QBE Insurance (Australia) Limited v Wardah

DETERMINATION OF REVIEW PANEL
CITATION:	QBE Insurance (Australia) Limited v Wardah [2025] NSWPICMP 366
CLAIMANT:	Zoher Wardah
INSURER:	QBE (Insurance) Australia Limited
REVIEW PANEL
MEMBER:	Terence O’Riain
MEDICAL ASSESSOR:	Thomas Rosenthal
MEDICAL ASSESSOR:	Clive Kenna
DATE OF DECISION:	26 May 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); insurer’s application; review of permanent impairment assessment greater than 10%; insurer denies accident nexus with all referred injuries being cervical and lumbar spine with bilateral shoulders; denial based on scans showing degeneration and injury in referred parts and medico-legal specialist opinion on accident mechanism; Medical Assessor found all injuries had causal nexus with accident and assessed 17% permanent impairment; re-examination; credit; Held – Review Panel was satisfied that the accident caused or materially contributed to the referred injuries; contemporaneous complaints about neck, lower back, and bilateral shoulders; Review Panel assessed permanent impairment resulting in 11% permanent impairment; MAC revoked; new certificate issued.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. The Review Panel has found the accident caused injuries with a percentage permanent impairment of 11%. The total whole person impairment is greater than 10%. 2. The Review Panel’s permanent impairment assessment provided a different outcome to Medical Assessor Home’s certificate dated 12 August 2024. 3. Accordingly, the Review Panel will revoke that certificate and issue a new permanent impairment certificate.

STATEMENT OF REASONS

BACKGROUND

Zoher Wardah (claimant) was injured in a motor accident on 30 August 2019. The insurer accepted liability for the damages arising from injuries caused by the accident under the Motor Accident Injuries Act 2017 (MAI Act).
There is a dispute between the parties about the degree of the claimant's permanent impairment resulting from injuries caused by the accident. The claimant referred the dispute to the Personal Injury Commission (Commission) following s 2 (a) of schedule 2 of the MAI Act for a Medical Assessor to determine.
The Commission referred the following injuries for assessment on the question of permanent impairment:
·        cervical spine – injury;
·        lumbar spine – restriction in movement due to tenderness, and
·        left and right shoulders – injury.

Medical Assessor Alan Home issued his certificate on 12 August 2024 after he examined the claimant. He assessed the claimant's permanent impairment attributable to the subject accident at 17% in respect of:
·        cervical spine – soft tissue injury;
·        lumbar spine – soft tissue injury, underlying degenerative change;
·        left shoulder – aggravation of pre-existing left shoulder bursitis and progression of pre-accident intrasubstance supraspinatus tear, subsequent rotator cuff repair and residual stiffness, and
·        right shoulder – soft tissue injury, bursitis.

The insurer applied under s 7.26 of the MAI Act to refer the permanent impairment assessment to a Review Panel, being that the Medical Assessor did not adequately consider and address the insurer's submissions, particularly in respect of whether the accident caused bilateral shoulder injuries.
The insurer referred to Medical Assessor Home failing to address inconsistencies regarding previous examination findings in respect of the claimant's shoulder conditions. Further, the insurer submits the claimant did not fully disclose his history before the accident, which affected the neck, lumbar spine and bilateral shoulders, so that any history he provides, examination or assessments must be treated with caution.
This included a 2007 lower back injury, a 2010 accident affecting the cervical spine, and a left shoulder injury in 2017. The insurer disputes that the claimant's current permanent impairment is attributable to the 2019 accident or at least, is not entirely attributable.

STATUTORY PROVISIONS

Where there is a dispute about whether the degree of permanent impairment of an injured person is sufficient for an award of damages for non-economic loss, damages may not be awarded unless the degree of permanent impairment has been assessed by a Medical Assessor under Division 7.5: s 4.12(1) MAI Act.
The method of assessing the degree of impairment is dealt with in s 7.21, which is in the following terms:
“7.21 Assessment of degree of permanent impairment
(1) The assessment of the degree of permanent impairment of an injured person for the purposes of this Act is to be made in accordance with the Motor Accident Guidelines. The assessed degree of permanent impairment is to be expressed as a percentage.
(2) Impairments that result from more than one injury arising out of the same motor accident are to be assessed together to assess the degree of permanent impairment of the injured person.
(3) In assessing the degree of permanent impairment, regard must not be had to any psychiatric or psychological injury, impairment or symptoms, unless the assessment of the degree of permanent impairment is made solely with respect to the result of a psychiatric or psychological injury.
(4) A medical assessor may decline to make an assessment of the degree of permanent impairment of an injured person until the assessor is satisfied that the impairment caused by the injury has become permanent.”
Pre-existing impairment is addressed in cls 6.31-6.33 of the Guidelines. Clause 6.34 deals with subsequent injuries.
The Guidelines state as follows with respect to causation of injury:
“Causation of injury
6.5    An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.
6.6    Causation is defined in the Glossary at page 316 of the 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.
6.7    There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
A Panel must consider whether the accident caused or contributed to the diagnosed condition: Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372 at [75]. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible: Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 at [50]. Further, the Civil Liability Act 2002 provisions apply, in particular s 5D and s 5E.

Assessment under Review

Medical Assessor Home examined Mr Wardah, and determined the claimant was involved in a motor vehicle accident in which his vehicle struck another vehicle that had come from a driveway from his left. The car crossed his path such that he struck it head on. His history is consistent with that set out in the medical record.
The Liverpool Hospital clinical notes detailed neck pain and bilateral shoulder pain complaints. He underwent cervical precautions and CT scan imaging of the cervical spine.
He recalled the progression of lower back pain in the days after the accident, such that he underwent subsequent imaging of the lumbar spine.
Whilst the majority of attention was focussed upon his left shoulder where he had previously suffered an episode of bursitis and where the symptoms were more prominent, he also recalled immediate right shoulder pain following the accident. He noted the Liverpool Hospital record and the Personal Injury Claim Form issued on 10 September 2019, which both documenting pain in both shoulders. He noted that Medical Assessor Woo’s certificate dated 18 January 2021 did not refer to those records in respect of the right shoulder, and he denied the accident’s causal link with the right shoulder condition because he believed the complaints were made months after the accident.
The Medical Assessor found clear documentation of bilateral shoulder pain following the subject accident. The accident was a head on collision, the right shoulder contusion could occur due to the impact of the seat belt, as the motion of the body in such an impact is forward. It is also plausible for bilateral shoulder pain to arise due transmission of force from the steering wheel through the arms.
Medical Assessor Home was satisfied the claimant suffered the referred injuries referred to at the start of the reasons in this certificate injuries based upon the mechanism of the accident and his review of the medical record and assessed in accordance with Clauses 6.6 and 6.7 of the Guidelines.

Matters considered and decided by the Review Panel

The Panel met on 21 January 2025 to discuss how this matter would proceed. The Panel’s members noted the permanent impairment certificate and the insurer’s submissions about the claimant’s relevant medical conditions before the accident as well as his general practitioner (GP) initially failing to refer the claimant for a specialist for right shoulder complaints related to the accident.
The Panel considers re-examining the claimant was required and advised that Medical Assessor Rosenthal would conduct this examination on behalf of the Panel on 5 March 2025.
The Panel considered the parties’ submissions set out at Appendix A, which are addressed in the Panel’s deliberations. The Panel noted that the insurer disputed causation in respect to the bilateral shoulders and lumbar spine conditions, as well as asserting that any impairment, if found to be linked to the accident should be apportioned against the claimant’s pre-accident conditions.
The Presidential delegate’s decision dated 15 October 2024, emphasised that the insurer’s submissions particularly in respect to failing to provide adequate reasons about causation of the bilateral shoulder conditions and failing to correctly assess the shoulders’ impairment created a reasonable cause to suspect that Medical Assessor Home’s assessment had been incorrect in a material respect.

Documentation

The Panel considered the documentation in the parties’ bundles.

REVIEW PANEL FINDINGS

EXAMINATION REPORT

History

Mr Wardah is a 42 year old male who was in a motor vehicle accident on 30 August 2019. He confirmed the history previously given to Medical Assessor Home stating that he was the seat-belted driver of a Toyota sedan travelling around 55kph when a car came from the left turned right in front of him causing him to T-bone the right side of that vehicle. Airbags went off. An ambulance took him to Liverpool Hospital.
He had various X-rays performed at the hospital, complaining of both shoulders, neck, back and chest symptoms. Apart from analgesia, Liverpool Hospital gave him no particular treatment.
His left shoulder pain persisted, and he was referred to Dr David Lieu, orthopaedic surgeon, who ended up doing a subacromial decompression and rotator cuff repair on his left shoulder on 13 January 2022.
Mr Wardah maintained that his right shoulder, back and neck continued to cause symptoms from the commencement of the accident.
His lower back was treated by Dr Abraszko, spinal surgeon, who provided an injection of cortisone which did not help his symptoms.
He denied that he was sent for physiotherapy after his procedures.
He indicated that his right shoulder was assessed by Dr Lieu who said he may need surgery on the right. The insurer apparently denied further right shoulder treatment.
Since the surgery, the left shoulder has improved but he continues to have symptoms in both shoulders as well as his neck and back. The low back pain and right shoulder have deteriorated since Medical Assessor Home assessed his permanent impairment. He was asked for any reason regarding the deterioration. In his view, it was because he was not allowed to have further treatment. There have been no intervening incidents.
He denied that there were any further accidents or injuries since the 2019 accident.

Current symptoms

Walking causes pain in his back. He is getting pain down his right leg to his toes that is coming from his back. His back pain is severe. Sitting aggravates it. He had to stand up several times to stretch during the interview.
His neck and shoulder pains are constant, both hands go numb.
He can still drive a car, but his wife drove him to this examination from Bossley Park. He said he is also restricted with his walking but is still managing to go to the gym and use a stationary bike.
He has now developed chronic pain since the accident occurred in August 2019. His symptoms are slowly deteriorating.

Current treatment

He takes Voltaren and Somac daily.
He sees a psychologist for a psychological injury. He used to take Avanza, but he stopped this.
No other particular treatment is occurring.

Pre-existing conditions

He was questioned at length regarding the pre-existing conditions including being reminded that there was a report of an accident in 2007 and a work injury in 2010. He said he did injure his back at work but after a brief period of treatment his back recovered. He denied ongoing back pain and denied having back pain before this accident.
In regard to his neck, it was put to him that there were reports of previous neck complaints before the accident, but he said any neck complaints were completely resolved. He said he was still able to play soccer and work while those complaints were being treated.
It was also put to him that there was a left shoulder condition before the accident. Again, he stated that any left shoulder condition was treated and had resolved well before this accident occurred.
He indicated that he was able to work as a machine operator until the time of this accident and there were no pre-existing conditions impacting on his ability to work or play soccer.

Occupational and social history

He was a machine operator but has not worked since the motor vehicle accident. He said his wife and daughter work to support him. He did have a family business, and he was a suit designer in the past but said he cannot do this now.
He is originally from Iraq. He came to Australia in 2005. He is married with four children aged 19, 17, 7 and 6, living in a house in Bossley Park.
He still does a little bit of walking. He uses a stationary bike and goes to the gym to do stretches one to two times a week. He can arm curl 5kg in weight, but he said he plays no sport and has no hobbies. He still drives and goes shopping and can do his personal care activities.

Investigations

He presented a new radiology report dated 14 February 2025.
An MRI of the lumbar spine noted that the impingement of the L5 nerves bilaterally was more prominent compared to a 2022 study. The conclusion was: “No spondylolisthesis or pars defect. Mid to lower lumbar spondylosis is seen with neural impingement. The neural impingement, however, is most marked on the L5 roots. Mild spinal stenosis.”

Physical examination

Mr Wardah presented with pain behaviour. He walked with an antalgic gait. He weighed 74.7kg and was 168cm tall.
His movements appeared to vary at times. At the neck, he complained of pain in movement, but neck movements were reduced at the extremes. There was no spasm or guarding and no asymmetry of movement. Rotation to left and right, flexion, extension and lateral flexion were all reduced at the extremes with pain reported.
Brachial stretch was negative. There were no neurological deficits in the upper limbs. There was no evidence of radiculopathy. Muscle power, tone and reflexes were normal and there were no sensory changes.
There were three arthroscopy scars at the left shoulder which were hidden by tattoos and barely perceptible. I could not clearly visualise any suture marks, contour or trophic changes, or significant discoloration which was camouflaged by his tattoos.
At the shoulders, he had a variable range of motion, particularly at the right shoulder impacted by pain, grimacing and pain behaviour. Maximal ranges of motion are recorded in the table below:

Shoulder Movement	Right	Left
Abduction	90°	140°
Flexion	90°	140°
Extension	30°	50°
Adduction	30°	50°
External rotation	70°	80°
Internal rotation	30°	70°

At the lumbar spine, he had a significant reduction in motion with pain and tenderness over the right L5 region. Flexion, extension, and lateral flexion were all reduced by half to three-quarters with no clear asymmetry as pain behaviour was evident. There was no spasm or guarding. He could get up on his heels and toes and did a very partial squat.
Straight leg raise was 70° on the left with a negative Lasegue’s sign, and 50° on the right with a negative Lasegue’s sign. He reported right side groin pain but there was no dermatomal or sensory loss. There was no anatomical weakness in the right lower extremity. Reflexes were equal and normal. There was no evidence of radiculopathy in his lower limbs.

Diagnosis and causation

The claimant was asked about the inconsistencies, particularly in the right shoulder. The examiner put it to him that the right shoulder had deteriorated compared with earlier assessments.
The examiner also highlighted to the claimant the fact that at various times his left shoulder movements had varied greatly between Medical Assessors.
Mr Wardah basically blamed the fact that he was not allowed to have treatment, and he was told by his specialist that if he did not have treatment his condition would deteriorate. In his view, the deterioration is due to lack of treatment.
The examiner/claimant noted that the inconsistent movements were all affected by reported pain.

Left shoulder

In terms of the pre-existing conditions, whilst there were pre-existing conditions, Medical Assessor Rosenthal accepted that the accident aggravated the left shoulder condition and any pre-existing pathology. Further, it resulted in the shoulder surgery performed by Dr Lieu. His left shoulder presentation was consistent with Medical Assessor Home’s assessment and the range of motion demonstrated would be acceptable to assess whole person impairment (WPI).
The calculations for the left shoulder using Figures 38, 41 and 44 are:

Movement	Left Shoulder	UEI
Abduction	140°	2%
Flexion	140°	3%
Extension	50°	0%
Adduction	50°	0%
External rotation	80°	0%
Internal rotation	70°	1%
TOTAL UEI	6%

6% upper extremity impairment converts to 4% WPI.

Cervical spine

The neck/cervical spine soft tissue injury, based on Medical Assessor Rosenthal’s examination was DRE category I and gets 0% WPI under cervicothoracic spine Table 73, page 110. There were no criteria to place it into a higher category.

Right shoulder

The Panel found causation for the right shoulder is accepted because there were early reports, and the accident mechanism meant the claimant’s right shoulder would have felt the seatbelt’s impact. The injury was deemed a soft tissue injury. The right shoulder ROM is inconsistent, so ROM cannot be used to assess impairment.
The right shoulder impairment would have to be based on a possible mild bursitis and assessment by analogy, the condition is equivalent to mild crepitation of the AC joint, Tables 18 and 19, which results in 3% upper extremity impairment or 2% WPI.
The deterioration of the right shoulder is not explainable by any pathological injury. As the Panel accepts that there was a right shoulder soft tissue injury, the Panel using analogy can award 2% WPI for the right shoulder.

Lumbar spine

The claimant’s lumbar spine shows non-verifiable radicular complaints but no true lumbar asymmetry although lumbar movements were reduced. Based on his current presentation, he would be DRE category II and receive 5% WPI. The Panel discussed whether the lumbar spine injury was merely a soft tissue injury making degenerative changes temporarily symptomatic, which should have recovered.
There is no explanation for the significant deterioration and chronic pain that has occurred in the lumbar spine since the accident, although the recent MRI demonstrated there is still neural impingement. The Panel considered whether the claimant’s lumbar spine was a temporary aggravation and if his ongoing lumbar spine condition was related to a pre-existing condition or a generalised degenerative condition of the lumbar spine.
However, he has been consistently presenting with this condition and symptoms since the accident, the other medico-legal specialists have accepted the nexus between the lumbar spine condition and the accident. The fact that the claimant’s treating doctors thought it was appropriate to obtain another MRI is also supportive of the proposition that the lumbar spine condition caused by the accident has persisted.

Panel deliberations

The Panel accepted Medical Assessor Rosenthal’s examination report. The Panel discussed and agreed on the conclusions and impairment assessment.
The Panel also considered the claimant’s new radiology report dated 14 February 2025, which was an MRI of the lumbar spine noting that the impingement of the L5 nerves bilaterally was more prominent compared to a 2022 study.
It was not known if the claimant provided this to the insurer before the examination, but it was produced in response to the Panel’s directions relating to this examination. Further it was probative evidence that relevant to resolving the facts in issue. Accordingly, the Panel considered it was appropriate to include this scan in the Panel’s deliberations.
The Panel regarded the insurer’s earlier submissions to Medical Assessor Home and those seeking review, which highlighted issues about causation in respect of whether the accident mechanism was sufficient to cause the referred injuries and the existence of degenerative changes seen in the scans taken after this accident.
The insurer also submitted that the claimant’s work history before the accident was most likely to be the source of any of the referred injuries.
The insurer’s view was that the claimant’s reliability or credit was impugned due to him not volunteering knowledge of past complaints in the left shoulder, cervical spine and lumbar spine, and that any history, complaints or assessments should be treated with caution.
The insurer relied on Dr Keller’s report dated 8 June 2022 in respect of the accident mechanism which makes the point that “it was not clear” whether the mechanism of collision was sufficiently forceful to cause the rotator cuff tears. He accepted it was possible that the claimant suffered soft tissue injuries to the neck, back and shoulders attributable to the accident, but it was “not clear that his persisting complaints some three years later and his need for shoulder surgery relate to these soft tissue injuries”.
The Panel noted that Dr Keller’s report based this opinion on a line entry in the police report E72254646 that the collision was “minor”. The police report version only informs the Panel that the claimant was travelling in his lane while the insured driver’s manoeuvre was described as “other”.
Dr Keller’s report refers to the accident later in that report as happening when someone attempted a U turn in front of him. This is surprising because the version Dr Keller initially recorded from the claimant matches with the version noted in the ambulance records.
Dr Keller obtained the claimant’s detailed history that on 30 August 2019 he was driving in a 60kmph zone with his seat belt on when the insured car entered from a lane on the left. It crossed the claimant’s path so that he struck the insured’s car at right angles pushing it sideways on its tires. In some reports it is described as a T-bone collision, which paints a clear picture. The claimant’s car’s airbags deployed and later the property damage insurer wrote off his car. Ambulance officers attending on Mr Wardah at the accident site reported he described the accident as a collision at “50 kph and did not touch brakes” and noting his neck, back and shoulders pain with immediate pain in his shoulders and lower back going into his leg.
The claimant’s version is also recorded with minor variations in the clinical notes and reports enclosed with the bundle, and it is uncontradicted.
The insurer has not provided the insured driver’s version, police notebooks or biomechanical evidence, and no evidence of the police’ framework for classifying accidents. Dr Keller, despite recording the claimant’s version, does not consider it or the ambulance report entry which confirms the claimant was injured; the veracity of Mr Wardah’s version or give reasons why he puts so much weight on the police description of “minor” to justify his scepticism about the mechanism being sufficient to cause rotator cuff tears or continuing pain in the referred body parts.
The Panel considered the complainant’s version of the accident as given to the ambulance staff and consistently provided to his treating doctors and medico-legal experts; the normal driving position requiring a driver to have both hands on the steering wheel which could transmit forces into the wrists and arms; the seat belt over the right shoulder imposing forces on that shoulder; the front end collision against the insured vehicle at right angles; the sudden deceleration from around 50kph and immediate complaints to the referred body parts. The Panel also considered Dr Keller’s opinion on the mechanism.
The Panel finds that the claimant’s version describes a mechanism that could have caused all the referred injuries. The claimant’s version has been consistently reported since the date of the accident. On balance, the Panel prefers that version against the speculative reliance on a description of “minor”.
The Panel notes the insurer relies upon the Supreme Court decision in QBE Insurance v Shah NSWSC 288, and, relying on the Panel’s medical expertise finds the biomechanical forces were sufficient to cause the shoulder injuries and that the soft tissue injuries and traumatic changes shown in scans were attributable to the accident.
Medical Assessor Woo’s certificate dated 18 January 2021 is put forward as relevant to the causation question, but he accepts all the referred injuries as being caused by the accident, but for the right shoulder which will be addressed below, and bilateral wrist injuries.
In respect of the left shoulder condition, Medical Assessor Woo refers to a summary of

Dr David Lieu’s report dated 24 August 2020, which refers to a full thickness tear in the left shoulder as being “significant at his age. Apparently, it has progressed since his previous scans”. Dr Woo then refers to a 2017 left shoulder scan that shows a partial tear in the same place. The existence of this condition before the accident was referred to constantly in the GP notes and Certificates of Capacity drawn shortly before the accident.
The Panel agreed that those scans demonstrated there was a material change in the state of the tear after the accident that was traumatic in nature.
Against that is the insurer’s reliance on Dr Keller who opined that previous assessments finding left shoulder permanent impairment arising from the accident, such as Dr Bodel’s report dated 17 May 2023, did not put enough weight on the claimant’s left shoulder condition before the accident as the source of any impairment. Dr Keller opined the previous condition would eventually lead to surgery without the accident intervening, despite him stating it was not his area of expertise.
The Panel prefers Dr Lieu’s description of the state of the left shoulder after the accident signifying the full thickness tear was a change from the pre-accident state first recorded in 2017 showing a small partial tear, which was managed conservatively and Medical Assessor Woo’s reasoning to support a finding that accident made a material contribution to the worsening of the left shoulder condition to become a condition which required surgical intervention.
Despite the surgery the left shoulder disability has persisted. The insurer has submitted that “one would presume that any injury to the left shoulder should now have completely resolved, or there would be significant symptomatic and functional improvement at the very least.”
Dr Keller’s opinion is that there was no permanent impairment due to his view that the accident was “minor” and could not cause more than a temporary aggravation.
Drs Powell and Bodel, with Medical Assessor Home assessed 6%, 2% and 4% respectively. This Panel assessed 4%. Apart from Dr Bodel ’s left shoulder assessment the other doctors’ assessments show the insurer’s “expected trajectory of symptomatic and functional improvement”, albeit not complete resolution. This is not unexpected because the claimant still follows an exercise program.
The Panel noted that the claimant says that the insurer does not fund treatment now. Medical Assessor Rosenthal questioned the claimant on the various examination findings by Medical Assessors and the medico-legal expert. The claimant explained that his specialist told him this has led to deterioration.
Although the claimant had demonstrated symptoms in the left shoulder before the accident, the Panel found there was no objective material available to assess pre-existing left shoulder impairment in accordance with cl 6.31 of the Guidelines.
In respect to the right shoulder, the insurer relies on Medical Assessor Woo’s opinion dated 18 January 2021; Dr Powell’s opinion in his reports dated 11 April 2022, 29 December 2022 and 24 March 2023; and Dr Keller’s opinion on the forces involved in the accident and the fact that the right shoulder scans taken 6 July 2020 demonstrated degenerative changes including osteoarthritis as well as a partial high grade tear of the supraspinatus.
The insurer also relies on the claimant’s GP omitting the right shoulder when he refers the claimant to Dr Medhat Guirgis; a hospital discharge notice the day after the accident referring to full ROM in both shoulders; the Benchmark Initial Needs Assessment report of

4 October 2019 when the right shoulder displayed full ROM; and Dr Wallace’s neurological examination in October 2019, showing equal and symmetrical reflexes, and intact power and light sensation.
In respect of Medical Assessor Woo’s opinion on this body part not being related to the accident, the Panel, like Medical Assessor Home, noted it was based on the premise that there had been a delay of several months before the right shoulder complaints were noted. Medical Assessor Woo did not refer to the early complaints in the ambulance records, the hospital notes and APIB, or question the claimant about any other mechanism that could have caused the changes shown in the scans taken on 6 July 2020.
The Panel noted that the insurer submits that considerable weight should be attributed to

Dr Powell’s opinion on causation of the right shoulder condition.
Reviewing the earliest report, Dr Powell observed that there was considerable changes in the right shoulder but discounted the nexus with the accident based on the premise that Medical Assessor Woo declined to find a nexus. His report does not independently analyse the records on complaint or mechanism. A Medical Assessor’s certificate can provide probative evidence, but it is does not bind a dispute on a different statutory question.[1]
[1] Wood v Insurance Australia Group Limited trading as NRMA Insurance [2025] NSWSC 320 [44].
The second report dated 29 December 2022 based on an October 2022 examination, where Dr Powell assesses the right shoulder impairment, records that he found it was reasonable that the accident caused bilateral shoulder injuries.
The reason Dr Powell changed his mind on causation for the right shoulder was based only on him recording that the claimant told him, “that liability was accepted for the shoulder injuries”.
Again, he did not independently analyse the claimant’s premise that the accident caused the right shoulder injury.
In his last report dated 24 March 2023, Dr Powell says he reverts to his earlier opinion about the right shoulder’s nexus with the accident, based on the insurer’s instructions that liability was not accepted for the right shoulder. There is still no analysis of the evidence on this point.
The insurer submitted that the early references to the right shoulder injury were not sufficient to validate an ongoing injury to the right shoulder arising as a result of the accident, because pre-existing pathologies were present, and the “causation issue reiterated by the experts”.
The Panel notes the points regarding the claimant’s GP not referring to the right shoulder to specialist care and ROM observations with Dr Wallace and the Benchmark report, but on balance the seat belt pressure on the right shoulder, contemporaneous complaints after the accident about the right shoulder, the lack of intervening events or activities which could have contributed to the current right shoulder impairment, and the persistent restrictions that have been demonstrated in other examinations after the accident, indicated that the accident caused or materially contributed to the examination findings as measured by Medical Assessor Rosenthal.
The Panel was satisfied due to a lack of right shoulder complaints before the accident, including when the claimant sought left shoulder treatment in 2017, any degeneration in the right shoulder was asymptomatic and the accident mechanism as the claimant described was sufficient to cause the existing condition to become symptomatic and to cause a rotator cuff tear in the right shoulder.
Like Dr Powell and Dr Keller, Medical Assessor Rosenthal assessed DRE Category I at 0% for the cervical spine.
The Panel considered the contemporaneous records and Dr Powell’s and Dr Keller’s findings on the lumbar spine.
However, as noted in Medical Assessor Rosenthal’s report above like Dr Bodel and Medical Assessor Home the Panel assigned DRE Category II at 5% for the lumbar spine.
Although the Liverpool Hospital discharged noted the lumbar spine was non-tender, the ambulance records and Dr Alsaad’s review dated 9 September 2019, recorded mild pain and tenderness in the lower back. Dr Antoun diagnosed a musculoligamentous strain to the lumbar spine on 31 October 2019 and Medical Assessor Woo assessed a symptomatic minor soft tissue lower back injury in January 2021.
The claimant’s lumbar spine condition has consistently demonstrated radicular symptoms since the accident, including the claimant’s treating doctors recently referring the claimant for further lumbar spine scans.
The accident was a sufficient intervening event that was capable of causing a lumbar spine injury. The 2007 lumbar spine complaint does not support the presence of an existing impairment or condition, and any condition was asymptomatic allowing the claimant to play sport, attend gym and work.
The Panel considered whether there should be apportionment between any impairment in the referred body parts already existing on the day of the accident from the current impairment.
In respect of all the referred body parts, the Panel agreed there was insufficient objective evidence which could satisfy cl 6.31 of the Guidelines to assess pre-accident impairment.
The insurer requested any subjective history, complaint or examination taken from the claimant be considered with caution, because the claimant did not include relevant pre-existing conditions in his application for personal injury benefits. However, it is noted that the earliest certificates of capacity and correspondence refer to the existing left shoulder condition and that the other incidents of injury were nine and twelve years earlier.
Apart from the references to Mr Wardah not volunteering every item of earlier relevant conditions in every instance, there was no evidence that demonstrated that the claimant’s history could not be accepted.
The omissions are equally capable of being explained as oversights by the claimant or the history takers, rather than deceit or signs of non-injury. Against the insurer’s submissions, the evidentiary material and the claimant’s consistent descriptions of the accident and sequelae have demonstrated the claimant’s consistency. On balance, the claimant’s evidence can be accepted.
In respect of the insurer’s request to treat Dr Powell’s description of the claimant’s behaviour as psychosomatic as reflecting on his reliability or credit, the Panel does not give this weight because the reference is made without explanation other than to refer to the claimant being treated for psychological problems stemming from the accident.
Parties asking for findings on credit must be mindful that while the applicant bears the burden of proof, there is a positive duty imposed on a tribunal to remain open minded and consider all the evidence, and how it relates to the applicant’s conduct.

Permanency of impairment

Permanent impairment is defined in the American Medical Association's Guides to the Evaluation of Permanent impairment (Fourth Edition) (AMA 4) (p 315) as follows:
• permanent impairment is unlikely to change substantially and by more than 3% in the next year with or without medical treatment and is consider permanent by definition, and
• Mr Wardah’s symptoms have remained stable for the last 6-12 months. There is no specific treatment planned. The Panel believes that his impairment is stable for the assessment of permanent impairment.

Determinations – permanent impairment

The determination as to permanent impairment is made in accordance with the AMA 4 and Part 6 of the Motor Accident Guidelines.
Permanent impairment ratings take symptoms into account; however, the percentage WPI is not a direct measure of disability. 0% WPI indicates that the accident caused an injury and that there may be continuing symptoms, however, relevant Guides may rate the associated impairment at 0% WPI.

Causation and permanent impairment

The Review Panel found that the motor accident caused the following injuries:
·        cervical spine – soft tissue injury;
·        lumbar spine – soft tissue injury, underlying degenerative change;
·        left shoulder – aggravation of pre-existing left shoulder bursitis and progression of pre-accident intrasubstance supraspinatus tear, subsequent rotator cuff repair and residual stiffness, and
·        right shoulder – soft tissue injury, bursitis.
The Review Panel found that the following injuries were symptomatic, but were assessed as 0% permanent impairment:
· cervical spine- soft tissue injury.

The Review Panel considered that the following injuries caused permanent impairment above 0%:
·        lumbar spine – soft tissue injury, underlying degenerative change;
·        left shoulder – aggravation of pre-existing left shoulder bursitis and progression of pre-accident intrasubstance supraspinatus tear, subsequent rotator cuff repair and residual stiffness, and
·        right shoulder – soft tissue injury, bursitis.
The permanent impairment table is set out at Appendix B.

Conclusion

The Review Panel has found the accident caused injuries with a percentage permanent impairment of 11%. The total WPI is greater than 10%.
The Review Panel’s permanent impairment assessment provided a different outcome to Medical Assessor Home’s certificate dated 12 August 2024.
Accordingly, the Review Panel will revoke that certificate and issue a new permanent impairment certificate.

Review Panel

Personal Injury Commission

APPENDICES

APPENDIX A

Claimant’s submissions

The claimant relies on Dr Bodel’s report dated 17 May 2023.

Insurer’s submissions

The insurer denies any causal link between the claimant’s shoulder injuries and the accident, and subsequently there is no assessable impairment.

The insurer relies on Dr Powell’s second report which initially assessed impairment at 11% but later wrote a supplementary report, wherein he reduced his assessment to 6% WPI related to the left shoulder.

The insurer also relied on Dr Keller’s reports, who opined a 0% whole person impairment rating and made findings on causation.

The insurer submitted that Dr Bodel and Medical Assessor Home did not consider the discrepancies with contemporaneous treating evidence. Medical Assessor Home did not address the claimant’s subjective reporting. The insurer stresses that Dr Bodel and Medical Assessor Home did not sufficiently address the extent of the claimant’s-medical history before the accident and erroneously attributed the injuries to the accident.

The insurer submits that Drs Powell and Keller accurately assessed the functional improvements and pre-existing conditions described in the treating records as being the cause of the claimant’s alleged disabilities.

The insurer submits that in relation to the right shoulder condition, MRI scans performed on 6 July 2020 demonstrated osteoarthritic change in the acromioclavicular joint and articular surface partial high grade tear of the supraspinatus tendon. Radiological imaging demonstrated clear signs of degenerative and progressive pathology with osteoarthritic changes present in the acromioclavicular joint. It is submitted that there is little evidence to establish a causal relationship between the subject accident and the alleged injury to the right shoulder. The insurer relies upon the expert report of Dr Powell, dated 24 March 2023 in this regard.

The insurer also relies upon Dr Keller’s reasoning, who opined that the police report notes the accident was minor and that scans showed no acute changes.

The insurer relies upon the further medical evidence as follows, a referral to Dr Medhat Guirguis after the accident mentions the left shoulder injury but not a right shoulder injury, the Liverpool Hospital discharge reference to ROM, and the Benchmark Initial Needs assessment noting full ROM. Dr Wallace’s review in October 2019, found the neurological examination showed equal and symmetrical reflexes, and that power and light sensation were intact.

The insurer refers to Medical Assessor Woo’s finding on the right shoulder in the minor injury certificate dated 18 January 2021.

With regard to the left shoulder, the insurer submits that the radiological imaging revealed a superior anterior labrum suspicious for a non-displaced tear and a very small insertional tear at the upper portion of the subscapularis tendon and a thin linear intrasubstance tear in the supraspinatus tendon. Noting the claimant’s prior injuries, physical work history, and degenerative pathologies, the insurer queries whether such changes are the result of the former, rather than casually related to the accident.

The insurer relies upon the Supreme Court decision in QBE Insurance v Shah NSWSC 288, that reasons must include a “biomechanical or anatomical explanation of the possible mode of injury to the rotator cuff tendons” [23]. The insurer says there is no anatomical or mechanical explanation for the claimant’s conditions.

Dr Powell’s reports set out the claimant’s medical history before the-accident medical history as follows, a) the claimant had experienced left shoulder symptoms approximately five years ago without any specific injury, b) the ultrasound had reported evidence of rotator cuff tendinopathy and subacromial bursitis and c) management was conservative and symptoms settled with physiotherapy.

Scans show a full thickness rotator cuff tear, on a background of previous left shoulder symptoms and some underlying degenerative rotator cuff pathology. Dr Keller also opined that the investigation findings afterwards are not significantly different, suggesting that any exacerbation should have recovered and that the ongoing complaints and treatment needs relate to constitutional degenerative change.

The insurer acknowledges that Dr Powell opined a 6% WPI rating, but that assessment was performed in late December 2022 following a left shoulder orthopaedic rotator cuff repair in February 2022. The left shoulder should have now completely resolved or at the very least, have significant symptomatic and functional improvement.

In respect to the cervical condition, the claimant had a previous diagnosis of cervical discopathy. The Liverpool Hospital discharge notes the claimant’s neck was non tender.

Dr Powell diagnosed a whiplash injury with a DRE Cervicothoracic Category impairment rating of 0%. Dr Keller also assessed a DRE Cervicothoracic Category I with 0% WPI.

Dr Bodel’s cervical assessment is based upon the finding of asymmetry of movement and guarding. The insurer relies on Dr Antoun’s report, dated 31 October 2019, the Benchmark Progress report of 11 November 2019, the Certificate of Assessor Woo, Document R18 and Dr Powell and Dr Keller.

In relation to the lumbar spine condition, the diagnostic imaging demonstrated underlying degenerative changes. Dr Guirguis’s notes continuous episodes of lower back pain stemming from a mid-2007 injury in the context of heavy machinery work. Dr Powell’s report dated 11 April 2022 agreed there was pre-existing lumbar spine pathology with a psychosomatic component to the presentation. Drs Powell and Keller assigned DRE Category I impairment. Dr Bodel whilst assessing 5% WPI failed to apportion prior overlapping injuries or the degenerative pathologies. The Liverpool Hospital discharged noted the lumbar spine was non-tender. Dr Alsaad’s review dated 9 September 2019, recorded mild pain and tenderness in the lower back. Dr Antoun diagnosed a musculoligamentous strain to the lumbar spine on 31 October 2019. Medical Assessor Woo assessed a minor soft tissue lower back injury.

A Medical Assessor should find that the injury to the lumbar spine was not causally related to the subject accident, or at the very least, gives rise to minimal permanent impairment.

APPENDIX B

Body Part or System	AMA Guides/ MAA Guidelines References (Chapter/ page/table)	Stabilised (YES/NO)	Current %WPI*	*%WPI from pre-existing OR subsequent causes**	*%WPI due to accident**
1.	Cervical spine – soft tissue	Chapter 3, page 103 (AMA4)	Yes	0	0	0
2.	Lumbar spine – soft tissue injury, underlying degenerative change;	Chapter 3, page 102 (AMA4)	Yes	5	0	5
3.	Left shoulder – aggravation of pre-existing left shoulder bursitis and progression of pre-accident intrasubstance supraspinatus tear, subsequent rotator cuff repair and residual stiffness	Pie Charts 38, 41 and 44, Pages 43-45, AMA IV	Yes	4	0	4
4.	Right shoulder – soft tissue injury, bursitis	Pie Charts 38, 41 and 44, Pages 43-45, AMA IV	Yes	2	0	2
Total	11

[2025] NSWPICMP 366

26 May 2025