QBE Insurance (Australia) Limited v Farag

[2025] NSWPICMP 206

DETERMINATION OF REVIEW PANEL

CITATION:

QBE Insurance (Australia) Limited v Farag [2025] NSWPICMP 206

CLAIMANT:

Andrew Farag

INSURER:

QBE Insurance (Australia) Ltd

REVIEW PANEL

MEMBER:

Elizabeth Medland

MEDICAL ASSESSOR:

David Gorman

MEDICAL ASSESSOR:

Christopher Oates

DATE OF DECISION:

26 March 2025

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; medical review of medical assessment as to whether the permanent impairment as a result of the injury caused by the motor accident is greater than 10%; claimant is a 34-year-old male who suffered injury when the vehicle he was driving was hit by another vehicle on the passenger side; original medical assessment found a 19% whole person impairment (WPI) from injuries to the left and right shoulder, cervical spine, and lumbar spine; inconsistencies found; whether range of movement appropriate measure of impairment of the shoulders; Held – Review Panel found inconsistencies mean that impairment to be assessed by analogy; DRE I found in respect of cervical and lumbar spine; WPI assessed at 5%; Medical Assessment Certificate revoked.

DETERMINATIONS MADE:  

CERTIFICATE OF DETERMINATION

The Review Panel:

1.     Revokes the certificate of Medical Assessor Bodel dated 29 May 2024.

2.     Certifies that the following injuries give rise to a whole person impairment that is not greater than 10% and is 5%:

·        cervical spine;

·        lumbar spine;

·        left shoulder, and

·        right shoulder.

STATEMENT OF REASONS

INTRODUCTION

1. Mr Andrew Farag, (the claimant) is a 34-year-old male who suffered injury on

   
   

   29 November 2015.  The claimant was a driver of a vehicle that was hit by another vehicle on the passenger side.   

2. A claim was lodged upon QBE Insurance Australia Limited (the insurer) who is the insurer of the vehicle considered at fault for the motor accident. The insurer has a liability to pay damages under the Motor Accidents Compensation Act 1999 (MAC Act).  

3. The issue in dispute is whether the degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%.  This constitutes a medical dispute within the meaning of ss 57 and 58 of the MAC Act.

4. Section 44(1)(c) of the MAC Act provides that the Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.

5. The Motor Accident Permanent Guidelines (the Guidelines) adopt the fourth edition of the American Association’s Guides to the Evaluation of Permanent Impairment (AMA 4) (the Guides). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive: see cl 1.2 of the Guidelines.

6. A medical assessment matter is determined in accordance with Part 3.4 of the Act. This means that the matter is determined at first instance by a Medical Assessor (see s 60 of the MAC Act) and, pursuant to s 63 of the MAC Act, on review by a review panel.

THE REVIEW

1. The insurer sought a review of the medical assessment of Medical Assessor Bodel dated
   29 May 2024. On 30 July 2024, the President’s delegate determined, pursuant to s 63(2B) of the MAC Act, that there was reasonable cause to suspect the medical assessment was incorrect in a material respect. As such the review application was accepted and referred to a Review Panel (the Panel).

2. Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (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 this review, was made on or after 1 March 2021, the new review provisions apply.

3. Section 41(2) of the PIC Act provides that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).

4. Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.

5. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the 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 matter solely based on the written application: r 128 of the PIC Rules.

6. The review of the medical assessment is by way of a new assessment of all matters with which the medical assessment is concerned: see s 63(3A) of the MAC Act.

7. The Panel held a teleconference on 3 October 2024: and it was determined that a re-examination was required and was arranged to occur on 30 November 2024 with Medical Assessor Gorman at the Commission’s Medical Suites.

8. The Panel reconvened via teleconference on 4 December 2024.   However, in the background the claimant made submissions requesting that application be dismissed on the basis that there was no longer a dispute as to the claimant’s entitlement to non-economic loss due to medical assessment of Medical Assessor Canaris who certified the claimant’s accident related psychological injuries to give rise to a whole person impairment that was greater than 10%.

9. Several messages and submissions were made in respect of this dispute and eventually a teleconference was arranged between the parties and Member Medland on
   27 February 2025.  The claimant’s representative indicated at the teleconference that on the advice of counsel the request that the application be dismissed is withdrawn.  The parties confirmed that they were content with the Panel issuing a determination. 

ASSESSMENT UNDER REVIEW

1. Medical Assessor Bodel found a 19% whole person impairment due to injuries caused by the motor accident.

2. He found the claimant’s clinical presentation as being inconsistent, particularly in respect of the objective signs as compared to the demonstrated range of motion of the shoulders. However, he found that the observed restricted range of neck and back movements represented dysmetria and asymmetry of movement as a genuine finding. 

3. He diagnosed the claimant as suffering soft tissue injuries to the neck and back and a probable rotator cuff injury to the right shoulder.  The left shoulder injury was certified as resolved.

4. He found a DRE Category II in both the neck and back attracting a 5% impairment each.  He found a 10% whole person impairment in respect of the right shoulder.

Previous medical assessments

1. The claimant was initially assessed by Medical Assessor Nigel Marsh who issued a certificate dated 7 September 2017. Whole person impairment was assessed at 3%.  He found a musculoligamentous strain of the neck and a soft tissue injury with contusion of the right shoulder which was resolved.  He found restricted range of movements related to the neck injury in both the left and right shoulder.

2. He found a 1% impairment of the left shoulder and a 2% in respect of the right shoulder.

3. In respect of the back he found that the claimant did not suffer a low back injury caused by the accident with note that there was an absence of contemporaneous evidence of any injury to the low back.

4. The claimant subsequently lodged an application for further medical assessment relying on MRI scan of the lumbar spine and a medico legal report of Dr Dias dated 16 May 2023.  This further application resulted in the assessment of Medical Assessor Bodel.

SUBMISSIONS

Insurer’s review submissions dated 13 June 2024

1. The insurer submits that Medical Assessor Bodel was in error utilising the range of movement calculations in light of the inconsistencies he observed.  Particularly given the complaints in the upper limbs were non-anatomical.

2. It is further submitted that there is no evidence that the Medical Assessor utilised a goniometer and it should be inferred that he failed to do so and therefore did not comply with the requirements of AMA4.

3. It is also submitted the Medical Assessor failed to correctly apply Table 8 of the Guidelines in assessing the cervical spine and lumbar spine.

Claimant’s submissions dated 5 July 2024

1. The claimant refutes the suggestion the Medical Assessor failed to properly applied cl 1.40 of the Guidelines in respect of using his entire gamut of clinical skill and judgment in assessing whether or not the results of measurements or tests available.

2. The claimant notes that the Medical Assessor did take into account the lack of contemporaneous complaint, but did not treat that as determinative in respect of causation (see: AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen [2016] NSWCA 229).

3. In respect of the insurer’s argument that range of motion assessment was not appropriate in light of inconsistencies, the claimant relies on the case of Wellman v CIC Allianz Australia Limited [2019] NSWSC 1353 where it was found that assessment of impairment involves matters of evaluation and judgment by the Medical Assessor.

4. In respect of assessment of the lumbar and cervical spine, the claimant argues the Medical Assessor was not in error when there were findings of guarding to satisfy DRE category II.

DOCUMENTATION

Ambulance report

1. The claimant initially refused ambulance assessment, but later complained of left sided lateral neck pain.  He was noted to have nil midline cervical pain or other spinal pain. Nil pain was noted when moving head to right or left.  Nil loss of consciousness is noted.

Personal injury claim form

1. The claim form lists injuries to the brain, head, back and spine.

Clinical records

1. Some handwritten notes of Dr Lam are included.  A note of 10 March 2016 refers to the motor accident.  The notes are largely illegible.  However, it is apparent that the claimant stated that he had a stiff neck at the time but declined to go to the hospital.

2. Dr Hameed saw the claimant on 1 April 2016 when complaints of back, neck and right shoulder pains are recorded.  A history of the motor vehicle accident is given.  It is noted that since the accident the claimant presents with whiplash sequelae and headache and neck pain with radiculopathy.

3. The claimant makes consistent complaints of neck and back pain thereafter and was referred for MRI scans in May 2016.  Numbness and tingling radiating down the leg was noted on

   
   

   17 June 2016.

4. Notes of Casula Central Medical Centre are included that begin in 2019.  On 9 June 2020 he presented with lower back pain radiating to both legs.  He requested prescription pain killers.

5. Notes from Liverpool Family Medical Centre includes a note from October 2019 which deals with psychological disturbances.

6. In an initial report of Campsie Physiotherapy and Rehabilitation Centre dated 8 June 2016 it is recorded the claimant has suffered neck, upper and lower back pain since the motor accident.  He was discharged from treatment as at 1 August 2016 due to the claimant starting a gym based exercise program.

Dr Khawaja, neurosurgeon

1. In a report dated 22 October 2016, Dr Khawaja records a history of initial neck pain after the accident and over the next couple of weeks the claimant started having lower back pain which slowly got worse.  The pain was noted to radiate to both legs, right more than left.  Examination revealed tenderness on the upper cervical region and the mid to lower lumbar area.  There was no gross neurological deficits.

Medico-legal reports

1. Dr Breit in a report dated 2 September 2024 to the insurer’s lawyers found no permanent impairment with the features being inconsistent with organic pathology and that the “cause of his current presentation is open to conjecture.” ¹

2. Professor Fearnside in a report dated 3 February 2017 addressed to the claimant’s representatives found the claimant suffered soft tissue injuries to the neck and low back and injuries to the shoulders as a result of the accident. It was opined that the injury to the right shoulder was likely a direct injury because it struck the door of the car and the injury to the left shoulder was likely a secondary injury to the neck injury.  He found a 19% whole person impairment (5% neck, 5% lumbar spine, and 5% each shoulder).

3. Dr Dias in a report to the claimant’s lawyers dated 16 May 2023 found the claimant to have continuing pain and symptoms in his neck, lower back and right shoulder.  He found the claimant to have suffered aggravation to previously asymptomatic minor degenerative cervical spondylosis and right upper limb sensory symptomatology (non-specific) secondary to a whiplash injury.

4. Also diagnosed was lumbar spine pain, stiffness and discomfort with associated persisting right L5 radiculopathy secondary to a musculoligamentous strain with associated L4/L5 disc protrusion.

5. A chronic right shoulder impingement syndrome secondary to an acute rotator cuff tendon strain was also diagnosed.  The left shoulder soft tissue injury was noted to have resolved.

6. It was opined that 90% of the claimant’s symptoms and disabilities were attributable to the motor accident with 10% attributed to pre-existing constitutional degenerative changes in the cervical spine region.

EXAMINATION

Who attended the assessment

1. Mr Farag attended with his father. The decision dated 29 August 2024 that he is a person who has a legal incapacity.

HISTORY

Pre-accident medial history and relevant personal details

1. Mr Farag is a 34-year-old man. He could not recall when he last worked. It is noted from the records that he had been working as a client manager for Suncorp and it varied between full-time and part-time, he was also studying law at Macquarie University. He had resigned from Suncorp in September 2015 and was not working at the time of the accident on

   
   

   29 November 2015.

2. He was previously well from the physical point of view with no injuries. He was active enjoying skiing, bicycle riding and hiking.

3. He lives with his wife. They have no children. He is a non-smoker and does not drink alcohol.

History of the motor accident

1. On 29 November 2015, Mr Farag had a green arrow and was following another vehicle making a right hand turn when a Range Rover coming from the opposite direction apparently went through the red light and hit the side of his Peugeot 204 - all the airbags were deployed, all the windows were broken or popped out and the vehicle was later written off.

2. Police and ambulance did attend, but he did not go to hospital because by that time his family had arrived at the scene and he went home. He had pain in the neck, low back, shoulders and arms.

History of symptoms and treatment following the motor accident

1. Mr Farag could not recall when he saw a general practitioner. Initially, he saw Dr Han who apparently lives close by, but this problem was later managed by Dr Ban Hameed. The Accident Claim Form was not completed until 9 May 2016.

2. He had analgesics including Panadeine Forte.

3. He also had a period on medicinal cannabis.

4. Initially, there were some 16 sessions of physiotherapy and he continued with his exercises. He was seen by an exercise physiologist.

5. He saw a neurosurgeon, Dr Al-Khawaja in October 2016, who suggested he have a bone scan with SPECT studies and for him to see a sports physiotherapist.

6. He later continued treatment with a chiropractor.

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

1. There have not been any relevant physical conditions sustained since the motor accident, but he has had psychological conditions develop.

Current symptoms

1. He reported that the right side of his body is “really weak”.

2. He has right arm pain.

3. He has numbness and stiffness on the right side. He feels that he has “nerve damage”. There was no specific localised shoulder pain.

4. He has “stiffness in the back”. There is low back pain. There is pain down the right leg.

5. Sitting for too long aggravates the pain.

6. There have been episodes where he has been “paralysed” and could not move because of the pain. He has been taken by family members to the Emergency Department at Fairfield on these occasions where he had “so much pain in the legs and right arm that he could not move”.

7. He stated that he is very depressed and struggles to calm himself down. He stated that he has become very unhappy and aggressive. He said that he is “angry with the people around him”.

8. He does no cooking or shopping – it is “too aggravating” he states. His wife does these and the other household tasks. She also works.

9. He mainly sits on the couch and watches You Tube he stated.

Current treatment

1. He remains on Cymbalta 60mg daily, Panadeine Forte two per day, paracetamol as needed, CBD oil, Temaze and Melatonin.

CLINICAL EXAMINATION

General

1. His height was 177cm and his weight 118.5kg.

2. He moved normally around the examination area.

3. His speech was normal and he smiled appropriately.

4. He moved his neck normally when moving around.

Cervical spine

1. During the formal examination his cervical spine had markedly reduced movement in all planes to 1/5 normal. There was no muscle spasm or neck tenderness. There was no muscle spasm or guarding.

2. There was a subjective decrease in sensation in a non-dermatomal distribution in the whole of the right arm. Upper limb power and reflexes were normal.

Lumbar spine

1. In the lumbar spine he had markedly reduced movements in all planes to ¼ normal.

2. There was no muscle spasm or guarding.

3. There was decreased sensation in the right leg in a non-dermatomal distribution. There was “give way” weakness of knee extension and foot dorsiflexion – I noted that he could stand on his tip toes and heels normally. Reflexes were normal.

Upper extremities

1. He had restricted range of movement in both upper limbs as outlined below.

2. His shoulders were limited in range of motion. On the left he could reach the T12 spinous process and on the right the buttock only.

3. The ranges of motion were variable. The three ranges observed are listed with the maximum achieved listed last.

SHOULDER MOVEMENT	Right (degrees)	Left (degrees)
Flexion	50, 60, 80	80, 90, 120
Extension	10, 10, 20	10, 10 30
Adduction	10, 10, 20	20, 20, 30
Abduction	40, 50, 70	60, 70, 100
Internal rotation	40, 50, 70	40, 60, 80
External rotation	60, 60, 70	50, 60, 80

1. He was asked regarding the cervical spine and left shoulder in particular why this was different from the previous assessments – he was not sure why.

Comment on consistency

1. He was inconsistent in ranges of movement in the cervical spine and shoulders in particular.

INVESTIGATIONS

1. On 11 March 2016, X rays - lateral cervical flexion and extension views – normal.

2. On 11 March 2016, Cervical CT – There are disc osteophyte complexes at right C3/4 margin potentially impinging on the right C4 nerve root and similarly in the level below.

3. On 1 May 2016, Cervical MRI - This confirms the stenosis at C3/4 only.

4. On 11 May 2016, Lumbar MRI - There is a mild broad-based L4/5 disc bulge with some potential narrowing of the outlet, but there is no neural impingement and he does have some facet arthritis.

DETERMINATIONS – PERMANENT IMPAIRMENT

Diagnosis and reasons

1. Mr Farag suffered soft tissue injuries to the cervical and lumbar spine as well as the right and left shoulder. He took 4-5 months to present for GP review after the accident.

2. His presentations since that time have usually shown greater restriction in the right shoulder compared with the left. However, the assessments have shown significant inconsistencies and there have not been any shoulder investigations at all. Medical Assessor Bodel in his Certificate stated that the left shoulder injury had resolved, in addition to Professor Fearnside making similar findings – however, in this examination he could not move his left shoulder normally despite encouragement.

3. The Panel notes that Medical Assessor Bodel in his Certificate of 29 May 2024 made extensive reference to inconsistencies but stated that “I have used all of the skills required to optimise the assessment of his clinical circumstances in accordance with the motor Accident Authority Guidelines”. The Panel believes that these inconsistencies cannot be ignored.

Causation and reasons

1. The claimant’s delay in presentation raises questions as to the severity of his injuries. There has also been considerable inconsistency in presentations – for example, Medical dAssessor Marsh felt that the right shoulder injury had resolved whereas some years later, Dr Bodel felt that the left shoulder had resolved. However, he gives a history of pain in the neck, low back and shoulders and therefore the Panel believes that there were soft tissue injuries in these regions.

PERMANENCY OF IMPAIRMENT

1. The accident was almost nine years ago. He is not having any specific treatment. The Panel believes that any impairment is permanent and unlikely to change by more than 3% over the next 12 months.

PERMANENT IMPAIRMENT

1. Cervical spine – he has ongoing pain and reduced movement but this is symmetrical and the symptoms in the right upper limb are not non-verifiable radicular symptoms as they are not dermatomal but generalised. There was no guarding. There is no radiculopathy. He has a DRE category I impairment giving him a WPI of 0% based on Table 73 on page 110 of AMA 4.

2. Lumbar spine – he has ongoing pain and reduced movement but this is symmetrical and the symptoms in the right lower limb are not non-verifiable radicular symptoms as they are not dermatomal but generalised. There was no guarding. There is no radiculopathy. He has a DRE I impairment giving him a WPI of 0% based on Table 72 on page 110 of AMA 4.

3. Right shoulder – the range of movement is variable and cannot be relied upon for impairment assessment. The Panel notes that while his previous assessments have been similarly inconsistent, it is usually the right shoulder which has restriction in movement. Therefore, by analogy, we believe that the impairment would be similar to having severe crepitation in the acromioclavicular joint. Using Table 18 on page 58 and Table 19 on page 59 he therefore has a 5% upper extremity impairment. This equals a 3% WPI based on Table 3 on page 20.

4. Left shoulder – the range of motion is variable and cannot be relied upon for impairment assessment.  The Panel notes that while his previous assessments have been similarly inconsistent, the left shoulder has often been restricted in movement as it was with Medical Assessor Gorman’s examination. It has usually been less restricted than the right. Therefore, by analogy, we believe that the impairment would be similar to having moderate crepitation in the acromioclavicular joint. Using Table 18 on page 58 and Table 19 on page 59 he therefore has a 3% upper extremity impairment. This equals a 2% WPI based on Table 3 on page 20.

PERMANENT IMPAIRMENT TABLE

Body Part or System	AMA Guides/ Guidelines References (chapter/ page/table)	Permanent (YES/NO)	Current %WPI*	%WPI* from pre-existing OR subsequent causes	%WPI* due to motor accident
1	Cervical spine	Table 73 on page 110	Yes	0%	0%	0%
2	Lumbar spine	Table 72 on page 110	Yes	0%	0%	0%
3	Right shoulder	Table 18 on page 58 and Table 19 on page 59; Table 3 on page 20.	Yes	3%	0%	3%
4	Left shoulder	Nil relevant	Yes	2%	0%	2%

*  %WPI = percentage whole person impairment

CONCLUSION – PERMANENT IMPAIRMENT

1. The degree of impairment caused by the motor accident is 5% which is less than 10%.

2. The certificate of Medical Assessor Bodel is revoked and a issued a new certificate at the beginning of these reasons.