from Allianz, the insurer of the at-fault vehicle in the 2001 accident. There are a number of treating and medico-legal reports in that file which indicate that the accident occurred on 26 August 2001 and that the claimant was still complaining of physical and psychological injuries resulting from those injuries almost three years later.
Medical Assessor Reid provided an assessment for the Medical Assessment Service (MAS) on 17 June 2004.[8] He was asked to assess, chronic neck and back pain, chronic left and right leg, right hip and right arm injuries. The claimant said his right knee was the worst of his pains.
[8] Page 108 of the insurer’s bundle.
Medical Assessor Reid has a history of the 2001 accident and the rear end collision with the claimant being forced into the intersection and hitting the kerb and his car being written off. He noted the claimant’s GP was Dr Strinich. There is reference to medico-legal reports from Dr Crane, Dr Stenning, Dr Stephenson and Dr Giblin. He found 0% WPI. The Panel does not have some of these.
There is also a decision of Medical Assessor McLure dated 2 June 2004.[9] He has a history of a rear-end collision at traffic lights and the claimant complaining of right shoulder and neck pain. The history includes a referral to Dr Giblin, orthopaedic surgeon and Dr Sokolovic, psychiatrist. Mr Pavlovic is said to have developed lower back and right knee pain.
[9] Page 94 of the insurer’s bundle. It is missing the first two pages.”
Dr McClure has a history of Dr Sokolovic seeing the claimant once a month since 2002 in his own home. The claimant was diagnosed with an adjustment disorder and his WPI was assessed at 5%.
A report from the claimant’s GP to the insurer[10] says the claimant had restricted range of shoulder motions and pains and needles in the fingers of both hands suggestive of a nerve root irritation in the neck. Dr Stenning provided a report diagnosing chronic soft tissue damage and a chronic pain state and suggesting the claimant’s WPI for his back was 10%, for his neck 12% and with permanent impairment to the left leg, right leg and right arm as well. Dr Matalani in a report for the claimant’s solicitors dated 12 September 2002[11] expressed the opinion the claimant had a WPI of 5% for his lumbar spine due to the presence of guarding and non-verifiable radicular complaints.
[10] Page 149 of the insurer’s bundle and bears a date stamp of February 2002.
[11] Page 131 of the claimant’s bundle.
There are no treating general practitioner records that pre-date the current, 2017 accident. In the light of the dispute between the parties, the Panel would have been assisted by Medicare records and any available GP notes from 2001 to 2017 however in the light of the Panel’s ultimate findings, and the availability of further assessment process, the Panel does not consider it needs to delay this assessment further to enable those records to be obtained.

Treating medical records and reports

The ambulance report[12] records as follows:
“[On attendance patient] presented to police [staion]. [Patient] claims was staionary at traffic lights when he was sturck from behind and ? [loss of consciousness]. [Patient] was awoken by a truck driver whom asked what had happened. [Patient] claimed was struck from behind but there was no-one or [a] damaged vehicle. [patient] has minor scratches to the rear bumper bar of his vehicle, no airbag deployment. [patient compains of] pain in his chest and was advised to got to police. [On attendance Patient alert and oriented] well perfused able to recall events. [pattient complains of] sternum discomfort and bilateral flank discomfort consistent with seat belt related trauma. [Patient] cannot remember hearing screaching brakes only a sudden slam on the rear with speed limit of 60 kms.”
[12] Page 54 of the claimant’s bundle.

The claimant attended St Vincent’s Hospital at about 3.20pm. The discharge summary says Mr Pavlovic’s car was struck from behind. The discharge summary says:
“The collision speed is not known, and minimal damages was sustained to Mrdan’s car, reportedly.
Mrdan felt a band of chest discomfort at the time of impact, and ache to his flanks later in the day.
He was a restrained driver, and airbags did not deploy.
Nil [past history] or medications.
Examination revealed an unremarkable primary survey, other than mild sternal discomfort.
Radiolographs of chest and pelvis were normal as were blood tests.
Microscopic haematuries was detected.”
The claimant was observed, a tertiary study undertaken, and he was advised to see his doctor in 2 – 3 days.
The notes from St Vincent’s Hospital[13] records no details of the claimant’s current GP and that the “[patient] stated they do not have a GP”. The Panel notes this is contradicted by the evidence in Dr Tomka’s certificate which says he (or his practice) has been the claimant’s GP since 2010.
[13] Page 50 of the claimant’s bundle.
The presenting problem was “contusions trunk, chest wall pain”.
The medical records from Bathurst Street Medical Practice[14] record the claimant attending on Dr Tomka on 28 November 2017 complaining of pain in the neck, both shoulders, the upper and lower back and his chest. On examination there was restricted range of motion in the neck and both shoulders with spasm of the paraspinal muscles of the entire back. The claimant was tender in the breastbone. Mr Pavlovic was prescribed Mersyndol (pain killing) medication.
[14] Page 26 of the claimant’s bundle.
Dr Tomka referred the claimant for physiotherapy to his neck, both shoulders, chest, upper and lower back on 28 November 2017. In addition, the claimant was referred to

Dr Protulipac, psychologist for “depressed mood after MVA”. [15]
[15] The referrals are at pages 16 and 17 of the claimant’s bundle.
On 29 November 2017, the claimant attended Dr Tomka with headaches and continued pain and confusion. Radiology was requested (CT of brain for consideration of intracranial bleeding).
On 5 December 2017 the claimant attended with “anxiety” and “panic attacks with hyperventilation”. He was advised the CT scan was normal and an MRI of the cervical and lumbar sacral spine was ordered.
On 8 December 2017 the claimant attended for a review of the scans and a further MRI of the lumbar sacral and thoracic spine was ordered.
The claimant attended on 11, 13 and 18 December 2017 with further complaints of back and whole of spine pain. On 13 December 2017 the claimant was referred to Dr Coughlan.
On 9 January 2018 the claimant attended complaining of pain in the neck, both shoulders, upper and lower back and Tramal was added to his medications. Dr Tomka provided a certificate of capacity certifying the claimant unfit for work. The injuries were listed as neck, upper and lower back, both shoulders and post-traumatic stress disorder.
Further attendances in January and February 2018 noted neck, back and shoulder pain along with insomnia which was said to be anxiety related.
On 17 January 2018, Dr Tomka provided a report to the insurer.[16] Dr Tomka says he has been the claimant’s doctor since 28 November 2017 only (not before the accident) which again appears to contradict the evidence in the medical certificate. He records the consultations that have taken place and notes complaints of pain and restricted movement in the neck, both shoulders, upper and lower back and chest. He says, “as far as I am aware there are no pre-existing conditions that would impact on [the claimant’s] injuries.”
[16] Page 31 of the claimant’s bundle.
At this point in time, the Panel notes that Dr Tomka’s notes record complaints of pain but no radiating pain into the upper or lower limbs (other than the complaints of shoulder pain). There are also, at this time, no complaints of neurological symptoms recorded in the notes.
On 10 October 2018 the claimant was referred by Dr Tomka to Dr Kuljic, psychiatrist.
Dr Coughlan wrote a letter to Dr Tomka dated 6 December 2018.[17] This is a second letter referring to an “update”. The Panel has not been provided with any other records or reports from Dr Coughlan.
[17] Page 213 of the claimant’s bundle.
Dr Coughlan had viewed the MRI which “confirms a small syrinx” at C5-6 due to a disc “herniation” which was extending to the right neural exit foramen causing right neural and foraminal stenosis. He considered the syrinx was post-traumatic. He recommended a C5/6 anterior cervical discectomy and fusion.

Psychiatrist/psychologist

Dr Protulipac provided a report to Dr Tomka dated 1 February 2017 (a date nine months before the accident) and an identical report dated 13 March 2018.[18] He diagnosed a major depressive disorder with prominent symptoms of anxiety. He notes “Mr Pavlovic’s presentation was rather dramatic, and his wife was also able to relay her concern for his wellbeing.”
[18] Multiple copies have been provided at pages 154, 433, 435 and 438 of the claimant’s bundle. It appears the February 2017 date is in error and is likely to be a report written in February 2018.
Dr Kuljic provided a report to Dr Tomka dated 8 December 2018.[19] He first saw the claimant on 3 December 2018. The claimant denied any previous psychiatric problems and reported feeling sad, having difficulty sleeping due to pain and paraesthesia in his arms, irritability and his marital relationship had been suffering.
[19] Page 214 of the claimant’s bundle.
Dr Kuljic was of the view the claimant had anxiety and depression as a reaction to chronic pain and limited mobility but wished to see various tests and records before seeing him again. It appears there were three further consultations according to the notes but no further reports or letters from Dr Kuljic have been put before the Panel.

Radiology

The claimant had a CT scan of his brain on 5 December 2017 which showed no abnormality. An MRI of the brain undertaken on 16 December 2017 with a history of “head injury” also found no sign of injury.[20]
[20] The reports of the brain scans are found at 210 and 212 of the claimant’s bundles.
An MRI of the claimant’s lower back was done on 6 December 2017[21] at the request of

Dr Tomka due to “?radiculopathy with disc prolapse.” The result was, “no cause … to explain the patient’s symptoms”.
[21] Page 197 of the claimant’s bundle.
An MRI of the claimant’s cervical spine was also done on 6 December 2017.[22] There was a mild broad based disc bulge at C5/6 extending to the right and causing some mild exit foraminal stenosis. The medical members of the Panel note that a “broad based disc bulge” is usually degenerative rather than traumatic in nature.
[22] Page 193 of the claimant’s bundle. It is not clear whether there is a second page of the MRI report, the report end somewhat abruptly on the first page.
An MRI of the thoracic spine was done on 12 December 2017[23] which showed previous (and not traumatic) Scheuermann’s disease but no other significant abnormality in the thoracic spine (but a dilation of the central canal at C6/7 was noted).
[23] Page 194 of the claimant’s bundle.
A “whole of spine” MRI was undertaken on 6 November 2018.[24] Apart from the small (9mm by 3mm) syrinx at C6/7, there were no other abnormalities in the thoracic or lumbar spine. The medical members of the Panel note the report suggests there are mild central disc bulges at all levels of the lumbar spine which is suggestive of degeneration of the discs rather than trauma.
[24] The report is at page 197 of the claimant’s bundle.
The Panel notes there is no radiology before it, relevant to the right or left shoulder.

Medico-legal reports – claimant

Dr Gertler, psychiatrist has provided a report dated 10 September 2018.[25] He diagnoses an adjustment disorder with depressed mood due to Mr Pavlovic’s ongoing pain and disability. He recommended a further six months of psychological treatment and assessed WPI at 19%.
[25] Page 32 of the claimant’s bundle.
Dr Dixon, orthopaedic surgeon provided a report to the claimant’s solicitors dated

19 February 2019.[26] He has a history of the claimant being in a hi-lux utility vehicle when he was rear ended by a Mercedes Benz sedan. He recalls not hitting his head but losing consciousness. He went to the police station to report it and they arranged for an ambulance to take him to hospital.
[26] Page 199 of the claimant’s bundle.
Dr Dixon has a consistent record of the treatment provided and notes the claimant has not worked since the accident. The claimant attended with his wife who did everything in terms of the lawn mowing and car cleaning, heavy cleaning, heavy grocery shopping and heavy cleaning, ironing and bed making. He has difficulty putting on his socks and shoes due to low back pain and difficulty with dressing due to shoulder pain.
Dr Dixon notes “He reported no major illnesses nor any other significant motor vehicle accident in the past.”
Dr Dixon diagnosed a whiplash injury, left C6 radiculopathy, seat belt injury, back strain injury, post-traumatic stress disorder requiring analgesia, Valium and beta blockers and causing impact to his activities of daily living.
He assessed WPI at 24%.
Dr Fearnside provided a report to the claimant’s lawyers dated 2 September 2019.[27] The claimant reported injuries to his neck, lower back and both shoulders “there was no blow to the head, and he did not sustain a head injury”.
[27] Page 228 of the claimant’s bundle.
He has a history of the claimant travelling to Tasmania on a cruise from 20 November to

28 November 2017.
The claimant reported increasing neck pain, muscle spasm developing and bilateral brachial radicular pain radiating to the first, second and third fingers of the right hand. The claimant also reported pain, stiffness and restricted motion in both shoulders due to muscle spasm and tightness. He also experienced low back pain and right sciatic pain down the back of his leg to the ankle. There was shooting pain in the left leg but not below the knee.
The claimant complained of constant neck and shoulder pain and low back pain with pains in his legs.
Dr Fearnside at 3.2 records no history of any previous injury, disorder or condition affecting Mr Pavlovic’s neck, low back or shoulder girdle pre-dating the subject accident and there had been no further accidents or aggravations which might contribute to his present condition.
Dr Fearnside diagnosed a C5/6 disc protrusion with radiculopathy, consequential shoulder injury and musculoskeletal injury with non-verifiable right lower limb radiculopathy.
While expressing concern, Dr Fearnside did support the surgery and as result he declined to assess impairment. He considered that “psychological factors undoubtedly play a factor in his pain perception and likely amplify it”.
In a second report dated 2 December 2019 – the claimant had advised he did not intend to have surgery therefore Dr Fearnside considered his condition was stable. He assessed WPI at 34% including 15% for the neck injury, 5% for the lower back and 8% and 12% for the right and left shoulder.
The Panel notes that none of the claimant’s experts have the history of the 2001 car accident, the three years of complaints of symptoms and the medical assessments, medico-legal reports and treating practitioner’s records that were written or provided in the course of that claim.

Medico-legal reports – third-party insurer

Dr Keller provided a report dated 8 April 2019[28] providing a consistent history of the accident. The claimant reported “low level damage to his vehicle. He states the towbar was bent and he is unsure if it was ever repaired.”
[28] Page 75 of the insurer’s bundle.
Dr Keller said that the claimant reported no previous neck or back complaints and no previous medical, surgical or psychological conditions. When Mr Pavlovic was asked about the 2001 injury, the claimant said he had mild right knee pain and nothing else. The claimant said he had no time off work, he could not recall any investigations and received no compensation payout from the claim.
The claimant complained of neck pain and headaches, spasms in his left shoulder and chest as well as a feeling of his kidneys being compressed. At this point in the examination the Panel notes there was no report of lower back pain or left symptoms.
At the end of the examination portion of the assessment, the claimant then said he also suffered left sided thoracic and lumbar muscle spasms on a daily basis.
Dr Keller said the claimant was inconsistent and diagnosed soft tissue injuries to the chest and spine. Dr Keller says witnesses report minor damage to the car.
Dr Keller refers to surveillance evidence adduced in the 2001 claim suggesting the claimant was doing heavy construction work in 2004 (when he had apparently said he could not) and the doctor was concerned about the voracity of the claimant’s histories and said, “he appears to be similarly withholding evidence from me today and voluntarily exaggerating his physical disabilities on presentation.” Dr Keller was not convinced there was “any objective evidence that he has ongoing injuries attributable” to the accident.
Dr George provided a report to the insurer on 23 April 2019.[29] Due to the claimant’s behaviour, the claimant admitted to Dr George he had taken a Diazepam before the examination. He said:
“At the outset, my initial impression and also, my final impression, was that Mr Pavlovic should be subjected to forensic psychological testing to test the validity of his general presentation and alleged psychopathology.”
[29] Page 84 of the insurer’s bundle.
When asked about previous claims Mr Pavlovic “did not volunteer any information”. He provided a consistent history of the accident and his treatment. In terms of his current symptoms the claimant said he had pain in his shoulders and neck and had headaches. The Panel notes the claimant did not complain of arm pain or lower back and leg pain but said he had “trouble walking.”
Dr George diagnosed no psychiatric disorder on the basis the claimant’s current presentation was not consistent with a “slight rear-end collision”. Dr George has a record from the claimant of significant difficulty walking but then saw him moving quickly down the hall with fluent movements after the consultation.

Medico-legal reports – workers compensation insurer

Dr McGroder, occupational physician provided a report to the workers compensation insurer dated 19 September 2018. He has a history of the claimant not working since the accident despite him being advised on alternative jobs. Dr McGroder says the claimant was fit looking but depressed with a flat affect.
He formed the view there was no objective evidence of a physical injury, but he did suggest there were significant psychological problems.
Dr McGroder spoke with Dr Tomka who is reported to have said, “he cannot find anything particularly wrong from a physical point of view … and his symptoms are psychological.”
Dr McGroder concludes:
“Under normal circumstances what would appear to have been a somewhat minor rear end motor vehicle accident wouldnot have resultedin the presentaiton that Mr Pavlovic displays today.”
Dr Casikar, neurosurgeon has provided a report dated 10 January 2019 to the workers compensation insurer. The claimant gave a consistent history of the accident but said he went to Dr Tomka two days after the accident. The Panel notes this is incorrect. By then the claimant was on the cruise ship. He did not see Dr Tomka until eight days after the accident.
The claimant reported that after the accident “he was generally weak” through the whole of his body. He had spasms and had shaking and sweaty hands. He reported panic attacks and his jaw locked.
Dr Casikar examined the claimant and the claimant complained of hypoesthesia over various parts of his body including his face and forehead in an inconsistent pattern which did not conform to any standard dermatomal pattern. The fine tremor in the hands and sweaty palms were considered to be part of an anxiety condition.
He diagnosed chronic degenerative disease of the cervical spine, whiplash injury and depression.
He did not support the request for surgery noting that acute syrinx is rare, that the acute complaints after the accident were of a chest injury and his present complaints were very inconsistent.
Dr Allan, psychiatrist also provided a report dated 24 September 2017 to the workers compensation insurer. The claimant gave a history of no previous problems and that he was in perfect health before the accident.
The claimant reported seeing his GP two or three times a month, his psychologist weekly and a physiotherapist and exercise physiologist weekly. He had not at that stage seen a psychiatrist and denied having seen a pain therapist.
The claimant said the driver that ran into him left the scene.
The claimant was said to have hyperventilated frequently and appeared anxious and depressed.
Dr Allan tried to contact the claimant’s doctor and treating psychologist but could not manage to speak with them. Dr Allan advised that the claimant should be referred to a psychiatrist for review of his medication and urgent referral to a pain management team.
The Panel notes that none of the workers compensation doctors appear to be aware of the 2001 accident, the nearly three years of treatment after it and it appears they did not have the documentation from the Allianz file that is before the Panel.

Other assessments

The insurer has provided a copy of the assessment of a Review Panel concerning a medical assessment of the claimant’s psychiatric injuries by Medical Assessor Sidorov.[30]
[30] Page 54 of the insurer’s bundle. The Review Panel comprises Principal Member Harris and Medical Assessors Hong and Fukui.
Medical Assessor Sidorov had found on 5 September 2021 there was no psychological injury caused by the accident.
A re-examination was conducted by the medical members of the Panel. The claimant said he had been well and had no depression or anxiety before 2017. The 2001 accident was put to him, and the Panel considered his responses vague and evasive. The Panel found he had a two-and-a-half-year previous history of complaints in the context of previous litigation. The Panel “had reservations in accepting the entirety of the claimant’s account of his current symptomatology”.
The Panel however accepted Mr Pavlovic sustained a psychological injury in the accident (an adjustment disorder and a somatic symptom disorder) and assessed WPI at 8%.

RE-EXAMINATION FINDINGS

Mr Pavlovic attended for assessment with Medical Assessor Oates on 3 August 2023 at the Commission’s medical examination suites.
He was accompanied by his wife, Maja Marjanovic, and an official Serbian interpreter, who was present for the duration of the assessment. Mr Pavlovic had quite a good command of the English language but did require assistance from the interpreter from time to time.
Mr Pavlovich will turn 42 years of age later this year.

History from the claimant

Pre-accident medical history and relevant personal details

Mr Pavlovic said he has been married since 2010 and his wife works hard in three part-time jobs to support the family. There are no children.
At the time of the accident, they lived in a two-storey house, however because of his difficulty with moving about, they moved next door at the end of 2019 to a one level house where there are no stairs. He has a swimming pool in the yard in which to do exercises. His wife does the housework. His wife does the yard work.
Before the accident, he would go hiking and snow skiing, and he worked hard climbing scaffolding in his job as a contractor building site supervisor. He had worked in this capacity for six or seven years before the accident for various companies.
He does not smoke or drink alcohol.
He came to Australia from Serbia in 1998. He finished school in Australia to Year 10 and then started a TAFE course in a trade and did about two trimesters then joined his father who worked in the construction industry as an interpreter in English.

When asked, the claimant did not volunteer details of his earlier accident. When further questioned Mr Pavlovic said he was involved in a motor vehicle accident where he was a passenger and hurt his right knee and some other part of the body which he could not recall. Medical Assessor Oates took him to the claim form which identified the neck and back, and he was vague but did not disagree with that. He said however he recovered from this accident.
Mr Pavlovic stated that he could not remember who his GP was at the time of the 2001 motor vehicle accident and when Medical Assessor Oates suggested it may have been Dr Strinich, he said this name did not mean anything to him.
The claimant was asked why he was assessed by a Motor Accident Authority Assessor in 2004. He was vague and did not recall this but then said that he received no payout for the claim he made after the 2001 accident.
He did not recall having any other previous accidents or injuries.
His general health has been good, and he has had no operations and is usually on no regular medications.

History of the motor accident

Mr Pavlovic states he is right-handed.
He said on 20 November 2017, he was the driver of a company car, a Toyota Hilux utility, with no passengers. He was stationary on Bondi Road at traffic lights and was first in line at the lights, when he was hit from behind by a Mercedes coupe he says was travelling at about 60kmph. He did not hear any screech of brakes, or see the approach of the car, and the coupe nosed up under the rear of the tow bar. His utility was pushed forward about two metres. No airbags deployed. His mobile phone, which was sitting in a cradle attached to the dashboard, came loose from the cradle and heavy tools in the back of the utility were dislodged by the impact.
Upon questioning about his alleged head injury, Mr Pavlovic said he was not knocked out. He stayed in the vehicle after the accident and another motorist came up to him and asked him why he was not moving. At the time, he felt OK, and he drove on to Bondi Beach police station. The Mercedes driver had driven off from the accident scene.
When questioned further, Mr Pavlovic expanded on this history by saying that the impact to the rear of his utility broke the chassis of the utility and he believes the company car was later repaired.
Immediately after the accident he felt chest pain. He did not recall having any impact injury to his head or any other part of his body and he was not bleeding. At the police station, he felt dizzy and so an ambulance was called, and he was taken to St Vincent’s Hospital. He was not able to finish the police report and it was completed about two weeks later at the same police station after the claimant returned from his holiday.
The ambulance notes refer to complaints of sternal and bilateral flank discomfort and seatbelt trauma. St Vincent’s did X-rays and there was no fracture, and Mr Pavlovic was diagnosed with a contusion of the chest wall. He was also noted to have microscopic haematuria (blood in the urine which the Panel notes is suggestive of a seat belt injury across the abdomen). He was discharged after about six hours and told to return to the emergency department for an ultrasound scan of the urinary tract if he developed frank and visible haematuria. Mr Pavlovic did not develop any further abdominal or urinary symptoms or experience any recurrence of his haematuria.
Straight after the accident, he had gone on a one-week pre-booked cruise to Tasmania. He did notice some stiffness in the chest and left renal area (flank) during the course of this holiday but it was not serious enough to see the ship’s doctor. Mr Pavlovic also had soreness in the left side of the neck, like there was a heavy weight dragging around his neck, and left lower back pain during this time. He had some headaches as well. He did not report arm or leg pain at this time.
When he got back to Sydney, on 28 November 2017, he attended his GP Dr Tomka who he had seen occasionally before the accident. Mr Pavlovic added that he was normally in good health and did not need to go near doctors often.
He had a CT scan and MRI scan of the brain, both of which were normal.
He thought he would just get better taking things easy but in fact things got worse, so he decided to put in a claim. Mr Pavlovic said he was made to feel guilty about doing this, as the insurer quizzed him about the late submission of the claim form.
His GP sent him to physiotherapy, and he had treatment for a stiff lower back, upper back, left side of neck and both shoulders, especially the left side. He felt these left-sided symptoms put increased pressure down the right side of his body, so then he had treatment to the right side as well. The Panel notes it does not appear to have the physiotherapy notes. An allied health recovery request form[31] dated 20 February 2017 (likely to be 2018) refers to a whiplash injury of the cervical spine, mechanical lower back pain and headaches. There is no mention of thoracic spine or shoulder treatment in these notes.
[31] Page 44 of the claimant’s bundle.
For the last 12 months, he has paid for physiotherapy himself, as the insurer has cut his benefits. He says his back gets “stuck” every three weeks but could not explain this further.
Mr Pavlovich was referred to Dr Coughlan, neurosurgeon, whom he saw on

6 December 2018. He noted a small C5/6 syrinx which the doctor thought was the result of a disc herniation and was post-traumatic, and he recommended anterior cervical discectomy and fusion. The insurer declined liability for surgery and suggested instead that he continue physiotherapy, which he did.
Mr Pavlovic said he had no subsequent injury or relevant condition develop.

Current symptoms

He has stiffness in the left side of the neck, the left side of his chest and left flank, and his lower back is stiff and “locks up” if he does not pace himself with physical activity.
He breaks out in sweats on the palms of the hands and soles of the feet and has tingling from the left side of the neck to the left upper arm and extensor aspect of forearm to the left thumb, index and middle fingers. He did not, when questioned about it, complain of left or right shoulder pain or any no symptoms in his right arm. Mr Pavlovich reported feeling electricity in the left side of the chest running down to the lateral left thigh and into the back of the knee. He did not, when questioned about it, complain of pain, or identify symptoms in his right leg.
He is unsure how long he can walk for. He said with sitting, he tries to push himself to the limits and could not nominate a time, as he says he does not watch the clock. He is unsure how long he can stand. He only drives locally to medical appointments in an automatic car.
His sleep is disturbed as he cannot get comfortable in his position and has tried various pillows and mattresses. He has a table beside him so that he can be self-sufficient and not have to ask his wife for things during the day.
His appetite has been up and down and has been affected by his mind. He had lost weight from 82kg, which he was at the time of the accident, but then increased to 92kg after the accident because of stress eating. He says he has no problems with chewing and swallowing food. His jaw feels stiff if the left side of the neck locks up and he develops severe headache. Otherwise, it feels normal in between these episodes.
His low back feels weak, he has stiffness, and he is very scared that the left side of the back will lock up on him.
He now walks on a level area in the yard around the pool but is so limited that he has chairs scattered around the edge of the pool so that he can sit down. If he leans to one side, he loses balance. He says he tends to sit leaning to the right side to take pressure off the left side of the body. He does not stand in the shower, as he feels unsteady, so he takes a bath but only when his wife is home so that he has help if required. He stays in his pyjamas all day. If he has to go out, his wife helps him with socks. His back locks up while he is at home and his wife has to assist him with transfers out of bed using a body belt and this will occur if he overdoes things physically. He is not in a good place emotionally.

Current and proposed treatment

Mr Pavlovic attends physiotherapy every two to three weeks. He sees Dr Kuljic, psychiatrist, and is prescribed Valdoxan (an anti-depressant) and Dothiepin (another anti-depressant) and has been on this medication since 2018.
Dr Tomka has prescribed Diazepam 5mg twice daily and Panadeine Forte for his headaches, up to two per day, but he tries to minimise the dosage.

EXAMINATION

General presentation

Mr Pavlovic appeared withdrawn and sat in a hunched position holding his body stiffly. He commented that he felt very cold but that he felt his head was burning (he had no fever). He was of very thin build with a height of 182cm and weight of 70.5kg.
His wife assisted him with undressing and re-dressing and he was very worried about his back locking up if he made a wrong move.
He pointed out his sweaty palms and feet and Medical Assessor Oates noted his palms were somewhat moist to touch. He sat for the one hour of the interview but said at the end he was feeling uncomfortable. He transferred on and off the examination couch slowly and with some difficulty and help from his wife.

Cervical spine

Medical Assessor Cameron noted that the claimant sometimes wears a neck brace. The claimant was not wearing a neck brace when examined by Medical Assessor Oates.
There was no guarding or muscle spasm observed in the cervical spine and no focal tenderness on palpation of the neck. There were no complaints of pain radiating into the shoulders but there were complaints of tingling in the left arm but not the right.
There was no dysmetria present as his cervical movements were:
(a)    flexion and extension were both less than one-quarter normal;
(b)    lateral flexion less than one-quarter normal on both sides, and
(c)    rotation one-half of normal range on both sides.
Reflexes, power and sensation in the upper limbs were tested and all were normal.
Upper arm girth was equal at 27cms in both the right and the left however the forearm girth was 26 cm in the right and 25.5 cm in the left. The Medical Assessors note that as per Table 8 in the Guidelines this is not clinically significant and reflects the claimant’s right-hand dominance.

Thoracic spine

In the thoracic spine, flexion and extension were less than one-quarter of normal range. Thoracic rotation was reduced by one third but equal on both sides. There was no spasm or guarding.
The claimant complained of an electric shock sensation in the left side of the chest only but there was no abnormality detected in the chest on testing.

Lumbar spine

There was no dysmetria as all active movements were significantly restricted in a symmetrical fashion:
(a) Flexion, extension, and
(b) right and left lateral flexion were less than one-quarter of normal range.
There were no complaints of radiating pain into either of the claimant’s buttocks or lower limbs. He did report a feeling of electricity from the left thigh down to the knee which he reported at the same time as a feeling of electric shocks in his chest.
There was however left sided paralumbar guarding observed and generalised left paralumbar tenderness on palpation.
All lower limb reflexes were tested, present and symmetrical. Plantar responses were both flexor. Sensation was intact on testing of both lower limbs. Power was normal in the right leg but there was pain inhibition in the left leg globally. The sciatic nerve stretch test was negative bilaterally.
The thigh girth was right 42cm and left 41cm. As per table 8 this is clinically not significant. The calf girth was equal on both the right and left at 31.5cm at 16cm below the inferior patellar pole.

Upper extremity

There was no wasting evident of the muscles in and around the shoulders.
Active range of shoulder movement measured with a goniometer was as follows.

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	90°, 70°, 60° with complaint of low back pain	90°, 60°, 70° with complaint of low back pain
Extension	50°	40°, 40° with complaint of low back pain
Adduction	40°	35°
Abduction	90°, 80°, 60° with complaint of pain	90°, 70°, 80° with complaint of pain
Internal Rotation	80°	40°, 40° with complaint of left flank pain
External Rotation	60°	40° with complaint of left flank pain

There was a variable range of motion in elevation of both shoulders and internal rotation of left shoulder. When this variation was put to the claimant, he said he had pain in the lower back and left flank when moving his shoulders but no pain in his shoulders or symptoms in his neck.
The Panel also notes the variation in measurements over time (see Annexure A to these reasons) which was also explained by the claimant as due to pain.
The movements in the left shoulder were marginally worse that the right. The absence of shoulder radiology is of concern to the Medical Assessors. With this level of restriction of movement, the Panel would expect there to have been some investigation of any shoulder pathology and reports in the GP notes.

Lower extremity

Mr Pavlovich’s hip movements could not be assessed because of pain inhibition (fear of his back locking up). The claimant would not demonstrate active hip movement. Mr Pavlovich however said he did not recall injuring either hip in the accident.
Right and left knees showed full range of movement in flexion and extension bilaterally.
The right and left ankles and hind feet showed normal range of movement bilaterally.

Jaw

Visually the claimant’s face was normal and there was no sign of swelling or deformation of the jaw.
There was normal range of movement of the jaw with no temporomandibular joint clicking or tenderness on palpation.
The claimant reported no difficulty with mastication (chewing) or deglutition (swallowing) and he had no difficulty evident with his speech during the one hour duration of the examination.

Chest and flank

The claimant’s chest and abdomen were examined and no abnormalities detected. There was in particular no complaint of sternal or rib pain.

Inconsistency

As well as the inconsistency in individual shoulder movements, the claimant reported to Medical Assessor Oates radicular type complaints of tingling into the left upper extremity, whereas Medical Assessor Cameron has a record of complaints down the right arm (as well as some left shoulder and arm pain). The claimant complained of electric shock type sensations in his chest and left leg he complained to Medical Assessor Cameron of pain radiating in his left leg.
Mr Pavlovic reported both left and right upper extremity radicular type symptoms to
Dr Fearnside. Dr Keller had no report of radicular symptoms, normal sensation in the right but the claimant reported reduced sensation from the left shoulder, arm and hand.
Dr McGroder has a history of electric like shocks down the whole of the left side.
Dr Casikar reported complaints of hypoaesthesia over various part of the body, including the face and forehead, which were inconsistent and did not seem to confirm to any standard dermatomal pattern.
Dr Dixon recorded radicular complaints with intermittent paraesthesia in both arms, extending to the thumbs. Dr Dixon has a report of right sided lower limb symptoms whereas the claimant described left lower limb symptoms to Medical Assessors Cameron and Oates.
Mr Pavlovic could not explain this other than to say his pain varied. While the medical members of the Panel can understand pain in one limb varying from time to time. It is difficult to accept variations of pain from one limb to any other limb. It is the clinical judgment of the medical members of the Panel that this variability in symptoms is not explained by the radiology and is not medically plausible.

CONSIDERATION OF THE ISSUES

Is the claimant’s evidence reliable?

The claimant’s ability to recall his 2001 motor accident injuries was of concern to the Panel. He told Medical Assessor Oates he only injured his knee in that accident whereas in his claim form of 2018 he mentioned neck and lower back and did not mention the knee. His inability to recall the name of his GP at the time and when prompted was also of concern.
Mr Pavlovich told Medical Assessor Oates the chassis of the vehicle he was driving was damaged however he believed the vehicle was repaired yet he told Dr Keller that the bumper bar was bent, and he did not know if the car was repaired.
The claimant said in the claim form he “blacked out” for a few minutes. He told Dr Keller he lost consciousness for 20 seconds in the accident and Dr Gertler has a history of him being rendered unconscious briefly. Dr McGroder records a history from the claimant of being “knocked out”. On questioning by Medical Assessor Oates, the claimant said he was not knocked out at all, and he denied any injury to his head.
The claimant told Medical Assessor Oates the impact speed of the insured vehicle was

60 kmph. The ambulance and hospital have a record that he did not know what the speed of the insured vehicle was. The Panel notes the claimant’s airbags did not deploy (it is the Panel’s experience they would not be expected to deploy in the front vehicle in a rear end collision) and the insured’s airbags could not have deployed because the claimant said the vehicle drove off and the vehicle would not have been driveable if the airbags had deployed. In the Panel’s experience that would suggest an impact speed of considerably less than

60 kmph.
It is now more than six years since the date of the accident. The Panel does not expect the claimant to recall correctly all of the events since then. Due to the identified inconsistencies and the claimant’s limited recall of events, the Panel will look to the documentary material for confirmation of the claimant’s history and complaints.

Did the claimant injure his head and jaw?

The claimant lists in his claim form a concussion, dizziness and jaw injury. The claimant denied to Medical Assessor Oates sustaining a head injury. The claimant denied any part of his body hitting any part of the car.
The Panel notes the St Vincent’s hospital record does not mention a head injury or jaw injury. Dr Tomka does not mention a head injury or jaw injury. The Panel notes the claimant has denied any impact of his head in the accident to Medical Assessor Oates and to his own experts Dr Dixon and Dr Fearnside.
The medical members of the Panel note while the claimant may have been shocked by the impact it is not medically plausible for him to have lost consciousness for a few minutes or even 20 seconds without having sustained a head injury or being able to drive away from the scene. The Panel does not therefore accept the claimant sustained a head injury and there is therefore no impairment assessment necessary.
The Panel is also not satisfied that the claimant sustained a jaw injury. There is no contemporaneous medical evidence to suggest that he did, and it is the clinical judgment of the medical members of the Panel that the denial by the claimant of any blow to his head means there is no possible mechanism for a specific or frank head or jaw injury.
In any event, the medical examination conducted by Medical Assessor Oates found no abnormality in the jaw and therefore had there been an injury to the jaw there would be a 0% WPI resulting from it.

Did the claimant injure his chest and flanks?

The claimant indicated he had injured his chest in the accident. Dr Tomka has included a chest injury in the medical certificate and the ambulance and hospital records have contemporaneous complaints of a central chest injury. After the first few attendances on

Dr Tomka, there are no further complaints of chest pain, pain in the sternum or ribs.
The claimant complained to Medical Assessor Cameron and Medical Assessor Oates of left sided chest and flank pain. When examined by Medical Assessor Oates there was no indication of any abnormality in the chest or flank.

The Panel accepts that the mechanism of accident could and did give rise to a seat belt injury to Mr Pavlovic’s chest. As the driver, the seat belt would have been over the claimant’s right shoulder and crossing his chest to fasten across his abdomen at his left hip.
Clause 1.23 of the Guidelines provides that some:
“… injuries may not result in an assessable impairment covered by these Guidelines and the AMA4 Guides. For example, uncomplicated healed sternal and rib fractures do not result in any assessable impairment.”
There is no suggestion in the medical evidence in this matter that Mr Pavlovic sustained a sternal or rib fracture. Early complaints of sternal (central chest) pain were made. The left sided chest complaints appear to be linked to the claimant’s complaints of pain or symptoms down the whole of his left side.
It is the clinical judgment of the medical members of the Panel that it is implausible for the claimant to be having chest pain caused by a soft tissue injury six years ago.
The Panel is of the view Mr Pavlovic sustained a soft tissue injury to the chest which has resolved leaving no permanent impairment.
The Panel also notes the claim form identified “blood in liver” as an injury in the accident although no such injury was referred for assessment. The claimant reported to Dr Keller feeling that his kidney was compressed.
The claimant’s blood when tested at hospital after the accident was positive for micro haematuria or blood in the urine which would not have been visible, but which indicated a seat belt injury. There is mention of pain in the flanks which is the area on the sides and back of the abdomen between the lower ribs and the hips.
There is nothing in the records of Dr Tomka or elsewhere to suggest any further symptoms of haematuria. It is the clinical judgment of the medical members of the Panel that whatever injury the claimant sustained to his flanks or abdomen in the accident, there are no ongoing symptoms in relation to it. The Panel is therefore of the view that there is no assessable impairment resulting from that injury.

Did the claimant injure his spine?

The claimant alleged injuries to the neck (whiplash) and back (whole) in the claim form.

Dr Tomka’s medical certificate indicates injuries to the neck, upper and lower back. The ambulance report and hospital note does not specifically mention any form of spinal pain. The claimant went on a cruise the day after the accident and saw his doctor upon his return but not the ship’s doctor during the one-week cruise. It is the clinical judgment of the medical members of the Panel that this does not indicate significant injuries were sustained. Had the claimant been more seriously injured, the Panel would have expected him to abandon the holiday or seek treatment during the course of the cruise.
Dr Tomka’s notes do record consistent complaints of neck, back, shoulder and head pain but there is no record of any examination findings to suggest any neurological deficits. The medical members of the Panel note that at no stage has anyone examined the claimant and found any of the five signs of radiculopathy.
The medical records of Dr Tomka’s practice do not reveal any recorded complaints of radiating pain or “electric shock” sensations. The claim form pain diagram completed by the claimant shades the whole of his right leg. The first record of any radicular symptoms is found in Dr McGroder’s report in September 2018. He has a history of electric shock feelings all the way down the left side but found no neurological deficits in either the upper or lower limbs.
On 10 January 2019 Dr Casikar neurosurgeon reported mainly left sided symptoms but was unable to make a neurological diagnosis and said Mr Pavlovic’s symptoms did not relate to the pathology shown at C5/6. He was concerned about the claimant’s mental state.
Dr Dixon, orthopaedic surgeon in February 2019 took a history of intermittent paraesthesia in both arms to the thumbs, bilateral shoulder pain and radicular pain in the right leg. Dr Dixon found reduced reflexes but no other neurological signs or symptoms. He also found 1cm wasting of the left leg, which is not clinically significant and inconsistent with radicular complaints in the right leg. Dr Dixon found no other neurological signs or symptoms in the lower limbs.
Professor Fearnside, neurologist recorded similar findings.
The Panel accepts the contemporaneous records and is satisfied the claimant sustained a soft tissue injury to his neck, mid and lower back exacerbating pre-existing degenerative changes in his spine and, in the thoracic spine, the pre-existing Scheurmann’s disease.
It is the clinical judgment of the medical members of the Panel is that the radiology does not explain the widespread and debilitated state of the claimant. His complaints of pain, symptoms and difficulty walking and lifting or carrying are out of proportion to the nature of the injuries sustained.

What is the impairment assessment in the spine?

Assessment of the spine required consideration of Chapter 3 of AMA 4 Guides. Only the diagnostic related estimate (DRE) method of assessment is allowed (cl 1.111 of the Guidelines).
The spine is divided (cl 1.131) into three regions the impairments of which are to be combined:
(a)    cervical;
(b)    thoracic, and
(c)    lumbar.
There are five diagnostic related categories and a number of indicia provided to assist an assessor in determining which of the categories is the correct category (see Table 7). The first is DRE category I which is selected if there are symptoms which may include pain.
A classification of DRE category II requires there to be:
(a)    pain with guarding; or
(b)    non-uniform range of motion – dysmetria, or
(c)    non-verifiable radicular complaints defined in table 8 as:
(i)symptoms (shooting pain, burning sensation, tingling), and
(ii)which follow the distribution of a specific nerve root but where there are no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes
DRE category III requires there to be two or more of the five signs of radiculopathy provided for in cl 1.138:
“(a) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 8)
(b) positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 8)
(c) muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 8)
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
If any impairment to the shoulders results from an injury to the neck, then, in accordance with the decision of the Court in Nguyen v Motor Accidents Authority of New South Wales and Anor[32] that impairment must be assessed, and its value included in the determination of the claimant’s total WPI. This principle applies equally to the lower limbs and the lower back.
[32] [2011] NSWSC 351.

Cervical spine

On examination by Medical Assessor Oates, there was no guarding, no dysmetria and no neurological deficit found.
It is the clinical judgment of the medical members of the Panel that Mr Pavlovich’s claimed non-verifiable radicular complaints at the re-examination with Medical Assessor Oates have varied too much over time and across different medical examiners to be regarded as a valid indicator of permanent impairment arising from an injury six years ago.
Extensive testing by Medical Assessor Oates did not reveal any objective signs of radiculopathy. The claimant’s sweaty palms are not a sign of radiculopathy or a radicular symptom.
While the MRI scans show a disc bulge, this finding does not mandate a finding of radiculopathy. Radiculopathy is a symptom of a nerve root injury which can be caused by a disc bulge impinging on a nerve root however in Mr Pavlovic’s case while he has some narrowing of the right nerve root exit at C5/6, there are no signs of radiculopathy at this or any other level.
It is the Panel’s assessment that Mr Pavlovich’s cervical spine soft tissue should be assessed as resulting in a DRE category I, 0% WPI.

Thoracic spine

There was no dysmetria, no guarding, no non-verifiable radicular complaints and none of the five signs of radiculopathy to justify placement in a higher DRE category.
The claimant complained of electric shocks in his chest which could be a non-verifiable radicular symptom. However, the medical member of the Panel, in their clinical judgment, cannot correlate these complaints to the radiology and the complaints of such shocks in the whole of the left side do not correspond to an appropriate dermatomal distribution.
The thoracic spine injury is assessed by the Panel at DRE category I giving 0% WPI.

Lumbar spine

The claimant claimed electric shock sensations in his left thigh and to the left knee. In his claim form he reported injury and symptoms in his right leg. It is the clinical judgment of the medical members of the Panel that these claimed non-verifiable radicular complaints at the re-examination with Medical Assessor Oates have varied too much (and in particular across the two limbs) to be regarded as a valid indicator of permanent impairment arising from an injury six years ago.
However there was identifiable guarding present which is a clinical differentiator for this DRE category and cannot be manufactured.
None of the five signs of radiculopathy were present to justify placement in a higher DRE category.
The lumbar spine soft tissue injury is therefore assessed at DRE category II giving a 5% WPI.

Did the claimant injure his left or right leg?

Medical Assessor Cameron was asked to assess a right leg and left leg injury. The submissions do not add anything further to the description of these injuries. The claimant alleged a right leg injury in the claim form and coloured the whole of the right leg in the pain diagram.
Dr Tomka did not include an injury to either leg in his medical certificate or indicate a lower limb injury in the pain diagram he completed. There is nothing in Dr Tomka’s notes to suggest any right or left leg injury.
Dr Dixon in February 2019 has a record of right sided sciatic pain down the back of the claimant’s right leg to the ankle as well as some shooting pain in the left leg but not below the knee. Dr Fearnside had a history of right sided sciatica developing some time after the accident with a shooting pain in his left leg but not below the knee.
Medical Assessor Cameron has a history of radiating left leg pain (but not right). Medical Assessor Oates was given a history of left sided electric shock like sensations but no right leg symptoms.
The Panel is not satisfied that the claimant sustained an actual or frank injury to either lower limb. The Panel is however satisfied that the claimant could be experiencing symptoms in his legs after the accident referred from his back injury.
In terms of impairment, the Panel notes the normal range of motion in the claimant’s knees, ankles and feet. The Panel also notes Medical Assessor Oates was unable to examine the claimant’s hip motion due to the claimant’s complaints of pain.
The Panel has considered the records of Dr Tomka which do not mention lower limb symptoms. The Panel also notes Dr Tomka’s view that the claimant has limited physical injuries, but that Mr Pavlovic has psychological issues which may be affecting his recovery. The Panel notes neither Dr Dixon or Dr Fearnside assessed an impairment in the lower limbs.
It is the clinical judgment of the medical members of the Panel that whatever symptoms the claimant may be experiencing in his lower limbs, the claimant has no impairment to his lower limbs resulting from those symptoms and the accident.

Did the claimant injure his shoulders?

A right shoulder injury is mentioned in the claim form, Dr Tomka’s medical certificate and in GP records. A left shoulder injury is also mentioned in in the claim form, the medical certificate of Dr Tomka and in his records.
No radiology of the right or left shoulder has been put before the Panel and there is no suggestion in the notes any shoulder radiology has been requested. The Panel also notes the physiotherapy request form mentions a whiplash injury and lower back injury and headaches but no right or left shoulder injury. This documentation suggests to the medical members of the Panel there has been no actual shoulder injury, but shoulder symptoms referred from a neck injury.
The claimant says his body did not impact any part of the vehicle which also suggests he did not sustain a frank or direct injury to either of his shoulders. The Panel notes the claimant was the driver of a motor vehicle with the seat belt over his right shoulder. While the mechanism of injury (a rear end motor accident) could have resulted in a right shoulder injury (due to the placement of the seat belt), the medical members of the Panel are not of the view that a left shoulder injury could have occurred based on the information about the accident that is before them.
The Panel notes the claimant’s right shoulder range of motion has been generally greater than the left shoulder range of motion including at the examination by Medical Assessor Oates. The medical members of the Panel would have expected the right shoulder range of motion, if injured by the seatbelt to have a greater loss of motion than the left.
It is the clinical judgment of the medical members of the Panel that the claimant did not sustain a specific or frank and direct injury to either of his shoulders in the accident. The Medical Assessors are however of the view that an impairment to the shoulders could result from an injury to the cervical spine.
The limitation of right and left shoulder movements has varied within the examination, which the claimant said was due to pain. The limitation of right and left shoulder movement has varied in the six years since the accident which the claimant also said was due to pain.
The claimant, on the day of the examination, said that some of his variable shoulder range of motion was due to lower back pain and flank discomfort but not from his neck or cervical spine pain. It is the clinical judgment of the medical members of the Panel that it is not plausible for there to be a restricted range of shoulder motion caused by a lower back or flank injury.
The medical members of the Panel also note that the claimant’s cervical spine radiology indicates a possible C5/6 nerve root encroachment on the right which would explain any right sided shoulder and arm symptoms, but not the left.
It is the clinical judgment of the medical members of the Panel that the documentary evidence, the variability of symptoms and the claimant’s implausible explanation for it is such as to invalidate active range of movement as a method of assessing permanent impairment.
The Panel is not therefore satisfied that the claimant has any permanent impairment in his right or left shoulder resulting from any injury to his cervical spine.

CONCLUSION

Of the injuries originally referred for assessment and the subject of this review, the Panel’s assessment is:
(a)    cervical spine  0%;
(b)    thoracic spine  0%;
(c)    lumbar spine  5%;
(d)    right shoulder  no direct injury and no assessable impairment;
(e)    left shoulder  no direct injury and no assessable impairment;
(f)    left leg  no direct injury and no assessable impairment;
(g)    right leg injury  no direct injury and no assessable impairment;
(h)    chest injury  no assessable impairment, and
(i)    jaw injury  no injury and no assessable impairment.
The total WPI found by the Panel is the same as that of Medical Assessor Cameron’s (5% WPI). However, the findings of impairment in relation to individual injuries is different. The Panel has found a lumbar spine impairment of 5% and a cervical spine impairment of 0% whereas Medical Assessor Cameron found a 0% lumbar spine impairment and a 5% cervical spine impairment.
The Panel considers the most appropriate step for it to take and in order to avoid any further disputation is to revoke the certificate.
The final outcome therefore is that Mr Pavlovic does not have a WPI greater than 10%.

APPENDIX A – COMPARATIVE SHOULDER MOTION MEASUREMENTS

RIGHT	Flexion	Extension	Abduction	Adduction	Internal Rotation	External Rotation
Dr Fearnside 2 Sep 19	110	40	110	50	70	80
Dr Dixon 19 Feb 19	160	40	140	40	70	80
Dr Keller 8 Apr 19	135	30	60	40	90	90
Ass Cameron 27 Feb 22	120	30	90	30	80	70
Review Panel 3 Aug 23	90, 70, 60	50	90, 80, 60	40	80	60

LEFT	Flexion	Extension	Abduction	Adduction	Internal Rotation	External Rotation
Dr Fearnside 2 Sep 19	80	30	70	40	40	30
Dr Dixon 19 Feb 19	130	40	130	40	70	80
Dr Keller 8 Apr 19	80	20	45	40	45	60
Ass Cameron 27 Feb 22	90	30	90	30	80	70
Review Panel 3 Aug 23	90, 60, 70	40, 40	90, 70, 80	35	40, 40	40

[2023] NSWPICMP 552

2 November 2023