QBE Insurance (Australia) Limited v Elsaleh

DETERMINATION OF REVIEW PANEL
CITATION:	QBE Insurance (Australia) Limited v Elsaleh [2024] NSWPICMP 351
CLAIMANT:	Raquel Rachel Elsaleh
INSURER:	QBE Insurance (Australia) Limited
REVIEW PANEL
MEMBER:	Anthony Scarcella
MEDICAL ASSESSOR:	Les Barnsley
MEDICAL ASSESSOR:	Ian Cameron
DATE OF DECISION:	30 May 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical assessment of whole person impairment (WPI) by Medical Assessor (MA) Berry who determined that the claimant had a whole person impairment (WPI) of greater than 10%, that is, 14% WPI; review sought by insurer under section 7.26; claimant suffered neck, right shoulder and back injuries as well as a psychological injury in a motor accident on 7 February 2018; consideration and application of clauses 6.5 to 6.7 of the Motor Accident Guidelines in respect of causation, clauses 6.19 to 6.22 in respect of permanent impairment, clauses 6.31 to 6.33 in respect of pre-existing impairment, clause 6.50 in respect of the assessment of the upper extremity and clauses 6.111 to 6.142 in respect of the assessment of the spine; Held – the Panel revoked the certificate issued by MA Berry dated 15 June 2023; the Panel certified that the claimant sustained soft tissue injuries to her cervical spine, right shoulder and lumbar spine caused by the motor accident on 7 February 2018 that gives rise to a WPI which is not greater than 10%, that is, 7%.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate issued by Medical Assessor Neil Berry dated 15 June 2023. 2. Certifies that the claimant sustained a soft tissue injury to the cervical spine, a soft tissue injury to the lumbar spine and a soft tissue injury to the right shoulder caused by the motor accident on 7 February 2018 that give rise to a whole person impairment that is not greater than 10%, that is, 7%. A statement setting out the Review Panel’s reasons for the assessment is attached to this certificate.

STATEMENT OF REASONS

BACKGROUND

The claimant, Ms Raquel Rachel Elsaleh, is a 50-year-old woman who was involved in a motor accident on 7 February 2018 whilst the driver of a motor vehicle that collided with a truck (the motor accident).
On 14 February 2018, Ms Elsaleh made an application for personal injury benefits. The relevant compulsory third party insurer is QBE Insurance (Australia) Limited (the insurer).
Ms Elsaleh claims that she suffered physical and psychological injuries as a result of the motor accident.
Ms Elsaleh’s claim is governed by the provisions of the Motor Accident Injuries Act2017 (MAI Act). This legislation provides a scheme for the compulsory third party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
A medical dispute about the degree of Ms Elsaleh’s whole person impairment (WPI) in respect of her physical injuries has arisen in connection with his claim. This constitutes a medical assessment matter under Schedule 2, cl 2(a) of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor: s 7.20 of the MAI Act.
The medical dispute was referred to the Personal Injury Commission (Commission) and the Commission assigned it to Medical Assessor Neil Berry for assessment.
On 15 June 2023, Medical Assessor Berry determined that Ms Elsaleh suffered a soft tissue injury to the cervical spine, a soft tissue injury to the lumbar spine and right shoulder bursitis and restriction of movement caused by the motor accident and assessed her as having a WPI greater than 10%, that is, 14%.

REVIEW PROCEDURE

The insurer sought a review of the Medical Assessment in accordance with s 7.26 of the MAI Act (the Review).
On 22 September 2023, the President’s delegate determined that there was reasonable cause to suspect that the Medical Assessment was incorrect in a material respect and referred the matter to a Review Panel (the Panel).
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: s 7.26(5A) of the MAI Act. Accordingly, the President’s delegate has convened this Panel to conduct the review of the Medical Assessment.
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: s 41(2) of the PIC Act.
The Review of the Medical Assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect. The Review is by way of a new assessment of all matters with which the medical assessment is concerned: s 7.26(6) of the MAI Act. However, s 7.25 of the MAI 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 motor accident, without those matters having to be the subject of assessment.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application: Rule 128 of the PIC Rules.
On 27 September 2023, the Panel directed the parties to lodge with the Commission an indexed and paginated final bundle of documents on which they relied in the Review.
On 4 December 2023, the Panel informed the parties that it considered a re-examination of Ms Elsaleh was required. Arrangements were made for Ms Elsaleh to be re-examined by Medical Assessor Les Barnsley and Medical Assessor Ian Cameron on 7 February 2024. The claimant was directed to take to the re-examination appointment all relevant imaging studies (cervical spine, lumbar spine and right shoulder).

LEGISLATIVE FRAMEWORK

General provisions

Section 1.4 of the MAI Act defines ‘injury’ to mean a personal or bodily injury and includes a pre-natal injury; a psychological or psychiatric injury; and damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses.
Sections 5D (duty of care – general principles) and 5E (onus of proof) of the Civil Liability Act 2002 (the CLA) apply to the MAI Act: s 3B(2) of the CLA.
Ms Elsaleh’s claim and entitlements to compensation are governed by the provisions of the MAI Act. An injured person can make a claim for both economic losses and non-economic loss damages.
However, s 4.11 of the MAI Act provides that no damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.

Permanent impairment assessment

Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines version 9.2 effective from 10 November 2023 (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment Fourth Edition (AMA 4 Guides). The Guidelines are definitive in respect of the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed: cl 6.2 of the Guidelines.
Permanent impairment is assessed in accordance with Chapter 6 of the Guidelines.
Causation of injury is addressed in cls 6.5, 6.6 and 6.7 of the Guidelines.
Clause 6.6 of the Guidelines notes:
“6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
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 contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.”

Clause 6.7 of the Guidelines states:
“There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
Pre-existing impairment is addressed in cls 6.31, 6.32 and 6.33 of the Guidelines.
The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored: cl 6.31 of the Guidelines.
Clause 6.32 of the Guidelines states:
“The capacity of a medical assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA 4 Guides (page 10): 'For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.' Refer to clause 6.218 for the approach to a pre-existing psychiatric impairment.”
Pre-existing impairments should not be assessed if they are unrelated or not relevant to the impairment arising from the motor accident: cl 6.33 of the Guidelines.
Subsequent injury is addressed in cl 6.34 of the Guidelines which states:

“The evaluation of permanent impairment may be complicated by the presence of an impairment in the same region that has occurred subsequent to the relevant motor accident. If there is objective evidence of a subsequent and unrelated injury or condition resulting in permanent impairment in the same region, its value should be calculated. The permanent impairment resulting from the relevant motor accident must be calculated. If there is no objective evidence of a subsequent impairment, its possible presence should be ignored.”

Clause 6.19 of the Guidelines states:

“Before an evaluation of permanent impairment is undertaken, it must be shown that the impairment has been present for a period of time, and is static, well stabilised and unlikely to change substantially regardless of treatment. The AMA 4 Guides (page 315) state that permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment. A permanent impairment is considered to be unlikely to change substantially (i.e. by more than 3% whole person impairment (WPI) in the next year with or without medical treatment). If an impairment is not permanent, it is inappropriate to characterise it as such and evaluate it according to these Guidelines.”

The evaluation of permanent impairment should only consider the impairment as it is at the time of the assessment: cl 6.21 of the Guidelines.
The evaluation of permanent impairment must not include any allowance for a predicted deterioration. However, it may be appropriate to comment on this possibility in the impairment valuation report: cl 6.22 of the Guidelines.

EVIDENCE BEFORE THE PANEL

The evidence before the Panel consisted of the following:
(a) the insurer’s indexed and paginated bundle of documents lodged on the Commission’s portal on 21 November 2023 (insurer’s documents), and
(b) Ms Elsaleh’s indexed and paginated bundle of documents lodged on the Commission’s portal on 28 November 2023 (claimant’s documents).

ASSESSMENT UNDER REVIEW

Medical Assessor Berry examined Ms Elsaleh on 11 July 2023 and issued a certificate under s 7.23(1) of the MAI Act on 15 June 2023.[1]
[1]Insurer’s documents at pages 13-22.
Medical Assessor Berry was asked to assess the dispute between the parties about the degree of permanent impairment under Schedule 2, cl 2(a) of the MAI Act in respect of the following physical conditions:
(a)    cervical spine – DRE II neck impairment;
(b)    lumbar spine – DRE II back impairment, and
(c)    right shoulder – loss of range of movement.
Medical Assessor Berry took the following pre-accident medical history:
“Ms Elsaleh is not aware of any serious health issues. She does recall having a fractured right ankle at the age of 16 which was treated by open reduction and internal fixation. Apart from that she has had a caesarean section for her 10 year old son and had a D & C before the motor accident.”[2]
[2] Insurer’s documents at page 15 at [6].
Medical Assessor Berry took the following history of the motor accident:
“On 7 February 2018, she was the driver of a Toyota Highlander, seven seater wearing her seatbelt and was returning home from dropping of her two younger children at school in Greenacre and Strathfield. She was travelling on the M5 motorway in the middle lane when a truck merged into her lane from the right resulting in a collision. Her vehicle spun around and crashed into a wall. Ms Elsaleh was extricated by Police or the Fire Brigade and transported by Ambulance to Liverpool Hospital. She told me that initially she did not feel any pain but was in shock.”[3]
[3] Insurer’s documents at page 15 at [7].
Medical Assessor Berry took the following history of symptoms and treatment following the motor accident:
“Ms Elsaleh told me that while in hospital she developed pain all over her body. She was extensively investigated at Liverpool Hospital and discharged on the third day. It would appear that she signed herself out of hospital as there was no one to look after her children and she was very keen to get home.
She continued to suffer pain in her neck, back and right shoulder. Initially, she had abdominal pain and pain in her hips but this has settled. She attended various general practitioners and was referred for physiotherapy and has been prescribed multiple medications which she says, ‘paralysed her’ and prevents her from working.”[4]
[4] Insurer’s documents at page 15 at [8].
In respect of Ms Elsaleh’s current symptoms, Medical Assessor Berry noted that she was not working. Ms Elsaleh regarded her neck as the worst area affected, particularly, at night as lying on her right side caused pain that extended down her right arm. She had a painful right shoulder. There was a specific area of the medial end of the clavicle that was sore and her movements were restricted. She experienced pins and needles that affected the whole of her arm and the front and back of her hand. In respect of her back, she had pain in the midline in the lower back which was aggravated by bending, lifting and doing anything of a heavy nature.
In respect of treatment, Medical Assessor Berry noted that Ms Elsaleh was taking Lyrica, Voltaren and Nurofen for her pain. She used cannabis oil at night. She was not aware of any proposed treatment for the foreseeable future.
In respect of her general presentation on examination, Medical Assessor Berry observed that Ms Elsaleh moved with normal posture and gait. She was unable to sit in one position for any length of time and moved between the two chairs in the examination room. She was 158cm in height and 70kg in weight.
On examination of Ms Elsaleh’s cervical spine, Medical Assessor Berry observed that her neck appeared to be of normal contour. There were tender spots. There was no muscle spasm or muscle guarding. She demonstrated a full range of flexion, extension, left and right rotation and left and right lateral flexion.
On examination of Ms Elsaleh’s thoracic spine, Medical Assessor Berry observed that there was no tenderness to palpation and that there was a full range of movement.
On examination of Ms Elsaleh’s lumbar spine, Medical Assessor Berry observed that she was tender in the midline. Flexion brought her hands to her shins. Extension was minimal and rotation was normal. There was no flattening of the lumbar lordosis and no paraspinal muscle spasm.
On examination of Ms Elsaleh’s upper extremities, Medical Assessor Berry observed that she was tender over the anterior aspect of the right shoulder. Right shoulder movements were restricted. Elbow and hand movements were normal. Reflexes were intact and there was no muscle wasting or sensory impairment in either upper extremity. There was no tenderness or wasting of the left shoulder and there was a normal range of movement.
On examination of Ms Elsaleh’s lower extremities, Medical Assessor Berry noted that all active movements were measured with a goniometer. There was no restriction of hip, knee and ankle movements. There were scars on the right ankle consistent with Ms Elsaleh’s previous open reduction and internal fixation but there was a normal range of movement. Reflexes were intact and sensation was normal. There was no unilateral muscle wasting.
Medical Assessor Berry noted that Ms Elsaleh was cooperative throughout the assessment. There was no evidence of exaggeration or illness behaviour.
Medical Assessor Berry summarised the relevant documentation, radiological, medical imaging and other investigations provided to him.
Medical Assessor Berry concluded that Ms Elsaleh had sustained a soft tissue injury to the cervical spine, a soft tissue injury to the lumbar spine and right shoulder bursitis and restriction of movement, all of which were caused by the motor accident.
Medical Assessor Berry assessed Ms Elsaleh as meeting the criteria for diagnosis-related estimates (DRE) cervicothoracic category I impairment of the cervical spine, which equates to a WPI of 0%.
Medical Assessor Berry assessed Ms Elsaleh as meeting the criteria for DRE lumbosacral category II impairment of the lumbar spine, which equates to a WPI of 5%.
Medical Assessor Berry assessed Ms Elsaleh’s right shoulder using the range of movement model and found a WPI of 9%.
Medical Assessor Berry assessed Ms Elsaleh as having a final WPI of 14%.
In respect of apportionment, Medical Assessor Berry noted that there was no pre-existing or subsequent impairment and accordingly, apportionment was irrelevant.

REVIEW OF EVIDENCE

Application for personal injury benefits

On 14 February 2018, Ms Elsaleh completed an application for personal injury benefits in respect of the motor accident (the application form).[5]
[5] Insurer's documents at pages 1084-1089.

The application form set out the basic particulars of the motor accident and Ms Elsaleh described the accident as follows:
“My car was hit by a truck that was merging into my lane.”[6]
[6] Insurer's documents at page 1086.
In the application form, Ms Elsaleh described her injuries as a result of the motor accident as headache; neck pain/stiffness; right shoulder; upper back; mid and lower back; chest; abdominal pain; right hip; and psychological injury.
In the application form, Ms Elsaleh disclosed that she had suffered from depression prior to the motor accident. She disclosed no other illness or injury affecting the same or similar parts of her body at the time of the motor accident.

Treating medical records and reports

Pre-accident

On 29 October 2014, Ms Elsaleh consulted Dr Vani Arjunamani, general practitioner, of Chullora Marketplace Medical Centre reporting that she had picked up an air-conditioner and fallen backwards three days earlier and thereafter, suffered ongoing lower back pain. On examination, Dr Arjunamani observed that Ms Elsaleh was most tender at the L3/4 left facet joint and paravertebral region. Straight leg raise was negative bilaterally and knee jerks were symmetrical. The range of motion in her back was restricted. Dr Arjunamani prescribed her Panadeine Forte 500mg and referred her for medical imaging.[7]
[7] Insurer's documents at pages 307-308.
Between 29 October 2014 and 7 May 2015, there were no complaints of lower back pain recorded in Ms Elsaleh’s Chullora Marketplace Medical Centre clinical records.
On 8 May 2015, Ms Elsaleh consulted Dr Amal Ibrahim, general practitioner, of Chullora Marketplace Medical Centre reporting that she had sustained a fall the previous Friday. She had landed on her bottom on tiles and injured her lower back. On examination, Dr Ibrahim observed no neurological symptoms and noted that her back was tender over the sacral spine, especially the coccyx and over the mid thoracic spine. Dr Ibrahim prescribed her Panadeine Forte 500mg and referred her for medical imaging.[8]
[8] Insurer's documents at page 310.
On 8 May 2015, Ms Elsaleh underwent X-rays of her thoracic spine, lumbosacral spine, sacrum and coccyx by Dr D Chadban, radiologist. Dr Chadban reported that there was normal alignment at the sacrococcygeal junction; there was no convincing evidence of a sacral or coccygeal fracture; vertebral body alignment and disc space heights within the thoracic and lumbar spines were within normal limits; there were mild anterior spondylotic changes within the mid and lower thoracic levels; there were no wedge compression or endplate fractures; there was no definite focal bony lesion; and facet joint degenerative disease was noted at the lower lumbar levels.[9]
[9] Insurer's documents at page 1032.
Thereafter, there were no further complaints of lower back pain recorded in Ms Elsaleh’s Chullora Marketplace Medical Centre clinical records until after the motor accident.

Post-accident

In evidence, there is the discharge referral from Liverpool Hospital dated 8 February 2018 (the discharge referral).[10]
[10] Insurer's documents at pages 94-100.
The discharge referral noted that Ms Elsaleh was admitted to Liverpool Hospital on 7 February 2018 following a high-speed motor vehicle accident. The history on presentation was that Ms Elsaleh was a restrained driver travelling at 100kmph when she was side-swiped by a truck. Her vehicle spun but there was no rollover. Airbags were deployed and she was extricated with assistance. There was no head strike or loss of consciousness. Ms Elsaleh was complaining of neck pain, chest wall pain, right hip pain, right shoulder and arm pain. She was stable at the scene and on transfer.
The discharge referral recorded that Ms Elsaleh had no bruising or abrasions to her head and that cranial nerve examination was normal. In respect of the neck, there was midline cervical spine tenderness at C3-C7 and left paraspinal tenderness. There were no seatbelt marks or bruising to the chest. In respect of the abdomen, there were lower abdominal seatbelt signs, per vaginum (PV) bleeding, suprapubic tenderness and no peritonism. There was right shoulder tenderness without deformity and a normal range of movement and sensation. There was no deformity or tenderness in the lower limbs and there was normal power and sensation. There was upper midline thoracic tenderness at T1-T5.
On 7 February 2018, Ms Elsaleh underwent a CT scan of her abdomen and pelvis at Liverpool Hospital. No traumatic abdominal or pelvic injuries were demonstrated.[11]
[11] Insurer's documents at pages 97-98.
On 7 February 2018, Ms Elsaleh underwent a CT scan of the cervical spine and a carotid angiogram at Liverpool Hospital. The CT scan demonstrated no acute cervical spine fracture or dislocation and no arterial injury.[12]
[12] Insurer's documents at page 98.
On discharge from Liverpool Hospital, Ms Elsaleh was provided with regular simple analgesia and a prescription for Endone. She was instructed to follow-up with her general practitioner after one week or re-present to the emergency department if symptoms such as severe abdominal pain or vomiting escalated.
On 9 February 2018, Ms Elsaleh consulted Mr Christopher Koletti, psychologist, of Chullora Marketplace Medical Centre reporting that she had been involved in a motor accident on 7 February 2018 on the M5 when her vehicle was hit by a truck, spun around, was forced off the road and struck a concrete wall.[13]
[13] Insurer's documents at page 327.
On 10 February 2018, Ms Elsaleh consulted Dr Mohamad Kbar, general practitioner, of Chullora Marketplace Medical Centre reporting that she had been involved in a high-speed motor accident the previous week. She complained of lower abdominal pain, bruising, neck pain and lethargy. No lower back pain was recorded. On examination, Dr Kbar observed tenderness in the central abdomen and suprapubic region; no palpable abdominal mass; no guarding; no rigidity; no rebound; no distension; no hepatomegaly; no splenomegaly and normal bowel sounds. There was neck rigidity with a decreased range of motion. Ribs and upper chest wall were tender. Dr Kbar prescribed Ms Elsaleh Voltaren 50mg tablets, Enteric tablets and Zofran 8mg tablets.[14]
[14] Insurer's documents at pages 327-328.
On 13 February 2018, Ms Elsaleh consulted Dr Ibrahim reporting that she had been involved in a high-speed motor accident on 7 February 2018. He noted that Ms Elsaleh had discharged herself from hospital against medical advice because she had to look after her children. She complained of right shoulder pain, right lower abdominal pain and neck pain. No lower back pain was recorded. On examination, Dr Kbar observed that she was alert, oriented and walking independently. She was tender in the mid thoracic spine, cervical spine, at the paravertebral muscles and over the right shoulder. There was limited abduction in the right shoulder and impingement signs were positive on abduction. Dr Ibrahim prescribed Ms Elsaleh with Targin 5mg tablets.[15]
[15] Insurer's documents at pages 328-329.
Dr Eric Lim, general practitioner, of Workers Doctors prepared an initial assessment report dated 14 February 2018.[16] Dr Lim provided a brief history of the motor accident, medical treatment thereafter and past medical history. He noted Ms Elsaleh’s employment as that of a professional cleaner. He noted that Ms Elsaleh had suffered neck, shoulder, chest, back, hip, leg, abdomen and psychological injuries caused by the motor accident. Dr Lim recorded current symptoms to include headaches; neck pain with stiffness referred into both shoulders; numbness in the right hand; upper and lower back pain; right hip pain; right leg pain; anterior chest pain; and abdominal pain. He also noted that she was anxious when driving, hypervigilant, cautious and suffering from sleeping difficulties and flashbacks. Dr Lim’s diagnosis was one of cervical spine radiculopathy; bilateral shoulder strain; thoracic spine strain; lumbar spine strain; right hip strain; and acute stress disorder.
[16] Claimant's documents at pages 236-237.
On 16 February 2018, Ms Elsaleh consulted Dr Ibrahim complaining of ongoing back and shoulder pain, noting that she was to commence physiotherapy the following week. Dr Ibrahim recommended that she continue taking Targin at night and Panadol and Nurofen during the day.[17]
[17] Insurer's documents at page 329.
On 27 February 2018, Ms Elsaleh consulted Dr Ibrahim complaining of ongoing right shoulder pain and weakness and neck pain. On examination, Dr Ibrahim observed tenderness in the cervical spine and right shoulder with limited movement, reduced sensation and reduced power. He referred Ms Elsaleh for an MRI scan of her cervical spine and an ultrasound of her right shoulder. In respect of the weakness in her right arm, he queried cervical radiculopathy.[18]
[18] Insurer's documents at page 329.
On 2 March 2018, Ms Elsaleh consulted Dr Ibrahim complaining of ongoing weakness and numbness in her right shoulder, especially when she slept on it. On examination, Dr Ibrahim observed reduced power in the right hand and reduced flexion and extension of the right elbow due to pain and reduced sensation. He recommended a trial of Lyrica.[19]
[19] Insurer's documents at page 329.
On 23 March 2018, Ms Elsaleh consulted Dr Ibrahim who referred her for MRI scans of her cervical spine and thoracic spine and an ultrasound of her right shoulder due to her ongoing neck, mid back and right shoulder pain, weakness and numbness.[20]
[20] Insurer's documents at page 331.
On 13 April 2018, Ms Elsaleh underwent an MRI scan of her cervical spine by Dr Rashidi Mbakada, radiologist, on the referral of Dr Ibrahim. Dr Mbakada reported minimal narrowing of the left exit canal at C5/6 with possible contact/irritation of the exiting left C6 nerve root; mild bilateral facet joint degenerative change at C5/6 and C6/7; and a minimal disc bulge at C5/6, not associated with any cord compromise.[21]
[21] Insurer's documents at pages 1041-1042.
On 13 April 2018, Ms Elsaleh also underwent an MRI scan of her thoracic spine by Dr Mbakada on the referral of Dr Ibrahim. Dr Mbakada reported no vertebral or ligamentous injury and no cord pathology.[22]
[22] Insurer's documents at pages 1042-1043.
On 13 April 2018, Ms Elsaleh also underwent a right shoulder ultrasound by Dr Chadban on the referral of Dr Ibrahim. Dr Chadban reported that the rotator cuff tendons were intact and that there was subacromial bursitis and bursal impingement on abduction.[23]
[23] Insurer's documents at pages 1044-1045.
On 17 April 2018, Ms Elsaleh consulted Dr Ibrahim who explained the MRI scan and ultrasound results to her. He advised her to continue physiotherapy and prescribed medication.[24]
[24] Insurer's documents at page 333.
On 1 May 2018, Ms Elsaleh consulted Dr Ibrahim complaining of ongoing right shoulder and right clavicle pain. Dr Ibrahim referred her for a right shoulder X-ray.[25]
[25] Insurer's documents at pages 334-335.
On 23 May 2018, Ms Elsaleh underwent an X-ray of her right shoulder by Dr Kundum Ramaiah, radiologist, on the referral of Dr Ibrahim. Dr Ramaiah reported that there were moderate osteoarthritic changes in the acromioclavicular joint. The glenohumeral joint was unremarkable and there was no fracture or other focal bony abnormality identified. Bone alignment was within normal limits.[26]
[26] Insurer's documents at pages 1046-1047.
On 22 October 2018, Dr Ibrahim referred Ms Elsaleh for an ultrasound guided steroid injection into the right shoulder.[27]
[27] Insurer's documents at page 343.
In a report to Dr Ibrahim dated 6 November 2018, Ms Xuzhe Lin, physiotherapist, of Physio Rehab Centre confirmed that Ms Elsaleh had undergone five sessions with her. Ms Elsaleh’s initial complaints included neck pain (particularly in the right clavicular area); right shoulder pain; back pain; and some numbness in the right arm. Treatment had included a combination of manual therapy, supervised exercises and a home exercise program. However, she continued to experience pain in her neck, right clavicle and lower back as well as hyperalgesia in these areas. Ms Lin opined that Ms Elsaleh’s symptoms had some neurological component resulting from the motor accident. She opined that her recovery could be of considerable duration. She identified opioid-induced hyperalgesia and psychosocial factors as a barrier to Ms Elsaleh’s recovery. In respect of future management, she opined that Ms Elsaleh would benefit from fortnightly physiotherapy until satisfactory improvement was demonstrated and input from a psychologist as well as a gradual weaning from opiate-based medication.[28]
[28] Claimant's documents at page 296.
On 19 November 2018, Ms Elsaleh underwent an ultrasound guided steroid injection into the right shoulder by Dr Prasad Kundum, radiologist.[29]
[29] Insurer's documents at pages 677-678.
On 19 January 2019, Ms Elsaleh underwent a cervical spine CT guided left C3/4 facet joint block by Dr Ponmailainathan Ketheswaran, radiologist, on the referral of Dr Ibrahim. Dr Ketheswaran reported that Ms Elsaleh’s pain decreased immediately following the procedure from 9/10 to 0/10.[30] The CT scan demonstrated facet joint degenerative change. In particular, at C3/4 with mild to moderate facet joint degenerative change bilaterally and mild bilateral facet degenerative change at the remaining levels with the exception of the C5/6 level which did not demonstrate significant degenerative change.
[30] Insurer's documents at pages 680-681.
On 21 January 2019, Ms Elsaleh underwent a cervical spine CT guided right C6/7 facet joint block by Dr Ketheswaran. Dr Ketheswaran reported that Ms Elsaleh’s pain decreased immediately following the procedure from 8/10 to 5/10.[31]
[31] Insurer's documents at pages 682-683.
On 12 April 2019, Dr Ibrahim referred Ms Elsaleh to the Liverpool Hospital pain clinic.[32]
[32] Insurer's documents at page 559.
On 2 September 2019, Ms Elsaleh consulted Dr Anthony Kodsi, of Liverpool Hospital, Department of Pain Medicine on the referral of Dr Ibrahim. Dr Kodsi reported to Dr Ibrahim that Ms Elsaleh presented with right neck pain, right-sided occipital headaches, shoulder pain and lower back pain. Dr Kodsi took a history of the motor accident but recorded the incorrect date, having nominated February 2014. Otherwise, the history of the motor accident and treatment thereafter was consistent with the evidence. Following a clinical examination, Dr Kodsi reported that Ms Elsaleh continued to have perpetuated pain from the motor accident on the right side. There was no significant anatomical basis but it was likely that she had some triggers being the right-sided whiplash, right-sided strain and facet arthropathy. There did not appear to be any significant neuropathic pain though she had some nerve radicular symptoms. He recommended weaning her off multiple opioids and opined that

Ms Elsaleh required education in respect of flare management and other strategies to cope with her pain.[33]
[33] Insurer's documents at pages 243-246.
On 3 March 2020, Ms Elsaleh consulted Dr Tai-Tak Wan, pain medicine physician, of Liverpool Hospital, Department of Pain Medicine on the referral of Dr Ibrahim. Dr Wan had a history of the motor accident and noted that Ms Elsaleh had been seen by Dr Kodsi. Dr Wan took a history that Ms Elsaleh did not have much pain soon after the motor accident but later experienced pain in the right hip, neck, right arm and the whole right side of her body, including upper and lower limbs. Reported current symptoms included constant sharp neck pain; pins and needles sensation in the right arm; sharp lower back pain with occasional referral into the right leg; right hip pain; headache; and poor sleep. On examination, Dr Wan observed no wasting in the upper and lower limbs. Pain in the upper and lower limbs did not follow any dermatomal distribution or peripheral nerve distribution. Examination of the right shoulder and right elbow were difficult because of pain. Examination of the neck, upper and lower back was normal. Ms Elsaleh complained of some tenderness over the right acromioclavicular joint. Movement of the left shoulder was normal. Examination of the chest and abdomen was unremarkable. Dr Wan concluded that there were obviously a lot of psychosocial features raising yellow flags for chronic pain syndrome. There was no strong indication for using strong opiates. Dr Wan reviewed Ms Elsaleh’s medications.[34]
[34] Insurer's documents at pages 544-547.
On 25 May 2020, Ms Elsaleh consulted Dr Renata Bazina, pain specialist and neurosurgeon, of the Liverpool Hospital, Department of Pain Medicine. Dr Bazina reported to Dr Ibrahim that Ms Elsaleh had consulted four different pain specialists in the department and noted that she had high levels of catastrophisation with complaints of non-specific back and neck pain and secondary chronic widespread pain. Dr Bazina noted that Ms Elsaleh had been involved in a serious motor accident two years earlier and had significant anger and resentment towards the insurer and the legal system. Dr Bazina addressed the use of opioids and opined that Ms Elsaleh required significant work with reframing her thought processes, encouraging positivity and goal-setting. Dr Bazina wrote that Ms Elsaleh “remained stagnant in her cycle of misery”. There was no significant pathology found to date and therefore, pathoanatomical treatments would not have any benefit.[35]
[35] Insurer's documents at pages 273-274.
On 11 August 2020, Ms Elsaleh underwent a bone scan with SPECT CT of the neck and thorax by Dr Ragu Yogaratnam, radiologist, on the referral of Dr Ibrahim. Dr Yogaratnam reported, amongst other things, mild degenerative disease at C5/6 and mild active left C3/4 facet joint disease; no significant arthritis or synovitis in the shoulders but there were such findings in the acromioclavicular joints; and probable degenerative or lumbar facet joint disease on the left of L5/S1.[36]
[36] Insurer's documents at page 561.
On 13 July 2022, Dr Atousa Masoudi, chiropractor, of Chirokinetix Sports Medicine Clinic prepared a report at the request of Ms Elsaleh’s lawyers.[37] Dr Masoudi reported that Ms Elsaleh had not consulted him prior to the motor accident and that she had consulted him on nine occasions since the motor accident, the first being on 10 December 2020. In respect of his clinical findings, Dr Masoudi reported that Ms Elsaleh presented with acute chronic cervical pain right side worse than the left, with referral into the right shoulder. Referral was stated to be in the form of pins and needles. She also complained of headache and lower back pain.
[37] Claimant's documents at pages 290-291.
On examination of Ms Elsaleh’s cervical spine, Dr Masoudi observed that range of motion was restricted in bilateral lateral flexion and left rotation. Kemps test was positive bilaterally. The right side was worse than the left.
On examination of Ms Elsaleh’s right shoulder, Dr Masoudi observed that there was a reduction in range of motion, namely, flexion by 40°, extension by 10°, abduction by 30° and external rotation by 20°. There was notable pain in all ranges. Muscle strength tests of supraspinatus, upper trapezii and pectoralis major were positive.
On examination of Ms Elsaleh’s lumbar spine, Dr Masoudi observed that range of motion was positive for pain on extension and that the Kemps test was positive on the right.
On examination of Ms Elsaleh’s thoracic spine, Dr Masoudi observed that it was positive for pain on right lateral flexion and extension. Further, C4-7 and T2-4 were posterior to anterior pressure positive.
Dr Masoudi recommended further chiropractic treatment and opined that Ms Elsaleh’s injuries had not sufficiently stabilised at the time of his last consultation.

Medico-legal reports

Dr Peter Conrad: 28 October 2020

On 28 October 2020, Ms Elsaleh consulted Dr Peter Conrad, general surgeon, at the request of her lawyers. Dr Conrad prepared two reports dated 28 October 2020.[38]
[38] Claimant’s documents at pages 46-52.

Dr Conrad took a history of the motor accident and a history of the medical and related treatment thereafter from Ms Elsaleh that was, in the main, consistent with the evidence.
In respect of Ms Elsaleh’s current symptoms, Dr Conrad reported complaints of ongoing pain in her cervical spine, pain and restriction of movement of the right shoulder and back pain radiating down the right leg, which was worse when standing, walking and attempting to perform housework. Dr Conrad noted that Ms Elsaleh also had considerable anxiety and depression. She continued to consult her general practitioner. She continued to take medication. She had physiotherapy until the commencement of the COVID-19 epidemic. She continued to undergo psychological counselling.
Dr Conrad noted that Ms Elsaleh had fractured her right ankle about 20 years ago and underwent surgery. The right ankle had settled down. She did not recall any other significant accidents and denied having had any problems with her neck, shoulders or back for which she would have consulted a doctor. She did consult a psychologist prior to the motor accident and had suffered from depression and anxiety.
On examination, Dr Conrad observed a moderate restriction of movement of the cervical spine in an asymmetrical fashion with moderate paravertebral muscle spasm present. There was full movement of the left shoulder. In respect of the right shoulder, movements demonstrated abduction 90°, flexion 90°, adduction 30° and extension 30°. There was no loss of lateral or medial rotation. There were no neurological signs in either area. In respect of the thoracolumbar spine, Dr Conrad observed flexion of the lumbar spine to be hands to knees; straight leg raising 45° with each leg; moderate paravertebral muscle spasm; and no neurological signs in either leg.
Dr Conrad referred to and summarised the medical imaging provided to him.
Dr Conrad noted that Ms Elsaleh was involved in a high-speed motor accident and that, as a result, she sustained a whiplash injury of the neck and discal damage that was clearly demonstrated on an MRI scan. He opined that she also injured her thoracic lumbar spine and recommended an MRI scan of the lumbar spine to rule out any discal damage. He further opined that Ms Elsaleh injured her right shoulder and that an ultrasound demonstrated subacromial bursitis. He recommended an MRI scan of the right shoulder to rule out a more complex injury of the rotator cuff or a labral injury.
Dr Conrad assessed Ms Elsaleh as meeting the criteria for DRE cervicothoracic category II impairment of the cervical spine, which equates to a WPI of 5%.
Dr Conrad assessed Ms Elsaleh as meeting the criteria for DRE lumbosacral category II impairment of the lumbar spine, which equates to a WPI of 5%.
Dr Conrad assessed Ms Elsaleh’s right shoulder using the range of movement model and found a WPI of 7%.
Dr Conrad assessed Ms Elsaleh as having a final WPI of 16%.
In respect of apportionment, Dr Conrad opined that there was no evidence of pre-existing degenerative disease or other accidents and that, therefore, the 16% WPI related directly to the motor accident.

Associate Professor Michael Shatwell: 29 February 2021

On 25 February 2021, Ms Elsaleh consulted Associate Professor Michael Shatwell, orthopaedic surgeon, at the request of the insurer. Associate Professor Shatwell prepared two reports dated 29 February 2021.[39]
[39] Insurer’s documents at pages 24-38.
Associate Professor Shatwell took a history of the motor accident and a detailed history of the medical and related treatment thereafter from Ms Elsaleh that was, in the main, consistent with the evidence.
Associate Professor Shatwell noted that, despite all of the investigations undergone by Ms Elsaleh, she had not been referred for any orthopaedic or neurosurgical opinions regarding her ongoing spinal and right shoulder symptoms. She had not undergone any nerve conduction studies.
Associate Professor Shatwell recorded Ms Elsaleh’s present complaints as follows:
“At the present time, Ms Elsaleh continues to complain of pain in her neck on the right side which is associated with headache and pins and needles in the whole of the right arm. She rates this pain as 10 out of 10 all of the time. There is some improvement with medication with pain diminished to 7 out of 10. On the above pain scale, 0 represents no pain and 10 represents the most severe pain imaginable.
Ms Elsaleh stated this pain is intermittent and comes on spontaneously without provocation. When putting on makeup or holding the phone, she develops numbness and pins and needles in her right arm which is worse in cold weather. The pain is mainly experienced on the right side at the root of the neck and in the right collarbone region.
Ms Elsaleh states she cannot drive for more than half an hour because of the pain. She takes her children to school though her 23-year-old daughter sometimes helps with this.
Ms Elsaleh also complains of back pain in the lumbar region which she rates as 10 out of 10 on the scale defined above.
Her low back pain is in the lumbosacral region, more to the right than the left, with radiation into the right iliac crest and upper thigh. It is described as aching in nature.
Ms Elsaleh is currently taking Tramadol, Lyrica, Panadeine Forte, Nurofen Plus, and Panadol Rapid in a variety of dosage regimes.
Ms Elsaleh stated her sleep is disturbed by pain but she usually retires around 21:00 and rises around 07:30.
Ms Elsaleh cannot sit for more than 5 minutes and cannot stand to cook for more than 15 minutes.
Ms Elsaleh usually shops online but will go shopping for light items and walk for up to 20 minutes providing she takes adequate analgesia.
Ms Elsaleh stated she cannot lift anything heavier than 1kg.
Ms Elsaleh stated she pays for cleaning on occasions but is helped by her daughter who comes around with her 2-year-old to assist her on occasions.
Ms Elsaleh is separated at present and does not have the support of a partner.”[40]
[40] Insurer’s documents at pages 27-28.
On examination of Ms Elsaleh’s lumbar spine and lower limbs, Associate Professor Shatwell observed that she walked with a normal gait and was able to walk on tiptoe and on her heels. She had symmetrical calf girths measuring 36cm on the right and left sides. She had symmetrical thigh girths measuring 42cm, 6cm above the knee on both sides. There was good muscle tone and normal reflex activity in the lower limbs. Single leg stance was not associated with any paraspinal muscle spasm. There was normal lumbar lordosis. Forward flexion was to upper shin level with normal spinal movement. Lateral flexion was to knee joint level on the right and left sides symmetrically. Rotation was limited to 20° to the right and left sides with reports of pain in the lumbosacral region. There was no description of radiation of pain into the lower limbs. Simulated rotation of the lumbar spine produced pain in the same region without movement of the spine. Straight leg raising was negative to 90° in the sitting position. There were complaints of low back pain at 60° straight leg raising in the supine position. There were no nerve root tension signs. There was no sensory disturbance in the lower limbs. Peripheral circulation was normal.
On examination of Ms Elsaleh’s upper limbs, Associate Professor Shatwell observed symmetrical arm girths with the upper arm girths measuring around the maximum point at 29cm on both sides and forearm girths measuring 7cm below the elbow crease at 25cm on both sides. There was no correlation between the extremely low grip strengths in the right hand and the normal muscle bulk in the right forearm, which was identical to that of the left side. There was no objective sensory disturbance in the upper limbs. Peripheral circulation was normal. There was no sign of limitation of movement at elbow or wrist level. There was normal sweating of the palms and finger pulps with no sign of any intrinsic muscle wasting in either hand.
On examination of Ms Elsaleh’s cervical spine and shoulders, Associate Professor Shatwell observed that spinal movements were demonstrated slowly with ranges of flexion 30°, extension 20°, lateral flexion to the right 10°, lateral flexion to the left 10°, rotation to the right 20° and rotation to the left 20°. There were complaints of pain in the right trapezius muscle on rotation and flexion to the right side but no wasting or muscle spasm was observed. There was no complaint of pain radiating from the neck into the upper limbs. Right shoulder girdle movements demonstrated flexion 110°, extension 20°, abduction 100°, adduction 10°, internal rotation 80° and external rotation 60°. Identical movements were demonstrated in the left shoulder.
In respect of the available medical imaging, Associate Professor opined that there were early degenerative changes in Ms Elsaleh’s cervical and lumbar regions which would be common in a female of her age. The CT scans of the spine performed on 7 February 2018 showed no evidence of any acute cervical spinal injury with no soft tissue oedema or malalignment in the cervical or lumbar regions. The clinical findings recorded in the Liverpool Hospital document were not consistent with severe injuries to the spine or limbs.
Associate Professor Shatwell observed:
“Ms Elsaleh complained of a very high level of pain in her neck, back and shoulders without any physical findings to correlate with the pain. There was a considerable degree of illness behaviour associated with the examination today with many inconsistencies between movements observed during the informal part of the examination and those observed during the formal assessment.”[41]
[41] Insurer's documents at page 33.
Associate Professor Shatwell opined that Ms Elsaleh sustained soft tissue injuries to her neck, right shoulder and lumbar regions that would have settled within a few days or weeks following the motor accident.
Associate Professor Shatwell considered that Ms Elsaleh demonstrated gross signs of embellishment and illness behaviour.
Associate Professor Shatwell assessed Ms Elsaleh as having a WPI of 0%.

Medical assessment certificate

Medical Assessor Nel Wijetunga: 25 March 2019

On 25 March 2019, Medical Assessor Wijetunga issued an assessment of minor injury (now known as threshold injury) following an examination of Ms Elsaleh on 21 March 2019.[42]
[42] Insurer's documents at pages 39-49.
Medical Assessor Wijetunga took a history of the motor accident and the symptoms and treatment thereafter that was, in the main, consistent with the evidence. He noted that Ms Elsaleh had undergone steroid injections into her neck and right shoulder twice. She described a reduction of pain in the area of the neck for a few weeks but there was no symptomatic relief from her right shoulder symptoms.
Medical Assessor Wijetunga undertook a clinical examination of Ms Elsaleh’s cervical spine, lumbar spine and upper extremities and recorded his findings. He found no inconsistencies evident on presentation.
Medical Assessor Wijetunga referred to and summarised the relevant documentation and medical imaging provided to him.
Medical Assessor Wijetunga certified that Ms Elsaleh had sustained a whiplash associated disorder of the cervical spine; a musculo-ligamentous strain of the thoracic spine; a musculo-ligamentous strain of the lumbar spine; and subacromial bursitis in the right shoulder caused by the motor accident. He assessed those injuries as minor (threshold) injuries for the purposes of the MAI Act.

SUBMISSIONS

Insurer’s submissions

The insurer provided written submissions in respect of the Medical Assessment dated 25 May 2021.[43] It also provided written submissions in respect of the Review dated 24 July 2023.[44]
[43] Insurer's documents at pages 9-12.
[44] Insurer's documents at pages 1-5.
The insurer sought a review of the Medical Assessment on the following basis:
(a)    there was a failure to consider Ms Elsaleh’s pre-existing injuries;
(b)    there was a failure to consider relevant evidence;
(c)    there was a failure to have regard to the insurer’s submissions, and
(d)    there was a failure to engage in the insurer’s clearly articulated arguments on causation.
The insurer relied on the report of Associate Professor Shatwell dated 29 February 2021.
The insurer submitted that the report of Dr Conrad dated 28 October 2020 was unreliable and had to be treated with caution. Dr Conrad did not consider Ms Elsaleh’s pre-existing conditions when assessing her whole person impairment.
Ms Elsaleh had a history of lumbar spine injury and symptoms prior to the motor accident. On 29 October 2014, she reported to her general practitioner that she had picked up an air conditioner and fallen backwards causing ongoing pain in her lower back. She was tender in the L3/4 left facet joint and paravertebral region and her back range of movement was restricted. An X-ray of her lumbar spine on 8 May 2015 revealed facet joint degenerative disease at the lower lumbar levels. Such history is relevant in the context of an assessment of permanent impairment and whether that impairment is related to the motor accident.
In the Liverpool Hospital discharge referral dated 8 February 2020, there was no reference of complaints of lumbar spine pain by Ms Elsaleh. The first complaint of back pain was made to her general practitioner on 16 February 2018. On 24 August 2018, Ms Elsaleh reported to her general practitioner that her back pain was better. Thereafter, she intermittently referred to “on and off” back pain.
Any current symptoms experienced by Ms Elsaleh in the lumbar spine is related to her pre-accident degenerative disease condition.
At most, Ms Elsaleh sustained a soft tissue injury to the lumbar spine in the motor accident, which would have resolved within weeks. There was no permanent impairment of her lumbar spine caused by the motor accident.
A CT scan of Ms Elsaleh’s cervical spine performed on the day of the motor accident revealed no evidence of traumatic injury. There was no acute cervical spine fracture, dislocation or arterial injury. An MRI scan of her cervical spine on 14 April 2018 revealed a minimally narrowing left exit neural canal at C5/6 with possible contact/irritation of the exiting left C6 nerve root, mild bilateral facet joint degenerative change at C5/6 and C6/7 and a minimal disc bulge at C5/6 with no associated cord compromise.
The insurer submitted that any reporting of symptoms by Ms Elsaleh should be treated with caution due to the many inconsistencies observed by Associate Professor Shatwell. At most, Ms Elsaleh sustained a soft tissue injury to the cervical spine in the motor accident, which would have resolved within weeks. There was no permanent impairment of her cervical spine caused by the motor accident.
On 8 February 2018, Ms Elsaleh underwent shoulder X-rays which demonstrated no abnormality. An ultrasound of the right shoulder on 13 April 2018 revealed subacromial bursitis and bursal impingement on abduction only. The rotator cuff tendons were intact and there was no glenohumeral joint effusion. An X-ray of the right shoulder on 23 May 2018 showed moderate osteoarthritic changes in the acromioclavicular joint and no other abnormalities. The insurer submitted that the pathology indicated in the above-mentioned medical imaging was evidence of degenerative changes only and therefore, unrelated to the motor accident.
At most, Ms Elsaleh sustained a soft tissue injury to the right shoulder in the motor accident, which would have resolved within weeks. Any right shoulder injury causally related to the motor accident had not resulted in any permanent impairment.
In a certificate dated 25 March 2019, Medical Assessor Wijetunga diagnosed Ms Elsaleh with a musculoligamentous strain of the thoracic and lumbar spine, subacromial bursitis of the right shoulder and a whiplash associated disorder of the cervical spine. He assessed Ms Elsaleh’s injuries as minor (now known as threshold) injuries.
In conclusion, the insurer submitted that any injury deemed to have been caused in the motor accident did not result in a permanent impairment. In any event, any permanent impairment assessed to be sustained by Ms Elsaleh did not exceed the 10% WPI threshold.

Ms Elsaleh’s submissions

Ms Elsaleh’s lawyers provided undated written submissions in respect of the Medical Assessment.[45] They also provided undated written submissions in respect of the Review.[46]
[45] Claimant’s documents at pages 5-12.
[46] Claimant’s documents at pages 1-4.
Ms Elsaleh rejected the insurer’s stated grounds for the Review and provided reasons for so doing.
Prior to the motor accident Ms Elsaleh’s medical history was unremarkable.
On 7 February 2018, Ms Elsaleh was the driver of a motor vehicle travelling at about 90kmph on a motorway when a truck merged into her lane and collided with the vehicle she was driving. The collision caused her vehicle to spin around about five times and then hit a wall head on. All eight airbags deployed. Ms Elsaleh suffered physical and psychological injuries caused by the motor accident.
Since the motor accident, Ms Elsaleh made continuous and regular attendances on general practitioners, physiotherapists, chiropractors and hospitals for the management of her injuries and pain. Ms Elsaleh’s pain and symptoms persist.
At Liverpool Hospital on 7 February 2018, Ms Elsaleh reported neck pain, chest pain, right hip pain, right shoulder and arm pain and she was referred to her general practitioner for follow-up.
On 8 February 2018, Ms Elsaleh consulted Dr Kbar reporting pain in her neck, right shoulder, right lower abdomen and back.
On 9 February 2018, Dr Kbar observed a rigidly decreased range of movement of Ms Elsaleh’s neck; chest wall tenderness; central abdomen and suprapubic region tenderness.
On 10 February 2018, Dr Kbar diagnosed Ms Elsaleh with neck pain whiplash, lethargy and post-traumatic stress disorder symptoms.
Since 13 February 2018, the clinical records disclosed that Ms Elsaleh attended on Dr Ibrahim on a regular basis and recorded her complaints of chronic pain around her neck, back and right shoulder.
The MRI scan of Ms Elsaleh’s cervical spine on 13 April 2018 demonstrated narrowing of the left exit neural canal at C5/6 with possible contact/irritation of the exiting left C6 nerve root; bilateral facet joint degenerative changes at the C5/6 and C6/7 joints; and a disc bulge at C5/6. An ultrasound of her right shoulder on the same date demonstrated the thickening of the subacromial bursa with bursal bunching with adduction associated with pain. Dr Conrad took these findings into account when preparing his report.
An X-ray of Ms Elsaleh’s right shoulder on 23 May 2018 demonstrated moderate osteoarthritic changes in the acromioclavicular joint.
A CT scan of Ms Elsaleh’s cervical spine on 18 January 2019 demonstrated mild to moderate facet joint degenerative change bilaterally at C3/4 and mild bilateral facet degenerative changes at the remaining levels with the exception of the C5/6. There was a mild posterior disc bulge at C5/6 with mild narrowing of the neural exit foramina bilaterally.
Ms Elsaleh’s ongoing complaints of pain and limited range of motion were consistent with the findings in Medical Assessor Wijetunga’s certificate dated 25 March 2019; Dr Conrad’s report dated 28 October 2020 and Dr Shatwell’s report dated 29 February 2021.
Ms Elsaleh relied on Dr Conrad’s report dated 28 October 2020.
The consistent findings of a limited range of motion in her neck, right shoulder and lower back are evidence that Ms Elsaleh’s prognosis is guarded as a direct consequence of the motor accident.
The physical injuries sustained by Ms Elsaleh in the motor accident resulted in a WPI that is greater than 10%.

THE RE-EXAMINATION

Preamble

The Panel re-examination and assessment of Ms Elsaleh was jointly undertaken at Hornsby on 7 February 2024 by Medical Assessor Barnsley and Medical Assessor Cameron.
Ms Elsaleh attended unaccompanied.

Past history

Ms Elsaleh had a history of an old ankle fracture with operative treatment.

The general practitioner records reported a fall in 2015 with an injury to the back following which, she had some lumbar X-rays performed. However, there was no history or record of any persistent low back pain and she denied any low back pain at the time of the motor accident.
Ms Elsaleh stated that she was very active prior to the motor accident. She said that she may have taken weight loss medication.
Ms Elsaleh was working as a cleaner.

History of injury

Ms Elsaleh was the driver of a vehicle on a freeway. She was driving home after dropping her children at school. A truck hit her vehicle from behind and her vehicle spun. She thought she hit another vehicle and hit the centre barrier. There were multiple impacts. She feared for her life and said that she was jolted severely.
The airbags deployed and the vehicle was written off. Due to smoke, she exited the vehicle with assistance.
The ambulance attended and Ms Elsaleh said that, initially, she felt okay. She was conveyed to Liverpool Hospital and she said that she had an overnight admission. She said there were multiple sites of pain. There was neck pain, right shoulder region pain and right lateral pelvic pain and there was abdominal pain with vaginal bleeding. She said that she had to leave hospital to care for her children.
Ms Elsaleh then consulted her general practitioner, Dr Ibrahim.
Ms Elsaleh stated that low back pain commenced soon after the motor accident.
There was treatment with analgesics and other medications. Opioid analgesics were used. Lyrica was used.
Ms Elsaleh has not returned to work. She has attended a pain clinic.

Current status

Ms Elsaleh reported continuing neck and back pain. The neck pain is the worst pain. There is tenderness on the right side of the neck. There is also right clavicular tenderness. The neck pain radiates to the head posteriorly. The pain limits sleeping. There is intermittent right arm numbness and tingling in the distribution of the right ulnar nerve. Ms Elsaleh said that she could not sleep on the right side.
Currently, there is pain in the region of the right shoulder posteriorly. There is low back pain. Some leg soreness without neurological features was reported. Sitting for a long time is not possible because of her back symptoms.
Ms Elsaleh is driving. She finds repetitive movement of the right upper extremity difficult. As a result, she has assistance with household tasks.
Residing in her home are her 17, 12 and 11-year-old children.
Current medications are CBD oil, Lyrica 25mg, Voltaren and Nurofen.
Ms Elsaleh continues to consult Dr Ibrahim and a psychologist.
Ms Elsaleh is retraining and hopes to return to work.

Examination

Ms Elsaleh is right-handed, 165cm tall and is approximately 75kg in weight.
Ms Elsaleh changed her position regularly. She was intermittently distressed when talking about the motor accident.
Ms Elsaleh had diffuse tenderness posteriorly over the cervical spine. There was no guarding or spasm. There was tenderness over the right sternoclavicular and right acromioclavicular joints. At the cervical spine, there was moderately and symmetrically reduced range of motion (to 70% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, and no non-verifiable radicular complaints.
At the left shoulder, there was a full range of movement.
At the right shoulder, there was inconsistent movement that Ms Elsaleh said was due to variable pain. The maximum observed movements were abduction 90°, adduction 30°, flexion 100°, extension 40°, external rotation 80° and internal rotation 70°.
In the upper extremities, there were no neurological abnormalities. Give-way weakness was present on the right side. Sensory changes were reported on the right side in a

non-dermatomal pattern. Circumference of the upper extremities were 31.5cm on the left and 32cm on the right measured 10cm above the lateral epicondyle and 27cm bilaterally measured 10cm below the lateral epicondyle.
At the thoracic spine, there was mildly and symmetrically reduced range of motion (to 80% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria and no
non-verifiable radicular complaints.
At the lumbar spine, there was moderately and asymmetrically reduced range of motion (to 70% normal generally but with greater restriction in flexion than extension) with no muscle spasm, no muscle guarding, no non-verifiable radicular complaints present. Nerve tension signs were negative.
In the lower extremities, there were no neurological abnormalities. Circumferences of the lower extremities were 44cm bilaterally measured above the knee and 39cm on the left and 38cm on the right when measured below the knee. No musculoskeletal abnormalities were detected in the lower extremities. Ms Elsaleh had no gait abnormality.
There were no imaging studies to review.

CAUSATION AND REASONS

The Panel noted that Ms Elsaleh had been involved in a high speed motor accident with activation of multiple airbags and that she had been subjected to several impacts. There was no history of preceding symptoms within a reasonable time prior to the motor accident to suggest any prior impairment.
The Panel, therefore, considered that the motor accident could have caused injury to the cervical spine, the lumbar spine and the right shoulder.
The absence of symptoms in these areas prior to the motor accident and the prompt development of and persistence of symptoms, persisting disabilities and need for ongoing treatment since the motor accident would indicate, on the balance of probabilities, that the accident did contribute to Ms Elsaleh’s current symptoms to an extent that is more than negligible.

DIAGNOSIS

Based on the findings on physical examination and the documents in evidence, the Panel finds that the following injuries were caused by the motor accident:
(a)    cervical spine – soft tissue injury;
(b)    lumbar spine – soft tissue injury, and
(c)    right shoulder – soft tissue injury.

PERMANENCY OF IMPAIRMENT

Permanent impairment is defined by the AMA 4 Guides as impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment. A permanent impairment is considered to be unlikely to change substantially, that is, by more than 3% WPI in the next year with or without medical treatment.[47]
[47] AMA 4 Guides at page 315 and cl 6.19 of the Guidelines.
The Panel considered the question of permanency of impairment and is satisfied that Ms Elsaleh’s injuries caused by the motor accident have stabilised and are permanent within the meaning of the above definition.

DEGREE OF PERMANENT IMPAIRMENT

Cervical spine

Ms Elsaleh has complaints of pain in the cervical spine without any features of radiculopathy or non-verifiable radicular symptoms. There is no dysmetria, guarding or spasm. Therefore, she meets criteria for DRE cervicothoracic category I impairment of the cervical spine, which equates to a WPI of 0%.

Lumbar spine

Ms Elsaleh has complaints of pain in the lumbar spine without any features of radiculopathy or non-verifiable radicular symptoms. There is some dysmetria on flexion versus extension. Therefore, she meets criteria for DRE lumbar spine category II impairment of the lumbar spine, which equates to a WPI of 5%.

Right upper extremity (shoulder)

Repeated measurements of the right shoulder revealed inconsistent ranges of movement that were unable to be resolved from Ms Elsaleh’s explanation or repeated examination. Therefore, the Panel applied cl 6.50(d) of the Guidelines, and range of motion was not used to assess upper limb impairment. The Panel opted to assess right shoulder impairment by analogy with impairment from inconstant joint crepitation at the acromioclavicular joint. Using tables 18 and 19 of the AMA 4 Guides, this represents 10% impairment of a joint in which 100% would represent 15% WPI, which converts to 1.5% WPI, which rounds up to 2% WPI in respect of the right shoulder.

Pre-existing or subsequent impairment

The Panel finds that there was no history of preceding symptoms within a reasonable time prior to the motor accident to suggest any prior impairment. The Panel accepted Ms Elsaleh’s denial of any low back pain immediately prior the motor accident.
There was no evidence of any subsequent impairment.
Accordingly, the Panel finds apportionment of impairment irrelevant.

Assessment of permanent impairment

The Panel assesses Ms Elsaleh’s permanent impairment as follows:
(a)    current WPI: 7%;
(b)    pre-existing WPI: 0%, and
(c)    subsequent WPI: 0%.
Accordingly, the Panel assesses Ms Elsaleh’s final WPI as 7%.

FINDINGS

The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[48] and Insurance Australia Ltd v Marsh.[49]
[48] Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45].
[49] Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21], [64].
The Panel adopts the re-examination findings and conclusions of Medical Assessor Barnsley and Medical Assessor Cameron based on their examination and specific findings pertaining to diagnosis, causation and assessment of permanent impairment.
The Panel determines that Ms Elsaleh sustained a soft tissue injury to the cervical spine, a soft tissue injury to the lumbar spine and a soft tissue injury to the right shoulder caused by the motor accident.
The Panel revokes the certificate issued by Medical Assessor Berry dated 15 June 2023.
The Panel determines that the injuries caused by the motor accident give rise to a WPI which is not greater than 10%, that is, 7%.

CONCLUSION

The Panel’s determination is set out in the Certificate of Determination attached to this Statement of Reasons.

[2024] NSWPICMP 351

30 May 2024