Philbin-Malucelli v Insurance Australia Limited t/as NRMA Insurance

[2025] NSWPICMP 275

DETERMINATION OF REVIEW PANEL

CITATION:

Philbin-Malucelli v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 275

CLAIMANT:

Thomas Philbin-Malucelli

INSURER:

Insurance Australia Limited t/as NRMA Insurance

REVIEW PANEL

MEMBER:

Gary Victor Patterson

MEDICAL ASSESSOR:

David McGrath

MEDICAL ASSESSOR:

David Gorman

DATE OF DECISION:

22 April 2025

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); degree of permanent impairment disputes; claimant’s motorcycle collided with the front passenger side of the insured station wagon; insurer admitted liability for statutory benefits beyond 26 weeks; denied liability for the damages claim and did not concede entitlement to non-economic loss; claimant underwent surgical repair of torn ulnar collateral ligament of left thumb and right shoulder surgery with insertion of plate and screws (later removed); Medical Assessor (MA) certified 20% whole person impairment (WPI); Held – Review Panel found 9% WPI for injuries to cervical spine, lumbar spine, right shoulder, left thumb and scarring; Review Panel explained why its findings differ; no issues of principle; MAC revoked and new certificate issued.

DETERMINATIONS MADE:  

CERTIFICATE

REVIEW PANEL ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENT

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

1.     The Review Panel revokes the Certificate of Medical Assessor Mohammed Assem dated
10 July 2024 and issues a new Certificate determining that:

         i.       the following injuries caused by the motor accident give rise to a permanent impairment of 9% and IS NOT GREATER THAN 10%:

1.	Buttocks	Disfiguring post-traumatic wound to the left buttock
2.	Cervical Spine	Injury to the cervical spine
3.	Clavicle	Fracture of the right clavicle
4.	Lumbar Spine	Lumbar spine strain injury with radiculopathy
5.	Skin – scarring (minimal)	Post-surgical scarring
6.	Thigh	Disfiguring post-traumatic wound to the left thigh
7.	Thumb	Tear of the ulnar collateral ligament of the left thumb

·

STATEMENT OF REASONS

INTRODUCTION

1. On 3 October 2022, Thomas Philbin-Malucelli (the claimant) was riding a motorcycle along Bondi Road, Bondi, at a speed of approximately 45kmph. He was wearing a full-faced helmet, gloves, shorts, T-shirt and leather shoes. As he approached the intersection with Dudley Street, a Mazda station wagon, travelling in the opposite direction, made a right-turn directly in the claimant’s path. The claimant’s motorcycle collided with the front passenger side of the insured station wagon. The impact of the collision threw him off his motorcycle. His motorcycle fell on top of him.

2. The claimant recalls the initial impact to his right leg before he was propelled into the vehicle and onto the roadway. He did not lose consciousness. Ambulance and Police Officers attended the scene. The ambulance report noted obvious deformity to the right clavicle, suggesting a fracture, with abrasions on the right elbow, right lower leg and left thumb. A cervical collar was applied as a precaution. The claimant was transported to St Vincent’s Hospital, where he was diagnosed with a comminated fracture of the right clavicle, a torn ligament in his left thumb, a haematoma in his left cuff and knee, lower back injuries, and multiple abrasions and lacerations, particularly on his right leg. The claimant underwent left thumb surgery approximately a week after the accident. He underwent right shoulder surgery a few weeks later with insertion of plate and screws which later were removed.

3. NRMA (the insurer) indemnifies the owner and/or the driver of the at-fault vehicle for liability to pay to the claimant any damages under the Motor Accident Injuries Act 2017 (the Act). The insurer admitted liability for payment of statutory benefits beyond 26 weeks, denied the claim for common law damages (pending further investigations) and did not concede that the claimant’s whole person impairment exceeded the 10% threshold.

ASSESSMENT UNDER REVIEW

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

2. Medical Assessor Assem certified on 10 July 2024 as follows:

The following injuries caused by the motor accident give rise to a permanent impairment of 20% and IS GREATER THAN 10%:

·     Clavicle – fracture of the right clavicle

·     Thumb – tear of the ulnar collateral ligament of the left thumb

·     Lumbar spine – lumbar spine strain injury

·     Cervical spine – consequential injury

·     Skin scarring – post surgical scarring

Medical Assessor Assem assessed 11% whole person impairment for the right shoulder – 3% whole person impairment for the left thumb, 5% whole person impairment for the lumbar spine and 2% whole person impairment for scarring, giving a combined 20% whole person impairment. He made no findings in relation to pre-existing or subsequent impairments, apportionment or treatment effects.

1. Medical Assessor Assem found that the following injuries WERE NOT caused by the motor accident:

   ·        buttocks – disfiguring post-traumatic wound to the left buttocks, and

   ·        thigh -disfiguring post-traumatic wound to the left thumb.

   He did not so certify.

THE REVIEW

1. The insurer sought a review of Medical Assessor Assem’s certificate, on the grounds that the medical assessment was incorrect, within the meaning of s 7.26 of the Act, in a number of material respects. The insurer relies on the particulars set out in the application and supporting documentation.

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

3. In relation to the right clavicle, the insurer submits that Medical Assessor Assem’s certificate is inconsistent with the claimant’s treating records relating to the reported symptoms and restrictions. Based upon the opinions of the treating orthopaedic surgeon, Dr Gavin Soo, the insurer submits that there is minimal impairment of the right clavicle. The insurer notes that Medical Assessor Assem did not refer to Dr Soo’s report. The insurer further notes, at a consultation with Dr Soo on 30 October 2023 (one year post surgery), the claimant reported satisfaction with the clavicle since surgery and that he had full range of movement to the right shoulder with no pain or discomfort.

4. The insurer submits that Medical Assessor Assem has not addressed or adequately addressed the inconsistencies with the injured person to ensure accuracy and submits that the Medical Assessor has not complied with s 4.20 and s 6.41 of the Motor Accident Guidelines (the Guidelines).

5. In relation to the lumbar spine, the insurer the submits that Medical Assessor Assem’s certificate is inconsistent with treatment medical evidence and that his examination does not support a finding of DRE Lumbosacral category II or 5% whole person impairment.

6. The insurer submits that the Medical Assessor does not address whether he considered the injury to the lumbar spine to be degenerative in nature, notwithstanding the claimant’s treating evidence, in particular, the MRI of the lumbar spine dated 24 July 2023.

7. The insurer notes that when assessing non-uniform loss of range of motion (dysmetria) in accordance with the Guidelines, Medical Assessors must include all three planes of motion for the cervicothoracic spine (flexion/extension, lateral flexion and rotation). It is submitted that Medical Assessor Assem has not used Table 6.8 for dysmetria.

8. In relation to the range of motion, it is submitted that Medical Assessor Assem has not recorded his findings in percentages or fractions. The insurer submits the ranges of motion recorded in the certificate is, as such, contrary to the Guidelines.

9. The insurer notes on page 5 Medical Assessor Assem considered rotation within the normal range. Th insurer submits that Medical Assessor Assem has used the incorrect Guidelines for consideration.

10. The insurer submits non-verifiable radicular complaints require the neurological signs to follow a dermatomal distribution. The insurer says Medical Assessor Assem has failed to provide sufficient reasons supporting that finding.

11. The insurer submits that Medical Assessor Assem has not provided a reasoning process, or a clear path of reasoning, as to his assessment that the claimant meets the criteria of DRE Lumbosacral Category II impairment rating which, it is submitted, is inconsistent with the Medical Assessor’s findings on clinical examination, and is not consistent with the medical evidence before the Medical Assessor.

12. The insurer submits that a 0% whole person impairment rating arises in accordance with the methodology set out in AMA 4, Chapter 3, page 102.

13. In relation to the left thumb, the insurer submits that Medical Assessor Assem failed to evaluate the contralateral uninjured side, consistent with cl 6.51, for possible apportionment.

14. In relation to scarring, the insurer submits that Medical Assessor Assem failed to describe the scar consistent with cl 6.24 of the Guidelines. The insurer notes that Medical Assessor Assem considered the scarring with reference to its impact on the claimant’s modelling career. The insurer submits that Medical Assessor Assem is incorrect in his evaluation in accordance with cl 6.13 and 6.15 – 6.16 of the Guidelines.

15. The insurer’s review application was opposed by the claimant on various grounds. The claimant deals with each of the insurer’s submissions in turn. It is not necessary to summarise the claimant’s reply submissions in detail as they were not accepted by the President’s delegate. Briefly, the claimant’s reply submissions were as follows:

    (a)   The claimant submits that the insurer has failed to demonstrate any reasonable cause for suspicion of material error. The claimant submits that the insurer application is merely a previous attempt to protect its own best interest. In the claimant’s submission, it is imperative to read the Medical Assessor’s decision as a whole, with a beneficial construction and accept findings are validly made where they are reasonably open to be found.

    (b)   The claimant notes that the insurer has taken issue with the assessment provided by Medical Assessor Assem being similar to the assessment of the claimant’s expert, Dr Dixon and that the assessment of Dr Dixon was conducted via video conferencing. The claimant submits that the method of assessment is irrelevant to the validity of the assessment. The similarities in the assessment attest to the accuracy of the assessment and stabilisation of the claimant’s injuries. Contrary to the insurer’s submission, Medical Assessor Assem was not required to provide a lengthy statement as to why he reached a similar conclusion to Dr Dixon.

    (c)   The claimant reputes the insurer’s submission that Medical Assessor Assem’s assessment of the right clavicle is inconsistent with the claimant’s treating records and that the Medical Assessor has not addressed the inconsistencies. Particulars are given. Insofar as the insurer relies upon the records of Physio K to support its submission, the claimant notes that they were not served in evidence. The claimant submits that the evidence that was before the Medical Assessor does not show gross inconsistencies as alleged by the insurer.

    (d)   Noting the Medical Assessor’s comments on the claimant’s current symptoms, treatment and giving consideration to the available evidence, which does note ongoing pain, restriction and disability, the claimant submits that the Medical Assessor’s certificate is not inconsistent with cls 6.0 and 6.41 of the Guidelines.

    (e)   The claimant reputes the insurer’s submission that Medical Assessor Assem’s assessment of the lumbar spine is inconsistent with the Guidelines and the treating evidence. The claimant submits that the Medical Assessor’s examination of the lumbar spine is concisely described in the certificate.

    (f)    As to the insurer’s submission that the Medical Assessor did not adhere to cl 6.81 of the Guidelines, as he did not address whether the claimant’s lumbar spine injury was degenerative in light of the previous accident in 2015 and the findings of the MRI investigation dated 24 July 2023, the claimant notes that the Medical Assessor references the contents of the MRI lumbar spine, references the claimant’s prior accident and lists the MRI investigation under material considered.

    (g)   The claimant submits that there is insufficient evidence to contend that the claimant’s prior accident is of any clinical significance to the current symptomatology and the degenerative change noted on an MRI. In accordance with the Guidelines, if there is no objective evidence of the pre-existing symptomatic permanent impairment, then it is possible present should be ignored (6.31 of the Guidelines). Also, that pre-existing impairments should not be assessed if they are unrelated or not relevant to the impairment arising from the motor accident (6.33 of the Guidelines).

    (h)   In relation to his assessment of the lumbosacral spine, the claimant submits that Medical Assessor Assem assessed two planes of motion (flexion/extension and lateral flexion), as prescribed by Table 6.8 of the Guidelines. The claimant notes that, contrary to the insurer’s submission, the inclusion of three planes of motion are necessary only for assessment of dysmetria in the cervicothoracic spine.

    (i)    The claimant submitted that Medical Assessor Assem demonstrated a clear path of reasoning to his assessment of DRE category II for the lumbar spine:

    “I considered that there was asymmetry of movement and spinal dysmetria. In addition, reported pain radiating down the posterolateral aspect of his right leg to level of his popliteal fossa.”

    The claimant submits that such a description is sufficient to meet the criteria.

    (j)    In response to the insurer’s submission that Medical Assessor Assem failed to consider the uninjured side when assessing the left thumb. The claimant submits that cl 6.51 does not expressly state that the uninjured side “must” be used in assessment, but rather “can serve as a baseline”. The claimant submits that Medical Assessor Assem has not incorrectly applied cl 6.51 of the Guidelines when assessing the claimant’s left thumb injuries.

    (k)   In relation to the alleged incorrect application of cl 6.264 of the Guidelines, in assessing the claimant’s scarring, the claimant submits that the insurer has failed to provide any reasoning as to how the assessment of 2% WPI is incorrect.

16. President’s delegate Stephanie Wiggan issued a Determination of an Application for Review of a Medical Assessment on 23 September 2024 which stated the satisfaction of the President’s delegate that there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect. The basis of that decision was stated to be the Medical Assessor’s failure to demonstrate his path of reasoning in reaching his findings and ultimate determination in respect to the assessment of the lumbar spine. Particular reference is made to the insurer’s submissions relating to degenerative changes in the lumbar spine and that non-verifiable radicular complaints require the neurological signs to follow a dermatomal distribution.

STATUTORY PROVISIONS

1. A medical assessment matter is determined in accordance with Division 7.5 of the Act. The matter is determined at first instance by a Medical Assessor pursuant to s 7.20 of the Act and, on review, pursuant to s 7.26 of the Act, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).

2. Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission, including proceedings before a Panel, reviewing a decision of a Medical Assessor.[1]

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

3. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written Application.[2]

   [2] Rule 128 of the PIC Rules.

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

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

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

CAUSATION OF INJURY

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

   “6.5   An assessment of the degree of permanent impairment is a medical assessment matter under cl 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical Assessors must be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.

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

   Causation means that a physical, chemical or biological factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:

   1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.

   2.The alleged factor did cause or contributed to the worsening of the impairment, which is a non-medical determination.

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

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

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

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

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

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

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

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

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

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

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

   (4)   a careful and thorough physical examination;

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

MATERIAL BEFORE THE REVIEW PANEL

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

Doc No.	Document	Date	Page No.
A1	Claimant’s submission	8 March 2023	1
A2	Statement of evidence of the claimant	24 August 2023	3
A3	Application for Personal Injury Benefits	5 October 2022	7
A4	Application for common law damages	6 March 2023	13
A5	Email to insurer – request to concede WPI threshold	28 November 2023	16
A6	Letter from insurer denying concession of WPI threshold	1 February 2024	19
A7	NSW Ambulance report	3 October 2022	33
A8	Operation report of Dr Mark Navarro	14 October 2022	25
A9	Operation report of Dr Gavin Soo	21 October 2022	26
A10	X-ray of right clavicle - report of Dr Brad Milner	19 October 2022	28
A11	MRI of lumbar spine – report of Dr Kenneth Sesel	24 July 2023	39

FINDINGS:

Comparison is made with the prior examination of 10 October 2022. Comminuted fracture of the mid to distal third of the right clavicle. Near complete inferior displacement, has slightly reduced. Small amount of overlap, similar. Coracoclavicular interval within normal limits. Acromioclavicular joint at the upper limits of normal. No displacement.

A11 MRI of lumbar spine – report of Dr Kenneth Sesel 24 July 2023 39

CONCLUSION:

1.Facet arthritis at the lower lumbar levels

2.Moderate early degenerative disc abnormality at L5/S1

3.No disc height encroachment into the central canal or foraminae and no nerve root impingement is seen

A12	Report of Dr Gavin Soo – orthopaedic surgeon	31 October 2022	41
A13	Report of Dr Gavin Soo – orthopaedic surgeon	30 October 2023	42

Thomas has been very happy with the clavicle since his surgery. He has had no complaints with the shoulder except for a painless click to the clavicle. He has been using the shoulder freely and going to the gym regularly. In the last few months, he has developed pain to his right side of the neck and he gets headache. He has stiffness when he extends his neck.

INVESTIGATIONS:

X-ray show the fracture healed and the hardware intact. X-rays of his cervical spine show moderate foraminal stenosis at the L5 level due to spondylosis.

It is likely his headaches and stiffness are due to his spondylosis and foraminal stenosis of his cervical spine. I have advised him to see his physiotherapist about this.

A14 Report of Dr Mark Navarro – hand surgeon 6 October 2022 44

IMPRESSION:

Thomas has sustained a fracture of his right clavicle and complete tear of the ulnar collateral ligament at his left first MP joint.

TREATMENT:

I have recommended repair of the ulnar collateral ligament and possible K-wiring of the left first MP joint.

A15	Report of Dr Mark Navarro – hand surgeon	24 October 2022	45
A16	Report of Dr Mark Navarro – hand surgeon	1 December 2022	46

Thomas is now six weeks following surgery. He reports no pain in his left thumb. The scar is softening and non-tender. There is no tenderness over the first MP joint. The repaired ulnar collateral ligament is stable. He has 35° of MP and 45° of IP flexion with no pain. There is no neurovascular deficit.

A17 Report of Mark Malouf – general surgeon 19 October 2023 47

He suffered some trauma to many parts of his body during a major motorbike accident on 3 October 2022. This involved direct trauma to the right lateral knee and thigh and buttock, a haematoma on the left cuff, fractures involving his left thumb and his right clavicle and general parts and bruises. He has had surgery to different parts but now he has come up with an obvious set of varicose vain in the right leg in that area of trauma….. All of this is the result of direct trauma to that area, putting high pressure in those veins and rupturing them. The right leg can be dealt with hear in the surgery without going to theatre.

A18	Referral of Dr Kourosh Mahmoodi to Inlight Psychology	17 November 2022	48
A19	Referral of Dr Kourosh Mahmoodi to Physio K	6 July 2023	49
A20	Referral by Dr Kourosh Mahmoodi – GP to Mark Malouf	11 October 2023	50
A21	Initial needs assessment of On Track Rehab	26 October 2022	51
A22	Rehab Plan No. 2 from On Track Rehab	27 April 2023	59
A23	Rehabilitation Plan No. 4	62
A24	Medico-legal report of Dr Drew Dixon, consultant orthopaedic surgeon and Medico-legal consultant	19 September 2023	65

PRESENT SYMPTOMS

He reports pain and stiffness in his lower back and right shoulder and reports the hematoma in his left cuff in the main has resolved, but he has stiffness of his left thumb following surgical repair and has surgical scarring at his clavicle and thumb. He reports loss of grip strength in his left hand. He has developed post-traumatic stress disorder. He had open redaction and internal fixation procedures to treat his clavicular fracture and surgical repair of the ulnar collateral ligament of his left hand.

RADIOLOGICAL INVESTIATIONS          

His investigations include an X-ray of the right clavicle on 19 October 2022 which showed a comminuted fracture of the mid to distal third of the right clavicle with near complete inferior displacement with overlap and AC joint appeared normal.

MRI of the lumbar spine on 24 July 2023 showed facet arthritis at the lower lumbar levels with moderate early degenerative disc abnormality at L5/S1 without neural impingement.

X-ray of the left thumb showed radial laxation at the base of the proximal phalanx consistent with complete tear of the ulnar collateral ligament of the first MCP joint.

Operation report from Kogarah Private Hospital on 15 October 2022 noted a torn ulnar collateral ligament at the first MCP joint and this was reattached to the base of the proximal phalanx using an anchor and cord suture.

Operation report at Norwest Private Hospital on 21 October 2022 noted a longitudinal incision to the clavicle with fracture ends identified and reduced, there being a highly comminuted and shorted fracture. Internal fixation was performed with clavicle plate and screws.

SUMMARY OF INJURIES AND DIAGNOSIS.

1.Healed fracture of the right clavicle with ORIF remaining in situ.

2.Healed ulnar collateral ligament of the left thumb with marked stiffness of the MCP and IP joints and carpo-metacarpal joint of the left thumb.

3.Back strain injury with post-traumatic lumbar stiffness with residual erector spinae muscle spasm and dysmetria.

4.Some radicular complaints extending from the buttock and thigh as far as the knee.

5.Disfiguring post-traumatic wound below his right knee and residual sensory changes in that area as well as the posterior right cuff.

6.Impaction of his injuries on his ABLs.

7.Reliance on anti-inflammatories,

8.Post-traumatic stress disorder requiring counselling.

The above conditions are causally related to the injuries received in the subject motor vehicle accident.

WHOLE PERSON IMPAIRMENT

This claimant’s whole person impairment for the post-traumatic stiffness of the right shoulder is from Pie Charts 38, 41 and 44, AMA IV pages 43 – 45, 16% upper extremity impairment which equates to 10% whole person impairment.

That for the scarring at his right shoulder and right knee where there is hypertrophic irregular scarring with adherence and the scars are readily visible with shorts and with a singlet and he remains conscious of them and they are painful if bumped, impacting on his ADLs, is from the TEMSKI Scale, 2% whole person impairment.

That for the stiffness of the left thumb is from Pie Charts 10 and 13 and Tables 5, 6 and 7, AMA IV, 15% thumb impairment which equates to 5% hand impairment which equates to 5% upper extremity impairment which equates to 3% whole person impairment.

That for the lumbar spine where he has post-traumatic stiffness with dysmetria and facet arthralgia with radicular complaint with right buttock and thigh sciatica with aggravation of previously asymptomatic facet arthritis and moderately early degenerative discal abnormality at L5/S1, which is ongoing, is from Table 72, Page 110, AMA IV, DRE Category II, 5% whole person impairment.

This gives a total from the Combine Values Chart of 19% whole person impairment.

He has reached the maximum medical improvement. There were no symptomatic pre-existing conditions,

A25	Clinical records of Kogarah Private Hospital	As at 17 January 2024	74
A26	Various Allied Health recovery request	Various dates	127
A27	Various Certificates of Capacity	From 5 October 2022	160
A28	Claimant’s review reply submissions (see previously)	3 September 2024
A29	Operation report of Dr Gavin Soo	23 November 2023	202
A30	GP referral for ultrasound right shoulder	11 March 2023	204
A31	Allied Health recovery request (No. 3) for physiotherapy	12 April 2024	205
A32	Report of Dr Gavin Soo	13 May 2024	210

I saw Thomas in the rooms today now six months since I removed the hardware from his right clavicle. He tells me that a month after that surgery, he started developing pain to the right shoulder. He still gets headache and neck pain but he developed pain to the right shoulder that has stopped him from doing any exercise or training with the arm. The pain is anteriorly and radiates down the arm to the elbow. He also gets a “numbness” to the right elbow.

A33	Referral of Dr Gavin Soo for MRI of the right shoulder	13 May 2024	212
A34	MRI right shoulder report of Dr Ankur Srivastava	14 May 2024	213

FINDINGS

No discreet rotator cuff tendon tear or tendinosis. No intramuscular oedema or fatty atrophy of the rotator cuff muscles.

COMMENT

Mild subacromial/subdeltoid bursitis.

A35 Ultrasound guided injection of the right shoulder bursa report of Dr Anthony Logaraj 27 June 2024 215

CONCLUSION

Technically successful ultrasound guided right subacromial/subdeltoid bursa injection.

A36	Allied Health Recovery request (No. 4) for physiotherapy	7 August 2016
A37	Certificates of Capacity	13 February 2024 to 30 September 2024	221

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

   A1    Insurer’s review submissions dated 13 August 2024 (previously summarised).

   A2    Certificate of Medical Assessor Mohammed Assem dated 10 July 2024 (see previously).

   R1    Insurer’s impairment submissions dated 2 April 2024.

   R2    Application for Personal Injury Benefits dated 5 October 2022.

   R3    Application for common law damages dated 6 March 2023.

   R4    NSW Ambulance report dated 3 October 2023.

   R5    Liability notice – benefits up to 26 weeks dated 11 October 2022.

   R6    Reports of Dr Gavin Soo dated 19 October 2022, 21 October 2022 and
   31 October 2022 (see previously).

   R7    NSW Police report dated 12 October 2022.

   R8    Allied Heath Recovery request dated 3 December 2022.

   R9    Liability notice – benefits after 26 weeks dated 4 January 2023.

   R10  Liability notice claim for damages dated 30 May 2023.

   R11  Letter from Law Partners to Sparke Helmore Lawyers dated 2 November 2023 serving Dr Dixon’s report (see previously).

   R12  Clinical records from Dr Mark Navarro received on 14 December 2023.

   R13  Clinical records from Bond Junction 7 Day Medical Centre as at
   16 December 2023.

   A3    Report of Dr Stephen Rimmer, orthopaedic surgeon, dated 24 April 2024.

   Dr Rimmer was not provided with any radiological investigations or other diagnostic tests which, he said repeatedly, hampered his ability to undertake a proper assessment and report. Under the heading CURRENT SYMPTOMS, Dr Rimmer referred to pain in the cervical spine, right shoulder, lumbar spine and right knee, with weakness in the left thumb (pain free). Dr Rimmer notes that the claimant had two surgical procedures to his clavicle which was effective, necessary and reasonable.

   Dr Rimmer says there were gross inconsistencies in the claimant’s presentation. “At times, the history provided ordered on bizarre/illogical. For instance, he demonstrated a grossly restricted range of motion of the right shoulder and claims he did not know what was the cause, claims at no time he has been referred to a shoulder specialist, all of which I could not understand.”

   Dr Rimmer said that he could not provide an accurate diagnosis without the radiological investigations. Dr Rimmer apportions all of the claimant’s current disability to the motor accident. He comments that physiotherapy should cease effective immediately. He expresses no opinion regarding Dr Dixon’s opinion.

   A5    Procare Desktop Investigation report dated 28 August 2024.

   A6    Procare’s First Surveillance report dated 25 September 2024 together with surveillance footage.

   A7    Updated Desktop Investigation Report of Procare Group dated 6 February 2025.

EXAMINATION REPORT

1. The report of Medical Assessor David McGrath and Medical Assessor David Gorman is as follows:

Name:  Thomas Philben MALUCELLI

Date of Birth:  9 November 1986

Date of Accident:  3 October 2022         

Date of Examination:               12 February 2025

Impairment Assessment 9% WPI.

1.    Left Thumb 1% ROM methodology

2.    Right Shoulder 2% Analogy methodology. The examiners do not consider that impairment under ROM is reliable.

3.    Skin Scarring 1% Temski Table and principle of best fit

4.    Lumbar Spine 0% DRE classification

5.    Cervical Spine 5% DRE classification

6.    Right Knee 0% All methodologies considered.

1.     Pre-accident medical history and relevant personal details

Mr Malucelli is 38 years of age and single.  He emigrated from Tuscany, Italy at age 25.  In Italy, he learnt several languages and then entered the family restaurant business. 

On coming to Australia, he continued in the restaurant business, becoming a restaurant manager.  Following the motor vehicle accident, he was unable to continue with this occupation because of the physical nature of his work.  He has since migrated into becoming a personal health coach but is also thinking of going into real estate.

Mr Malucelli describes a strong interest in gymnasium attendance, marathons, swimming, cycling and jujitsu.  Since the accident, he has adapted all of these activities.  He describes his recreational interest as personal development.

Mr Malucelli was in a motorbike accident in around 2015 lacerating his right leg.  There were no other injuries.  As a child, he fractured his right ankle playing basketball.  A marble block fell on his left foot as a child splitting the plantar surface requiring minor surgery.  He had his appendix removed at age 12.

He does not describe any medical conditions.  He is a non-smoker and non-drinker.

2.     History of the motor accident

Mr Malucelli was involved in an MVA on 3 October 2022 at approximately 3.00pm.  He was riding his motorbike up an incline when a car traversed across his pathway leading to an unavoidable collision.  He was catapaulted over the bonnet and onto the road.  Bystanders assisted him, realising he was seriously hurt. 

3.     History of symptoms and treatment following the motor accident

He was taken by ambulance to St Vincent’s Hospital where he spent the next three days without any surgery.  A fractured right clavicle was diagnosed and other soft tissue injuries.

Mr Malucelli received left thumb surgery approximately a week after the accident at Kogarah Private Hospital. He received right shoulder surgery 2½ weeks later with plate and screws. The metallic hardware was later removed in a further procedure.

In addition to these more obvious injuries, he had a left calf haematoma, low back pain and neck pain.  He also states that he injured his right knee.

In addition to his surgeries, Mr Malucelli has been treated with physiotherapy and exercise physiology.  He has also sponsored his own exercise physiologist, being enthusiastic to recover. 

He records medications such as Nurofen 2 tablet 4 times per day.  He also takes the spray-on preparation Oki (NSAID) on an as needs basis. Mr Malucelli has also received two injections into the lumbar spine and one injection into the shoulder.

4.     Details of any relevant injuries or conditions sustained since the motor accident

None recorded

5.     Current symptoms

Mr Malucelli sketched out his pains onto a body diagram.  He stated that he had the following areas of pain and discomfort:

·     Right anterior shoulder

·     Right posterior neck

·     Central lower back pain

·     Right elbow discomfort

·     Right lateral knee discomfort

·     Scars and abrasions

6.     Current and proposed treatment

He self manages with an exercise coach.

7.     Examination

His height was measured at 189cm and weight 89.5kg. Normal BMI.

All of the listed injuries were examined in detail.

Cervical Spine

Mr Malucelli has a dysfunctional neck dynamic with one-fifth loss of left axial rotation.  Lateral flexion and flexion/extension were complete.  No muscle spasm or guarding was observed but he was tender to direct palpation.  He did not have any symptoms or signs consistent with non-verifiable radicular complaints.

A neurological examination was conducted.  He had normal deep tendon reflexes, power and sensation. Upper and lower arm circumference was measured at 33cm, 32.5cm and 30cm, 30.5cm for the left and right arms respectively.  There was no measurable atrophy.

He did not satisfy the criteria for radiculopathy.

Lumbar Spine

Mr Malucelli has a mildly restricted but symmetrical loss of range of motion of the lumbar spinal.  No muscle spasm or guarding was observed.  He did not have non-verifiable radicular complaints.

Neurological examination was normal.  That is, he had normal deep tendon reflexes, power and sensation. Straight leg raising was normal. Upper and lower leg circumference was measured at 49cm, 48cm and 39cm, 38.5cm for the right and left legs respectively.  He did not have any measurable atrophy.

He did not have radiculopathy.

Upper Extremity

He does have an assessable impairment from his clavicle fracture. We have assessed it under analogy, due to rom inconsistency. A healed fracture without deformity does not create an impairment.

Active range of motion of the shoulders was observed, measured by goniometer and tabulated below.

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	50-60°	180°
Extension	50°	50°
Adduction	40°	40°
Abduction	50-70°	170°
Internal Rotation	60-80°	80°
External Rotation	60°	60°

In essence, Mr Malucelli had a restricted variable range of motion of the right shoulder but this was pain-induced.  He had a normal passive range of motion of the right shoulder. There were no signs of muscle atrophy suggestive of non-use.

Active range of motion of the elbows was observed, measured by goniometer and tabulated below: 

Elbow Movements	Active ROM Measured RIGHT	UEI%	Active ROM Measured LEFT	UEI%
Flexion	140°	0%	140°	0%
Extension	0°	0%	0°	0%
Pronation	80°	0%	80°	0%
Supination	70°	0%	70°	0%
Combined UEI%	0%	0%

In essence, he had a normal range of motion of both elbows without restriction.

Active range of motion of the left thumb was observed, measured by goniometer and tabulated below: 

Thumb Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
CMC joint Radial abduction Adduction Opposition MP joint Flexion Extension IP joint Flexion Extension	50° 8cm 8cm 60° 0° 80° 10°	50° 8cm 6cm 60° 0° 80° 10°

In essence, there was a small loss of range of opposition. These observations are comparable with Medical Assessor Assem’s findings. The panels adopt the view that the current ROM findings are a correct and valid means of assessing thumb impairment and is preferable over a diagnosis related impairment under 3.1m of AMA4 guidelines and 1.65 of NSW guidelines.

Lower Extremity

There is no residual impairment or positive clinical observations of either buttock or thigh. All visible skin scars were examined and assessed under Temski Table (see below)

Active range of motion of the knees was observed, measured by goniometer and tabulated below: 

Knee Movements	Active ROM Measured RIGHT	LEI%	Active ROM Measured LEFT	LEI%
Flexion	120°	0%	120°	0%
Extension	0°	0%	0°	0%
Combined LEI%	0%	0%

In essence, he had a normal range of knee movements.  Passive examination of the right knee revealed he was tender along the lateral aspect of the joint line consistent with a probable soft tissue injury. There was a concomitant scar. There was no collateral ligament laxity with passive examination.

8.     Skin Scarring (TEMSKI) 

Mr Malucelli had multiple small scars both as a result of his two surgeries and road abrasions.  During the accident, he was only wearing light clothing consistent with the summer period. 

The largest surgical scar was at the right clavicle which measured 7cm.  There was no adherence and no contour defect.  The scar itself was pale and visible with some minor suture marks. There was a small 2.5cm hardly visible scar over the dorsal aspect of the left thumb consistent with surgery. There was a small punctate scar about the lateral aspect of the right knee joint. There was a 1cm x 2cm barely visible scar over the lateral aspect of the right elbow.

There is no residual scar about either buttock and thigh.

The totality of these scars is estimated under the “best fit” principle at 1% WPI

With respect to TEMSKI criteria:

·     He is conscious of scarring

·     There is average colour matching

·     There are no trophic changes

·     Suture marks are barely visible

·     Location is not clearly visible (by others) with usual clothing

·     He is able to easily locate the scars (visibility by self-looking)

·     Minor contour effects

·     No effect on any ADL

·     No treatment is required

·     No adherence

9.     Investigations

No investigations were brought to the examination.

10.   Consistency

Mr Malucelli was asked about the Desktop Investigation Report purporting to show full capacity. He stated that many of the pictures were taken from his photographic archive, and are not a true representation of his capacity or residual injuries. He stated they were taken on a good day or when he was medicated.

However, although some of the pictures the Medical Assessors showed him were undated, there are some where it is clear he has far greater range of movement in his right shoulder than he demonstrated. There is one picture on page 25 of the Insurers Desktop Investigation Report of him fully abducting the arm to at least 170 degrees with the superimposed words “I’m 38…” – this is his current age and clearly taken after the accident.

The Medical Assessors also noted the surveillance material. In the picture dated 6 September 2024 in the Procare Report on page 10 dated 25 September 2024 (see page 228 of the insurers bundle). There he is fully abducting the right arm to 180 degrees while lying down on the beach.

He accepted that restricted right shoulder movement was pain induced.

11.   General Assessment (Diagnosis and Cause)

Mr Malucelli was involved in an MVA on 3 October 2022.  In the accident, his motorbike collided with a car and he was catapulted onto the road sustaining multiple soft tissue injuries, abrasions and a collar bone fracture.  His most serious injury was a fracture of the right collarbone and damage to the ulnar collateral ligament of the left thumb.  He also sustained soft tissue injuries to the spine, right knee and right elbow.

12.   Impairment Assessment

Body Part or System	AMA Guides/ Guidelines References (chapter/ page/table)	Permanent (YES/NO)	Current %WPI*	%WPI* from pre-existing OR subsequent causes	%WPI* due to motor accident
Cervical Spine	MAPIG p26-36 T7 p27 AMA4 T73 p103-105	YES	5%	0%	5%
Lumbar spine	MAPIG p26-36 T7 p27 AMA4 T72 p102-103	YES	0%	0%	0%
Right Upper Extremity Shoulder	MAPIG p13-16 AMA4 Chap 3.1	YES	2%	0%	2%
Left Upper Extremity Thumb	MAPIG p13-16 AMA4 Chap 3.1	YES	1%	0%	1%
Right Lower Extremity Knee	MAPIG p16-22 AMA4 Chap 3.2 T62 p83 Dagger Footnote	YES	0%	0%	0%
Skin Scarring Multiple	MAPIG p57-59 T18 TEMSKI AMA4 T2 p280	YES	1%	0%	1%

WPI whole person impairment

1.      Skin impairments are calculated from TEMSKI table and principle of best fit.

2.      Spinal impairment is from DRE classification.

3.      The right shoulder impairment cannot be assessed using range of motion methodology as in the examiner’s opinion the active range was restricted by pain and not a structural fault. (para 1.50.3 and 1.50.4 and 1.50.5 and 1.40 and 1.41). A consistent range of movement could not be obtained during the examination. Previous inconsistencies were also brought to the injured persons attention.

The impairment is rated instead by analogy using damage to the AC joint. Comparing mild synovial hypertrophy T20 p59 andT18 p58. (10% maximum is 2.5% UEI rounding up to 2% WPI)

4.      Left thumb has some loss of opposition (2cm) which equates to 3% thumb, 1% hand,1% UEI, 1% WPI. (T7 p29)

Apportionment

All of the calculated impairment is the outcome of the MVA.

Pre-existing/subsequent impairment

No adjustments are indicated.

Effects of treatment

No adjustments are indicated.

FINDINGS

1. The Review Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[6] The Review Panel adopts the examination findings and reasons of Medical Assessor McGrath and Medical Assessor Gorman. The Review Panel is not required to choose between competing medical opinions and is required to form its own opinion.[7]

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

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

2. The Medical Assessors noted the inconsistencies between the range of right shoulder movements recorded by Medical Assessor Assem on 10 July 2024 and Dr Dixon on
   19 September 2023 – for example Medical Assessor Assem noted external rotation of
   30 degrees while Dr Dixon noted external rotation of 80 degrees.

3. The Panel also notes that Dr Dixon and Medical Assessor Assem did not have the benefit of the surveillance and Desktop Investigation report. They therefore did not have the opportunity to challenge Mr Philbin-Malucelli as to the inconsistencies seen.

4. The Medical Assessors have explained the bases for their assessments which are different from those of Medical Assessor Assem and Dr Dixon, noting that Dr Rimmer was not able to make an assessment, due to the lack of primary diagnostic evidence. The medical assessment of permanent impairment is made at the time of the examination. In that respect, the previous assessments are somewhat outdated, and do not reflect current symptomatology.

CONCLUSION

1. For the above reasons, the Review Panel concludes that the certificate issued by Medical Assessor Assem on 10 July 2024 should be revoked. The new certificate appears at the commencement of these reasons.