QBE Insurance (Australia) Limited v Eldahoud
[2025] NSWPICMP 18
•8 January 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | QBE Insurance (Australia) Limited v Eldahoud [2025] NSWPICMP 18 |
CLAIMANT: | Fatemah Eldahoud |
INSURER: | QBE |
REVIEW PANEL | |
MEMBER: | Nolan |
MEDICAL ASSESSOR: | Assem |
MEDICAL ASSESSOR: | Moloney |
DATE OF DECISION: | 8 January 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; physical injuries; review of Medical Assessment Certificate under section 7.23(1); whether multiple injuries caused by a motor accident resulted in permanent impairment greater than 10%; claimant alleged injuries to cervical, thoracic, and lumbar spine; bilateral shoulders, hips, and knees, and right wrist; assessment of causation and degree of permanent impairment considering pre-existing degenerative conditions; Panel found soft tissue injuries to the cervical, thoracic, and lumbar spine, hips, knees, and right wrist were caused by the motor accident; bilateral shoulder symptoms found unrelated to the motor accident; Held – claimant’s injuries caused by the accident resulted in a total permanent impairment of 5%, below the statutory threshold for non-economic loss compensation. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Assessment of Degree of Permanent Impairment Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate of Medical Assessor Home dated 2 August 2022 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment which, in total, is not greater than 10% (5%): (a) cervical spine – soft tissue injury – 0%; (b) lumbar spine – soft tissue injury – 5%; (c) thoracic spine – soft tissue injury – 0%; (d) hips – bilateral soft tissue injury– 0%, and (e) knees – bilateral soft tissue injury– 0%. 2. The following injury was not caused by the motor accident and do not give rise to whole person impairment: (a) shoulders – bilateral soft tissue injury. |
STATEMENT OF REASONS
INTRODUCTION
Fatemah Eldahoud, the claimant, claims that she sustained multiple injuries in a motor accident on 5 August 2019, when her vehicle was struck on the passenger side while travelling along Richmond Road (the motor accident).
The claimant's statement dated 13 September 2019 describes her account of the motor accident. The claimant stated that as she approached the intersection, a silver sedan suddenly pulled out from the left, leaving her no time to react. She could not recall further details leading up to the collision.
The impact was described as severe, with her car coming to a stop on the road. Her airbags did not deploy, and she was in significant shock. The claimant noted damage to the front and left-hand side of her car and observed that the other vehicle was also damaged, though she did not see whether it collided with another vehicle. The police later informed her that it had. Two ambulances arrived at the scene to assist her, and the police conducted a breath test, which returned a negative result. The claimant reported experiencing immediate neck pain, wrist pain, and knee pain as her body collided with the steering wheel and dashboard. While police and ambulance services attended the scene, she declined hospital transfer and sought medical attention from her general practitioner the following day.
The claimant asserts that, as a result of the motor accident, she sustained a range of injuries. These included a discal and muscular injury to the neck and cervical spine, which was accompanied by radiculopathy in the upper limbs. The claimant further claimed she suffered a discal and muscular injury to the mid-back or thoracic spine. Regarding the lower back or lumbar spine, the claimant alleged she experienced a discal and muscular injury with radiculopathy extending to the lower limbs, as well as an aggravation of a pre-existing symptomatic condition. Additionally, she claimed to have sustained a soft tissue injury to the right wrist and hand, as well as a soft tissue injury to the head. The claimant also claimed she suffered a posterior vitreous detachment of the right eye. Injuries claimed to her right and left shoulders were described as rotator cuff damage involving muscular and tendon injury, while both knees were alleged to have been affected by muscle and tendon injuries. She further stated that the pelvis and hips sustained soft tissue damage. Finally, the claimant claimed she suffered psychological injuries, including post-traumatic stress disorder, depression, and anxiety.
MEDICAL DISPUTE
On 2 September 2019, the claimant lodged an Application for personal injury benefits against QBE Insurance (the insurer).
On 21 January 2020, the insurer issued a liability notice denying the claim, asserting that the claimant’s injuries were minor (now, threshold injuries) within the meaning of the Motor Accident Injuries Act 2017 (the Act). Following this decision, the claimant lodged an internal review application on 5 February 2020, challenging the classification of her injuries. However, the insurer upheld its original decision, maintaining that the injuries were threshold injuries.
Subsequently, the matter was referred to the Personal Injury Commission (the Commission).
On 28 October 2020, Medical Assessor Michael Steiner conducted an assessment of the claimant’s eye injury, specifically the posterior vitreous detachment of the right eye, and determined that while the injury was minor, it amounted to a 5% impairment of the right eye.
On 2 November 2021, Medical Assessor Melisa Barrett assessed the claimant’s psychological injuries and determined that she sustained a non-threshold psychological injury, including post-traumatic stress disorder attributable to the motor accident.
On 15 October 2020, Medical Assessor Michael Gliksman assessed the claimant’s physical injuries, finding them to be threshold injuries.
Based on these findings, the insurer issued a revised liability notice, accepting that the claimant had sustained a non-threshold injury. However, the insurer subsequently lodged a Further Assessment Application with the Commission on 4 January 2021, arguing that additional information had become available which could materially affect the earlier determinations regarding the classification of the claimant’s injuries. Upon review, the Commission, through its delegate, determined on 16 June 2021 that the new information would not materially alter the outcome of prior assessments and dismissed the insurer’s application.
On 7 April 2021, the claimant lodged an application for common law damages.
On 14 September 2021, the insurer accepted liability for the common law damages claim but disputed the claimant’s entitlement to damages for non-economic loss. The insurer highlighted the claimant’s pre-accident medical history, which included longstanding back issues and other conditions, as follows:
(a) on 11 August 2014, the claimant underwent a CT scan of the lumbosacral spine due to back pain radiating to the groin. This scan revealed pars defects at L5 vertebra, degenerative changes at the uncovertebral joints and facet joints across multiple levels, and disc protrusions from L3/4 to L5/S1.
(b) Similarly, on 11 September 2014, a whole-body scan documented a 15-year history of lower thoracic and lumbosacral spine pain, as well as pain in the hips and shoulders. The scan identified active facet joint arthritis in the lumbar spine, most prominently at the right L2/3 level, and degenerative changes in the thoracic spine with active uptake in the left T7/8 and T8/9 facet joints.
(c) On 2 February 2016, the claimant consulted her general practitioner regarding depression, while on 12 July 2016, she sought treatment for insomnia.
(d) On 25 October 2016, she again presented with generalised pain complaints and was prescribed pain relief medications.
(e) On 20 January 2017, she consulted her general practitioner about knee pain, ankle pain, insomnia, and depression, and on 23 May 2017, she returned for diagnostic imaging and further evaluation of abdominal pain.
(f) On 30 October 2018, the claimant was referred for a CT scan of the thoracic and lumbar spine for chronic back pain. The report described severe facet joint arthropathy at T8/9, shallow disc protrusions at T9/10 and T11/12, and grade 1 isthmic spondylolisthesis at L5/S1. This was followed by a CT-guided left T8/9 facet joint injection on 7 November 2018 and a corticosteroid injection at L3/4 on 19 November 2018. On 7 December 2018, she sought further treatment for back pain.
(g) Additionally, handwritten medical records from 19 February 2019 referenced severe anxiety and knee pain.
(h) On 18 March 2019, X-rays and ultrasounds of the right knee identified osteoarthritis of the medial tibiofemoral compartment, with minor scarring of the MCL.
The insurer submitted that, collectively, these records illustrate a history of degenerative and chronic pain conditions pre-dating the motor accident.
The insurer maintained that the claimant’s injuries did not exceed 10% whole person impairment (WPI), as required under the Act for non-economic loss claims giving rise to dispute as to a medical assessment matter under Schedule 2, cl 2 (a) of the Act (the medical assessment matter).
MEDICAL ASSESSMENT
The medical assessment matter was referred to Medical Assessor Alan Home (the Medical Assessor), who issued a certificate on 2 August 2022, which concluded that the claimant’s injuries collectively resulted in a permanent impairment of exactly 10%, not exceeding the statutory threshold (the MAC).
The Medical Assessor’s findings included soft tissue injuries to the cervical spine and right wrist, resolved soft tissue injury to the head, local contusions to the right and left knees, soft tissue injuries to the pelvis, hips, and shoulders (being referred pain from the cervical spine), and soft tissue injury to the mid-back. He also noted the lumbar spine condition as an aggravation of pre-existing spondylolisthesis. Subsequently, a combined certificate was issued on 31 January 2023, though it clarified that certain injuries, such as those involving the eyes, were not yet considered permanent and therefore not assessed for permanent impairment.
The Medical Assessor recorded that the claimant’s medical history before the motor accident included intermittent lower back pain managed with analgesia, occasional right knee pain following a fall earlier in 2019, and known degenerative spinal conditions, including spondylolisthesis and facet joint arthritis. Imaging studies conducted before the motor accident documented degenerative changes across multiple levels of the thoracic and lumbar spine, including disc protrusions and foraminal stenosis.
The Medical Assessor recorded that claimant described post-accident symptoms that included persistent pain and limited mobility in her neck, back, shoulders, wrists, hips, and knees. She reported increased pain with activities such as sitting, standing, and walking for prolonged periods. These limitations, along with chronic pain, disrupted her ability to perform daily tasks, including cooking, cleaning, and gardening, and resulted in her cessation of work. She also reported psychological symptoms, including post-traumatic stress, anxiety, and depression, which required ongoing psychological and psychiatric treatment.
Upon the physical examination, the Medical Assessor noted a restricted range of motion in the cervical and lumbar spine, shoulders, and hips. No muscle wasting, neurological deficits, or joint instability were observed. The claimant exhibited normal spinal curvature, and no muscle spasm was detected, although there was evidence of muscle guarding during lumbar extension. Neurological examinations of the upper and lower extremities were unremarkable, showing normal power, sensibility, and reflexes. Active range of motion tests for the shoulders, hips, and knees revealed modest limitations but no severe deficits.
In reviewing the claimant’s medical records, the Medical Assessor analysed pre-and post-accident imaging studies. These revealed pre-existing degenerative changes in the spine and hips that predated the motor accident, including disc protrusions, osteoarthritic changes, and bilateral pars defects. Post-accident imaging identified soft tissue injuries, including cervical lordosis and bilateral hip bursitis, but no acute fractures or structural abnormalities directly attributable to the motor accident. The claimant’s treatment history included chiropractic care, osteopathy, and physiotherapy, but these provided only transient relief of symptoms.
The Medical Assessor evaluated the permanent impairment caused by the motor accident in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) (the Guides) and the Motor Accident Permanent Impairment Guidelines (the Guidelines). The cervical and thoracic spine injuries, right wrist, knees, and hips were assigned a 0% WPI. The lumbar spine was rated at 5% WPI, attributed to an aggravation of pre-existing degenerative changes. The shoulders contributed an additional 5% WPI collectively, based on modest restrictions in range of motion. The total WPI was calculated at 10%.
The Medical Assessor also addressed the causation and reasonableness of ongoing treatment. It was determined that while osteopathic treatments for the cervical spine and hips were related to injuries caused by the motor accident, they were not reasonable or necessary. The claimant’s symptoms persisted despite extensive conservative treatment, and no evidence suggested durable benefits from continued osteopathy. Instead, home-based exercise was recommended as a more effective and sustainable approach.
The Medical Assessor’s findings concluded that the claimant’s injuries caused by the motor accident resulted in a permanent impairment of 10%, meeting but not exceeding the statutory threshold for compensation for non-economic loss.
APPLICATION FOR REVIEW
The insurer challenged the MAC by an application for review, which contended that the Medical Assessor had failed to provide adequate reasoning for his conclusions, particularly with respect to the lumbar spine impairment. Specifically, the insurer argued that the radiological evidence documenting pre-accident spondylolisthesis had not been sufficiently analysed. It claimed that the Medical Assessor provide adequate reasons to identify the path of reasoning as to why he determined the pre-existing evidence was insufficient to determine that an impairment would arise in excess of diagnosis-related estimate (DRE) Lumbar Spine Category 1 prior to the accident.
The claimant opposed the insurer’s application for review. She maintained that the original assessment was accurate and supported by the evidence, addressing the points raised by the insurer but ultimately arguing that no material error existed to justify a reassessment.
The President’s delegate of the Commission reviewed the application under s 7.26 of the Act, which allows for a review if there is reasonable cause to suspect the original assessment was materially incorrect. After considering the application, response, and supporting documentation, as well as the Medical Assessor’s certificates and reasons, the delegate determined there was reasonable cause to suspect that the medical assessment was materially incorrect. The delegate specifically noted that the Medical Assessor had not given adequate reasons for why the evidence was not sufficient to assess pre-existing impairment in excess of DRE Lumbar Spine Category 1 having regard to the radiological scans evidencing pre-accident spondylolisthesis.
The delegate accepted the insurer’s application for review and referred the matter to the Review Panel, presently constituted (the Panel).
REVIEW PROCEDURE
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission. Accordingly, the President’s delegate referred the matter to this Panel to assess.
Part 5 of 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.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (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.
The review is by way of a new assessment of all matters with which the medical assessment is concerned. However, s 7.25 of the Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
The Panel issued Directions to the parties dated 14 July 2023 directing the provision of an agreed joint bundle of material on the review. The parties complied with that direction. The Panel has considered extensively the material provided by the parties. Following is a summary of the material relevant to the review.
MATERIAL BEFORE THE PANEL ON REVIEW
Pre-accident
A CT scan report of the claimant’s lumbosacral spine, dated 11 August 2014, was conducted to investigate low back pain radiating to the groin. The scan demonstrated mild degenerative changes at the intervertebral joints from L1 to S1 and the facet joints at L4/5 and L5/S1. Pars defects were identified at the L5 vertebra. Additionally, a mild posterior central disc protrusion at L3/4 and a mild posterior central and paracentral disc protrusion at L4/5 and L5/S1 were noted.
There was no evidence of central canal stenosis or neural foraminal stenosis. The scan also showed no significant abnormalities apart from these findings. The report concluded that the degenerative changes, pars defects, and disc protrusions were the primary contributors to the claimant’s symptoms, with no acute abnormalities identified.
A whole-body bone scan with SPECT CT, conducted on 11 September 2014, was performed to evaluate the claimant’s long-standing lower thoracic and lumbosacral back pain, which had persisted for 15 years, along with bilateral hip pain. The scan confirmed pars defects at the L5 vertebra, degenerative changes at multiple levels, and disc protrusions in the lumbosacral spine, consistent with findings from a prior CT scan. SPECT imaging demonstrated increased tracer uptake in the facet joints at the L2/3, L4/5, and L5/S1 levels, indicating active arthritis. Moderate to high-grade uptake was observed in the right L4/5 facet joint, with low-grade uptake bilaterally at L5/S1. Additionally, moderate uptake in the left T7/8 facet joint was indicative of degenerative or osteoarthritic changes. Minor degenerative changes were also noted in the humeral heads and shoulders. The report concluded that the claimant exhibited active facet joint arthritis in the lumbar spine and suggested CT-guided injections as a potential treatment option for the identified areas, including the left T7/8 facet joint if symptoms persisted.
Additionally, a thyroid ultrasound revealed that the claimant had undergone a previous right hemithyroidectomy. The residual left thyroid lobe was found to be diffusely enlarged, measuring 27cc in volume, with multiple nodules ranging in size from 6mm to 18mm in diameter. The gland parenchyma appeared heterogeneous in texture but demonstrated normal vascularity. No lymphadenopathy was observed on either side of the neck. The findings were consistent with a diffusely enlarged left thyroid lobe containing multiple nodules, a common post-surgical outcome, with no evidence of lymphatic or malignant involvement.
The CT scan of the thoracic and lumbar spine, conducted on 30 October 2018, evaluated the claimant’s chronic back pain. The imaging revealed significant findings across multiple regions.
In the thoracic spine, anterior wedging of the T11 and T12 vertebral bodies was observed, indicating longstanding mild compression fractures. There was shallow disc bulging at the T10/11 and T11/12 levels, with mild spinal canal narrowing. No focal disc protrusions or spinal canal stenosis were detected at T12/L1.
The lumbar spine showed grade 1 isthmic spondylolisthesis at L5/S1 with pars defects, severe facet joint arthropathy, and mild narrowing of the intervertebral disc at this level. The L1/2 and L2/3 levels exhibited disc bulging without protrusion and severe hypertrophic facet joint arthropathy. At L3/4, shallow disc bulging abutted the exiting left L3 nerve root, with mild foraminal stenosis. At L4/5, posterior disc bulging flattened the ventral thecal sac, causing mild foraminal narrowing and abutting the exiting left L4 nerve. At L5/S1, mild narrowing of the intervertebral disc was present, alongside severe bilateral facet joint arthropathy and likely bilateral foraminal stenosis, causing potential irritation to the L3, L4, and L5 nerve roots.
The thoracic spine findings likely resulted from severe left T8/9 facet joint arthropathy and disc protrusion at T9/10, with a shallow disc bulge more prominent on the left at T10/11 and T11/12. The overall findings indicated severe degenerative changes, especially at the lumbar levels, with significant implications for neural involvement.
A report dated 7 November 2018 describes a CT-guided left T8/9 facet joint injection performed to address the claimant’s ongoing thoracic spine pain. The injection targeted the left T8/9 facet joint, with 1ml of 4mg Dexamethasone and 1ml of 1% Lignocaine administered. The procedure was successfully completed under CT guidance.
A report dated 19 November 2018 describes a CT-guided epidural corticosteroid injection at the L3/4 level performed to address the claimant’s lower back pain. The procedure was conducted under CT guidance using aseptic technique. After local infiltration with Lignocaine, a spinal needle was inserted into the epidural space at the L3/4 level. A mixture of 4mg Dexamethasone and 1ml of 1% Lignocaine was administered.
An X-ray and ultrasound of the claimant’s right knee, conducted on 18 March 2019, were performed to evaluate persistent soreness. The X-ray findings indicated early marginal lipping of the medial femoral and tibial condyles, with the joint space preserved and articular surfaces appearing smooth. The patellofemoral joint was normal, with no intra-articular loose body or effusion detected.
The ultrasound findings revealed moderate thickening of the medial collateral ligament (MCL) related to the anterior tibial insertion and posterior oblique ligament, consistent with mild pes anserine bursitis. Additionally, minor medial extravasation of fluid in the MCL was observed. The report concluded that the claimant’s knee pain was likely due to evolving osteoarthritis of the medial tibiofemoral compartment, with minor scarring of the MCL. No significant effusion or structural abnormalities were present.
Post accident
The ambulance report recorded that the claimant was seated in the driver’s seat of her vehicle and appeared warm, alert, and well, with a Glasgow Coma Scale (GCS) score of 15. She was crying and emotional but reluctant to undergo an examination. Despite strong advice to be transported to a hospital for further assessment, she declined.
Upon examination at the scene, there were no indications of significant injuries. The claimant had no head strike or loss of consciousness and denied neck or spinal tenderness, as well as pain to her arms and legs. No visible deformities, chest pain, or breathing difficulties were noted. The examination revealed some knee pain when weight-bearing, mild discomfort in the right shoulder, and minor tenderness on the left knee.
The claimant was educated on the potential effects of her injuries and advised to seek further medical attention if her condition worsened. She was taken home by her husband and monitored overnight. No immediate hospital transport was undertaken. Paramedics attended and provided analgesics for pain relief.
The handwritten notes dated 6 August 2019 from the claimant’s general practitioner documented the claimant’s initial medical assessment following a motor accident that occurred on Northern Road at approximately 3.15pm. The claimant was struck on the passenger side, resulting in heavy damage to the car. Post-accident, the claimant reported significant neck pain, twisted body discomfort, and pain in both hips, knees, lower abdomen, and pelvis. Tenderness and soft tissue injuries were noted in these areas. The claimant also described a mild headache and blurred vision but displayed no neurological defects. While slightly dazed, there was no evidence of head trauma. She expressed shock and difficulty sleeping following the motor accident. The physician advised relaxation techniques to improve sleep and prescribed pain relief medication. The notes also mention the claimant’s history of post-gastric sleeve surgery and fundoplication, alongside regular monitoring of her blood pressure. Recommendations included further eye assessments if needed.
The X-rays dated 24 August 2019 evaluated the claimant’s cervical spine, bilateral hips, bilateral knees, and right wrist following her motor accident.
The cervical spine X-ray revealed a loss of normal cervical lordosis, suggesting muscle spasm. There was no evidence of significant facet joint hypertrophy, fractures, or misalignment, but some degenerative changes were noted, including reduced intervertebral disc spacing. No foraminal or canal stenosis was identified.
The bilateral hip X-rays showed normal alignment and joint spacing with no fractures, bony avulsions, or significant calcification. A well-circumscribed bony focus from the right ilium was noted, interpreted as a benign congenital finding.
The bilateral knee X-rays identified mild medial compartmental joint space loss but preserved joint spacing elsewhere. No fractures, misalignments, or soft tissue abnormalities were observed.
The right wrist X-ray showed normal bony alignment without fractures or degenerative changes, though a small focal calcification at the ulnar styloid process was noted, possibly related to a triangular fibrocartilage complex (TFCC) pathology.
Overall, the imaging indicated mild degenerative changes in the cervical spine, hips, and knees, with no acute fractures or significant abnormalities elsewhere.
On 23 August 2019, the claimant’s general practitioner documented the ongoing symptoms and challenges faced by the claimant following motor accident. The claimant reported feeling very tired, stiff, and unwell, with difficulty walking due to pain in her neck and lower limbs. She experienced blurred vision but no headaches. The claimant also noted upset stomach symptoms attributed to medication, which she was advised to continue taking. Further eye assessments were recommended.
On 24 September 2019, the claimant reported severe insomnia and driving phobia. She expressed fear not only while driving but also as a passenger, becoming anxious when riding with others and requesting slower driving. These symptoms were noted to exacerbate her anxiety. The claimant was referred to a psychologist for assistance with her phobia, anxiety, and insomnia.
On 27 September 2019, the claimant reported feeling very tired with worsening pain in her hips, back, neck, and wrists, along with severe phobias and anxiety. An urgent referral to a psychologist was recommended.
On 22 October 2019, the claimant complained of headaches, neck pain, and back pain. Anxiety appeared prominent, and she reported feeling low. She was advised to continue counselling and follow prescribed medications.
By 29 October 2019, the claimant’s medications were reviewed, and further imaging (ultrasound) was ordered. A referral to a psychologist was emphasised, pending approval, to address her persistent anxiety and related symptoms.
The report by David Jeffries dated 11 October 2019, details the assessment of the claimant following the motor accident. The claimant described being struck on the passenger side by another car, causing her head to hit the dashboard. Although she reported pain in her neck and a mild headache at the scene, she declined hospital transport and sought medical attention two days later due to worsening symptoms. She experienced persistent neck pain and stiffness radiating into her shoulders and thoracic spine, as well as numbness in her hands. X-rays of the cervical spine were performed but were unremarkable. The claimant reported managing her symptoms with Panadol and Nurofen.
The report notes that the claimant’s mood was severely affected by the motor accident, resulting in significant anxiety and a reluctance to drive. She also reported poor sleep, nightmares, and continued pain upon waking. During the examination, tension was observed in the trapezius muscles with reduced cervical spine mobility. Palpation revealed pain in the paraspinal and central neck regions. Neurological examination was normal. The claimant was diagnosed with Whiplash Associated Disorder (Grade II) and low mood with anxiety. She was advised to commence a home exercise program to improve her mobility and avoid prolonged static positions or repetitive activities involving the neck and cervical spine.
The handwritten notes from the clinical file of the claimant’s chiropractor dated 1 November 2019 detail the claimant’s ongoing symptoms following the motor accident. The claimant reported persistent neck pain rated at 7/10 and lower back pain rated at 8/10, both described as constant aches. Numbness was noted in the right hand, exacerbated by resistance-based exercises. For the lower back, the claimant described aching sensations extending to the legs but denied any numbness or tingling in the area. The notes also mention shoulder pain with limited range of motion during flexion and abduction, causing increased discomfort with movement. Observations include tension in the neck and upper trapezius muscles, as well as tightness in the quadriceps and gluteal muscles. These symptoms suggest ongoing musculoskeletal impairments related to the accident.
On 8 November 2019, the claimant reported persistent pain in her neck, lower back, and right shoulder. She described her neck pain as a constant ache rated 7/10 and lower back pain as an 8/10 ache. Numbness was noted in her right hand, exacerbated by certain exercises. Mobilisations targeted the cervical, thoracic, sacroiliac, and upper trapezius regions, with recommendations for heat, water, and walking to manage symptoms.
On 12 November 2019, she noted that her symptoms were consistent, particularly the numbness in her right hand and persistent headaches. Treatment continued with gentle mobilisations in the same areas, focusing on providing relief.
By 15 November 2019, she reported that her neck pain and headaches had worsened, describing her neck as particularly stiff. Mobilisations and soft tissue work targeting her lower back, sacroiliac joints, glutes, and upper trapezius were applied, along with continued recommendations for ice and walking.
On 19 November 2019, the claimant stated she was feeling slightly better, though she continued to experience pain in her neck, lower back, and right hand. Treatment included mobilisation of her cervical, thoracic, sacroiliac, and gluteal regions, with ice applied to manage discomfort.
On 22 November 2019, the claimant reported worsening lower back pain but noted her neck was feeling slightly better. She continued to experience pain in her sacroiliac joints, glutes, and other areas targeted during mobilisation.
On 26 November 2019, her neck pain remained severe, with her headaches particularly bad that morning. Mobilisations and soft tissue therapy were focused on her sacroiliac joints, glutes, and iliotibial bands, along with exercises and heat applications to alleviate symptoms.
By 29 November 2019, the claimant described continued lower back pain and knee discomfort, noting that the first two exercises prescribed were painful. Mobilisation efforts remained targeted at similar regions, with heat suggested for relief.
On 3 December 2019, she reported worsening neck and lower back pain, rating the pain as 8/10 for her neck and 6–7/10 for her lower back. Numbness persisted in her right hand, and mobilisations were again focused on her cervical, thoracic, sacroiliac, and gluteal areas, with continued advice for heat application.
On 6 December 2019, her hip pain was noted as particularly severe, with treatment focusing on mobilisation of her glutes, sacroiliac joints, and iliotibial bands.
By 10 December 2019, the claimant reported pain in both hips and her right big toe. Mobilisations and soft tissue therapy targeted her glutes and iliotibial bands, while prone mobilisation techniques were introduced.
On 13 December 2019, she described ongoing pain in her hips and big toe, with treatment similar to previous sessions.
On 17 December 2019, her hip and knee pain persisted, and she continued to experience discomfort in her sacroiliac joints, glutes, and iliotibial bands. Exercises were recommended to improve strength and reduce pain.
On 20 December 2019, she stated that her legs had been very sore for the past two days, with treatment again focusing on her glutes, iliotibial bands, and sacroiliac joints. By 7 January 2020, she noted that she had not performed exercises for a while but intended to resume them. She continued to experience hip pain, which was treated with mobilisations and soft tissue therapy targeting her glutes, hamstrings, and iliotibial bands.
On 14 January 2020, the claimant described persistent leg and hip pain but reported slight relief after visiting hot springs and spas. Mobilisations continued to target her glutes, hamstrings, and iliotibial bands.
By 21 January 2020, she reported sharp, constant pain in her left leg, which extended from her buttocks down to her knee. She also noted difficulty sleeping due to the discomfort. Treatment focused on her sacroiliac joints, glutes, and iliotibial bands.
On 28 January 2020, she continued to experience left leg pain and discomfort in her neck. Mobilisations and soft tissue therapy targeted her glutes and sacroiliac joints.
On 31 January 2020, her right shoulder pain persisted but showed slight improvement. Mobilisations targeted her cervical and thoracic spine, glutes, and iliotibial bands.
By 4 February 2020, her shoulder was feeling better, though she continued to experience leg and neck pain. Mobilisation efforts targeted her glutes, hamstrings, and iliotibial bands.
On 7 February 2020, she reported soreness in her leg and shoulder. The claim for her treatment ceased on this date, marking six months since the motor accident, with further sessions requiring approval.
The Allied Health Recovery Request (AHRR) for chiropractic treatment dated 21 January 2020 for the claimant, outlines her recovery plan and clinical management following the motor accident. The claimant’s diagnosis included neck pain, back pain, shoulder pain, wrist pain, and leg pain. Symptoms include a persistent ache in the neck that worsens with movement and radiates to the upper trapezius muscles. Limited range of motion and tenderness in the cervical spine are accompanied by occasional headaches. The lower back pain is described as constant and achy, worsening with movement or lifting, and radiating to the right leg. Additionally, the claimant experiences bilateral shoulder pain, described as aching and aggravated by movement. Reduced range of motion with associated pain is documented across the cervical spine, lumbar spine, and shoulders.
The X-rays and ultrasounds of both hips and the pelvis report dated 22 September 2020, noted a clinical history of hip pain while walking and climbing stairs, with a query for bilateral hip bursitis.
The ultrasound of both hips revealed mild degenerative changes. On the right side, findings suggested mild iliopsoas bursitis, with gluteus minimus and medius tendinopathy exhibiting partial-thickness tears (17 x 13mm in the gluteus minimus and 15 x 13mm in the gluteus medius tendons). There was mild thickening of the trochanteric bursa with associated pain on probe pressure. On the left side, similar mild degenerative changes were observed, along with partial-thickness tears in the gluteus minimus (10 x 9mm). Mild thickening of the trochanteric bursa was also noted.
The X-ray findings demonstrated mild bilateral hip joint arthropathy with no fractures, dislocations, or destructive bone lesions. Mild degenerative changes in the sacroiliac joints and the lumbosacral junction were identified. A surgical clip was observed in the right iliac fossa. Overall, the findings confirmed evidence of bilateral trochanteric bursitis, mild degenerative changes in the hip joints, and gluteus tendinopathy bilaterally.
Dr Sam Perla, occupational therapist, in a report dated 27 April 2021 recorded his examination of the claimant’s medical history, the circumstances of the motor accident, her current symptoms, diagnostic imaging, treatment history, prognosis, and WPI.
The claimant reported experiencing a prior motor vehicle accident approximately 25 years ago, although she could not recall specific details. She also had a history of depression diagnosed 27 years ago, which resolved following treatment. Eight years ago, she underwent a stomach sleeve operation and attended counselling for marital issues, which resulted in a positive outcome. She denied any prior significant injuries to her neck, back, or lower limbs.
The claimant described the motor accident, stating that another vehicle collided with the passenger side of her 4WD Toyota, causing her to be thrown forward and strike her head on the dashboard. She reported experiencing immediate discomfort, including headache, neck pain, wrist pain, and knee pain, but declined hospital transport at the scene. In her claim form, she later cited injuries including neck pain with radiculopathy to the upper limbs, lower back pain, bilateral knee pain, and psychological trauma.
At the time of the assessment, the claimant reported chronic pain in her neck and lower back, radiating into her upper and lower limbs. She described ongoing bilateral hip pain, bilateral knee pain, and intermittent numbness in her hands and feet, which had persisted since the motor accident. A clinical examination revealed tenderness over the cervical and lumbar spine, with restricted ranges of motion. Although the claimant displayed some limitations, there was no evidence of radiculopathy, neurological deficits, or muscle atrophy. Examination of her shoulders showed normal forward flexion with mild restrictions in other planes, while her knees and hips exhibited tenderness but maintained functional ranges of motion. Her right wrist was found to be normal with no abnormalities or functional deficits.
Diagnostic imaging conducted on 24 August 2019 showed mild degenerative changes in the claimant’s knees and hips, with no fractures or significant acute abnormalities. X-rays of her cervical and lumbar spine similarly confirmed mild degenerative changes but no evidence of structural damage directly attributable to the motor accident.
Dr Perla concluded that the claimant had sustained soft tissue injuries to her neck, back, hips, knees, and right wrist as a direct result of the motor accident. He found no evidence of fractures, radiculopathy, or an aggravation of pre-existing conditions. The claimant had undergone physiotherapy and osteopathy as part of her treatment, which Dr Perla considered appropriate but ultimately insufficient to fully alleviate her symptoms. He recommended a self-managed home exercise programme for ongoing recovery and stated that no further invasive or specialist interventions were necessary.
Dr Perla opined that the claimant was fit to perform light-duty work with restrictions, such as avoiding heavy lifting and prolonged standing. He suggested that she could return to full-time suitable duties within six to eight weeks and found no long-term incapacity for work beyond specific physical limitations. Based on the Guides and the Guidelines, Dr Perla assigned 0% WPI to the cervical and lumbar spine due to the absence of verifiable radiculopathy or significant impairment. Minor impairments in her hips and knees contributed to a total WPI of 4%. While an additional 1% could be considered if shoulder injuries were included, Dr Perla concluded that her overall WPI remained below the 10% threshold.
In terms of prognosis, Dr Perla stated that the claimant’s outlook was good despite her ongoing chronic pain. He emphasised that, with full compliance with treatment recommendations, the claimant was fit to resume full-time suitable duties immediately. He also noted that her recovery might be influenced by non-medical factors, including psychological overlay and illness-focused behaviour, which could affect her perception of pain and the recovery process. Dr Perla’s assessment concluded that the claimant’s injuries had stabilised, and her prognosis was favourable with no requirement for further treatment beyond home-based exercises.
Certificates of Capacity and fitness dated 11 June 2021, 13 July 2021, 13 August 2021, and 7 September 2021 recorded the diagnosis of the claimant’s motor accident-related injuries as neck pain, right wrist pain, hips and knees pain, lower abdomen and pelvic pain, headache, emotional post-trauma, and blurred vision.
The report dated 18 May 2021 includes findings from a CT scan of the lumbosacral spine and an ultrasound of the pelvis performed to investigate upper abdominal discomfort, pelvic pain radiating to the groin, and lower back pain radiating to the left L5 dermatome.
The CT lumbosacral spine revealed bilateral pars defects at L5/S1 associated with bilateral spondylolysis but no significant spondylolisthesis. There was evidence of a low-grade concentric disc bulge at L4/L5 with ligamentum flavum hypertrophy and early right facet degeneration but no foraminal stenosis. At L3/L4, another low-grade disc bulge with mild posterior arthropathy and mild foraminal stenosis was noted. The L2/L3 and L1/L2 levels showed no disc disease but moderately severe facet osteoarthritis on the right at L1/L2. The report indicated that the spondylolytic changes and pars defects were likely developmental. For pain relief, a perineural injection targeting the L5 nerve was suggested.
The ultrasound of the pelvis showed an anteverted uterus with an intramural fibroid on the right side measuring 10 x 9 x 9mm. The uterus appeared otherwise normal with a homogeneous myometrium. The endometrium measured 3mm in thickness, and no adnexal masses or free fluid were seen. A rectocoele was evident on translabial imaging during straining, but the study was otherwise unremarkable.
In a report dated 13 January 2022, Dr Uthum Dias undertook an assessment of the claimant based on an examination and included a review of the claimant’s medical history, clinical presentation, and supporting documentation.
The claimant presented with chronic, non-specific cervical spine pain characterised by stiffness, discomfort, and a reduced range of motion, which Dr Dias classified as Whiplash Associated Disorder Grade 2. The claimant’s right and left shoulders were similarly affected, with the reduced range of motion in both shoulders being attributed to referred pain from her cervical spine. Dr Dias diagnosed an aggravation of pre-existing degenerative thoracic spondylosis and noted persistent aggravation of bilateral L5/S1 pars defects, which were accompanied by L5/S1 disc protrusion. These spinal injuries resulted in left-sided L5 radiculopathy, which Dr Dias attributed to musculoligamentous strain.
In addition to her spinal injuries, the claimant exhibited chronic right and left patellofemoral dysfunction, which caused ongoing knee discomfort. She also suffered soft tissue injuries to her right shoulder and hips. However, Dr Dias concluded that the soft tissue injuries affecting her right wrist, and both hips had resolved by the time of his assessment. Despite the partial resolution of some injuries, the claimant continued to experience significant chronic symptoms affecting her mobility and overall functionality.
Dr Dias assigned a WPI rating of 21%.
RE-EXAMINATION
The Panel determined that it would re-examine the claimant. The re-examination was undertaken by Medical Assessor Moloney on behalf of the Panel on 28 February 2024. The following is a contemporaneous record of the clinical assessment undertaken.
The claimant attended the medical suites of the Commission on 28 February 2024. She was unaccompanied by an interpreter, Hafez Assoum, NAATI no. CPN5KR53J who was in attendance for the entire interview and examination.
Pre-accident history
The claimant stated that she was working full-time in a takeaway food business with her husband at the time of the motor accident. She is married and lives with her husband and three of her four children.
She stated she had a motor vehicle accident about 25 years ago which resulted in back pain which settled within year. She was very vague about more recent back pain episodes and states that because she was standing all day at work and occasionally had a sore back. She did eventually remember that there had been cortisone injections to the lumbar spine then remembered that they didn’t give any benefit prior to the accident.
Motor accident
The claimant was driving home from work and was hit on the passenger side of her car by a car that failed to give way. She states her car was a solid Toyota four-wheel-drive and was subsequently a write-off due to the impact. She was able to get out of the car and was wearing a seatbelt at the time, but airbags were not deployed. The ambulance and police officers attended the scene of the accident, but her husband collected her and drove her home. With the impact she stated she had a headache due to hitting the dashboard with sore wrists and both knees.
History of subsequent treatment
The pain increased during the night after the motor accident in a widespread distribution and she consulted her general practitioner the next day. He organised radiological investigations, prescribed analgesics and referred her for physiotherapy which was of brief benefit. She was later referred to a psychologist, chiropractor and later, and osteopath which gave some benefit.
The claimant states that there had been no other injuries or conditions sustained since the motor accident.
Current symptoms
The claimant states that she has pain everywhere. In particular, the claimant described a constant neck pain which radiates into the occipital region and then temples and sometimes associated with blurry vision. This pain is worse in the morning and improves gradually during the day. Neck pain radiates down both arms more so on the right in a global distribution including all fingers and thumbs. She stated that this has significantly increased in the past six months. There is low back pain with some pain also in the midthoracic spine region. She gets an ache in her legs and, in particular, her thighs and around her knees. Pain radiates in a global distribution in both legs more so on the right including the soles of the feet. There is also pain in the hip region particularly in the right. These pains have been getting worse significantly in the past 2 years. She has a poor sleep pattern and wakes frequently with pain and has trouble walking. Her walking is limited to around the house and yard and occasionally going shopping. The claimant stated she has not returned to work in her husband’s business and states that she occasionally cooks at home but does no cleaning.
The claimant stated that all these pains are getting worse daily.
Current and proposed treatment
Present medication is Nurofen about four per day, Lyrica on and off, Panadiene Forte when the pain is severe and an occasional Valium. She consulted her general practitioner when necessary and at presence sees an osteopath once or twice per week. There was a regular follow-up with her psychologist and her next appointment was in June 2024.
Clinical examination
The claimant stated that she is right-handed and height was measured at 150cm and 86kg. She had an unsteady gait when walking into the room and was teary when recapping the events of the accident.
Cervical spine
On palpation of the cervical spine there was tenderness over the trapezius muscles and all the cervical spiney processes, but no guarding or spasm was noted in the cervical musculature. On testing range of movement flexion/extension was 40% of expected range, side bending, and rotation were 50% of expected range with no asymmetry.
On neurological examination of the upper limbs, reflexes were equal bilaterally with normal power and a global decrease to light touch in the right arm in a nondermatomal distribution. No muscle wasting was apparent with the circumference of the upper arms 33cm bilaterally (10cm above the olecranon process) and in the upper forearms 27cm bilaterally (5cm below the olecranon process).
Lumbar spine
The claimant had a slightly antalgic gait and was unstable when attempting to stand on heels and toes. Squatting was limited to 30% of expected range due to pain in the lower back and hips.
On testing range of movement, flexion was 30% of expected range but extension was limited to 10%. Side bending was 20% of expected range bilaterally, as was rotation. On palpation there was a generalised tenderness in the gluteal muscles, but no guarding or spasm was noted in the lumbar musculature.
On neurological examination of the lower limbs, reflexes were equal bilaterally with normal power and a global decrease in sensation in the right leg which was not dermatomal. No muscle wasting was apparent with the circumference of the lower thighs 51cm bilaterally (10cm above the superior patella pole) and at the maximum circumference of the calves 39cm bilaterally.
Thoracic spine
On inspection of the thoracic spine, there was a normal contour and on testing range of movement, flexion/extension was 50% of expected range as was side bending and rotation with no asymmetry. There were no signs of radiculopathy or non-verifiable radicular complaints in the thoracic spine region. On palpation no guarding or spasm was noted.
Shoulders
On inspection of the shoulders no muscle wasting was apparent and on passive movement no crepitus was detected. Active movements were measured using a goniometer and repeated three times. There was no referral of pain from the cervical spine during shoulder movement and the claimant stated that the limitation in movement was due to pain in the upper arm and thoracic spine region. Impingement tests were negative.
Shoulder Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
120°/110°
110°/120°/100°
Extension
40°
40°
Adduction
40°
40°
Abduction
110°/120°
120°/110°
Internal Rotation
60°
60°
External Rotation
70°
70°
The Panel asked the claimant why the range of movement of the shoulders had deteriorated significantly in the last 10 months since her previous examination. She stated that she did not know why this occurred but stated that in general pain in her body has been increasing.
Wrists
On inspection of the wrist no abnormality was detected and on palpation there was tenderness over the entire wrist joint bilaterally.
Wrist Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
60°
60°
Extension
60°
60°
Radial Deviation
20°
20°
Ulnar Deviation
30°
30°
Knees
On inspection of the knees no effusions were present and on passive movement no crepitus was detected in either knee. No ligament laxity was noted bilaterally.
Knee Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
120°
120°
Extension
0°
0°
Hips
On palpation there was a generalised tenderness over both hip joints particularly the right hip. No obvious trochanteric bursitis was noted. No muscle wasting was noted.
Hip Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
100°
110°
Extension
0°
0°
Adduction
20°
20°
Abduction
30°
40°
Internal Rotation
25°
30°
External Rotation
35°
40°
Head
There is no evidence of any injury sustained to a head since the accident.
Consistency
The Panel explained to the claimant that there had been variations in range of movement at the time of the examination and in particular compared to previous examination and asked her to provide a comment she may have to explain this inconsistency, which response is recorded above.
PANEL’S FINDINGS AND CONCLUSIONS ON RE-EXAMINATION
Cervical spine – pain was recorded by the treating general practitioner and radiological investigations undertaken within three weeks of the motor accident. The Panel is satisfied that the claimant sustained a soft tissue injury to the cervical spine in the motor accident. Based on the above examination findings set out above, using table 73 of the Guides, WPI is 0% for a classification DRE 1.
Lumbar spine – the Panel is satisfied that the claimant sustained a soft tissue injury to the lumbar spine, specifically lumbar spine dysmetria, as a result of the motor accident. This conclusion is supported by clear evidence that dysmetria was not present prior to the motor accident and that the collision introduced new, observable impairments. While the claimant’s pre-accident history included significant degenerative conditions – such as pars defects, spondylolisthesis, and facet joint arthritis – there is no mention of dysmetria in any pre-accident medical records. This is notable, given that her pre-existing symptoms were severe enough to require interventions such as cortisone injections and pain management medications. Had dysmetria been present, it would have likely been identified during these evaluations.
Post-accident medical evidence establishes the presence of dysmetria through findings of restricted lumbar spine range of motion, with flexion limited to 30% and extension to 10%, accompanied by pain and tenderness. These findings were not documented prior to the motor accident. The mechanism of the collision, where the claimant’s vehicle was struck on the passenger side, provides a plausible explanation for trauma-induced dysmetria. The resulting widespread pain and reduced mobility align with soft tissue injuries typically caused by such impacts.
The Panel recognises that the claimant’s pre-existing conditions predisposed her to back pain and stiffness. However, there is no indication in her medical history or imaging studies that these conditions would naturally result in dysmetria absent a traumatic event. The imaging and clinical assessments conducted after the motor accident reveal new findings, such as restricted range of motion and persistent pain, which are distinct from her pre-existing degenerative changes. This supports the conclusion that the motor accident was the significant contributing factor to the development of dysmetria.
Using Table 72 of the Guides, the Panel classified the lumbar spine under DRE Lumbar Spine Category II and assigned a 5% WPI. This classification reflects the presence of specific findings, such as dysmetria, without signs of radiculopathy or instability. The absence of radicular complaints or inconsistencies in symptoms further confirms that the dysmetria is a reliable and observable consequence of the motor accident rather than a manifestation of pre-existing conditions.
In conclusion, the lumbar spine dysmetria is attributed to the motor accident, as it represents a new and objective impairment distinct from the claimant’s pre-existing conditions. The motor accident introduced specific physical limitations and symptoms that were not present prior to the collision. This satisfies the standard for causation under the Act.
Thoracic spine – the thoracic soft tissue injury sustained by the claimant is attributable to the motor accident based on clinical findings and the mechanism of the collision. The motor accident involved a significant side impact severe enough to write off the claimant’s vehicle, plausibly causing musculoligamentous strain in the thoracic region. Post-accident, the claimant’s treating general practitioner documented thoracic spine stiffness eight weeks later, which is consistent with a soft tissue injury.
While imaging did not reveal acute abnormalities, this is expected for soft tissue injuries, which are often not visible radiologically. The claimant’s restricted thoracic range of motion, particularly flexion and extension at 50% of the expected range, supports the diagnosis of a soft tissue injury. Furthermore, no pre-existing thoracic complaints were recorded in the claimant’s medical history, ruling out a prior condition as the cause.
The absence of radiculopathy or alternative explanations, coupled with symptoms directly linked to the collision, confirms the thoracic soft tissue injury as a result of the motor accident. This conclusion is consistent with the clinical evidence and satisfies the standard of causation under the Act.
On examination there is 0% WPI using Table 74 of the Guides.
Hips – the claimant’s hip pain is attributable to the motor accident, as it was reported immediately after the collision and documented by paramedics and her general practitioner, who noted tenderness in both hips. The side-impact collision likely caused a twisting motion, leading to soft tissue injuries. While imaging revealed mild degenerative changes, there is no evidence that this was symptomatic before the motor accident. The persistent hip pain following the collision, despite treatment, aligns with trauma-induced soft tissue injuries, establishing a causal link under the Act. This is assessed using range of movement using table 40 of the Guides, which is 0% WPI.
Knees – the claimant’s knee injuries are attributable to the motor accident based on contemporaneous evidence and the collision’s mechanism. Immediately after the motor general practitioner’s notes the following day documenting bilateral knee pain and tenderness. The collision likely caused the claimant’s knees to strike the dashboard, consistent with her account and the nature of the impact. Post-accident X-rays ruled out fractures but showed mild degenerative changes, which were asymptomatic before the motor accident. The claimant’s persistent knee pain during follow-up treatments aligns with soft tissue injuries typically caused by trauma.
No significant pre-accident history of knee complaints explains the acute onset of symptoms. Thus, the evidence demonstrates the soft tissue injuries to the knees resulted from the motor accident, meeting the causation standard under the Act. The persistent slight pain in both knees was assessed using table 41 of the Guides as 0% WPI.
Right wrist – the treating general practitioner recorded right wrist pain after the motor accident and investigated this with an X-ray. The Panel is satisfied that the claimant sustained a soft tissue injury to the right wrist in the motor accident. There is some persistent pain in the right wrist range of movement using figures 26 and 29 of the Guides. This also gives 0% WPI.
Shoulders – the Panel concludes that the claimant’s shoulder injuries are unlikely related to the motor accident for several reasons. First, there is no immediate documentation of significant shoulder pain or injury in the initial medical records following the motor accident. While later assessments noted shoulder pain, no clear causal relationship between the motor accident and these symptoms was established. Additionally, during examinations, there was no evidence of pain referral from the cervical spine to the shoulders. At the time of my examination there was no referral of pain from the cervical spine to either shoulder. The Panel does not consider that that the principle derived from Nguyen v Motor Accidents Authority of New South Wales and Anor [2011] NSWSC 351; 58 MVR 296 applies. The claimant stated that the pain was in the upper arms and in particular the triceps region and the intrascapular region of the spine pain limiting this movement.
The claimant’s reported pain patterns further weaken the causal connection to the motor accident. She described discomfort primarily in the upper arms, particularly the triceps and intrascapular regions, rather than in the shoulders themselves, which is inconsistent with typical shoulder injuries from a collision. Moreover, significant variability was observed in her range of motion over time, raising doubts about the organic nature of the symptoms. This inconsistency made it difficult to reliably assess impairment or attribute the symptoms to the motor accident. When asked about the worsening range of motion in her shoulders, the claimant was unable to provide a clear explanation, further adding to the uncertainty.
Radiological findings also did not support a direct link between the motor accident and the shoulder symptoms. Imaging studies conducted after the motor accident revealed no acute shoulder injuries, such as fractures or soft tissue damage. Instead, pre-existing degenerative changes in the shoulders were noted in the claimant’s medical history, which better explain her symptoms independently of the motor accident.
Based on these findings, the Panel is not satisfied that the shoulder symptoms are attributable to the motor accident. While the Panel acknowledges the claimant’s reports of pain, it is unable to conclude to the requisite standard a causal link reflecting the lack of evidence directly attributing the symptoms to the motor accident.
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