Rahmanzi v Allianz Australia Insurance Ltd

[2023] NSWPICMP 492

DETERMINATION OF REVIEW PANEL

CITATION:

Rahmanzi v Allianz Australia Insurance Ltd [2023] NSWPICMP 492

CLAIMANT:

Mujib Rahmanzi

INSURER:

Allianz Australia Insurance Limited

REVIEW PANEL

MEMBER:

Anthony Scarcella

MEDICAL ASSESSOR:

Alan Home

MEDICAL ASSESSOR:

Michael Couch

DATE OF DECISION:

29 September 2023

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical assessment of whole person impairment (WPI) by Medical Assessor (MA) McGrath who determined that the claimant did not have a WPI of greater than 10%, namely, 6% WPI; review sought by claimant under Section 7.26; claimant injured his neck, lower back and left leg in a motor accident on 23 November 2017; claimant injured his neck, shoulders, back, left arm and left leg in another motor accident on 30 October 2018; the review related to the injuries sustained in the motor accident on 30 October 2018; consideration and application of clauses 6.31, 6.32 and 6.33 of the Motor Accident Guidelines (the Guidelines) in respect of pre-existing impairment in respect of the injuries to the cervical spine and lumbar spine; Fisher v Insurance Australia Limited t/as NRMA Insurance and Vassallo v AAI Limited t/as GIO considered; Allianz Australian Insurance Ltd v Motor Accidents Authority NSW considered and applied; Held – the claimant suffered the following injuries in the motor accident on 30 October 2018: cervical spine, an aggravation of underlying degenerative changes at C5/6 with development of left sided radicular symptoms conforming to a left C6 pattern, for which a C5/6 discectomy was performed, and lumbar spine, an aggravation of underlying lumbar spondylosis at L4/5 and L5/S1 with a subsequent left L5 laminectomy/L4/5 decompression to manage symptoms of left lower limb paraesthesia; clause 6.31 of the Guidelines does not limit the “objective evidence of a pre-existing symptomatic impairment” being recorded by medical practitioners or medico-legal specialists; it is not necessary that the impairment arising from an initial accident be permanent at the time of a subsequent accident for clause 6.31 of the Guidelines to be engaged; the permanency of a pre-existing impairment is to be determined as at the time of the assessment and not as at the time of the subsequent motor accident, whether that impairment arises directly from the motor accident in question or is a pre-existing or subsequent impairment; the certificate of Medical Assessor McGrath dated 7 December 2022 is confirmed.

.

DETERMINATIONS MADE:  

CERTIFICATE OF DETERMINATION
Issued under s 7.23(1) of the Motor Accident Injuries Act 2017

The Review Panel:

1.     Confirms the certificate of Medical Assessor David McGrath dated 7 December 2022.

STATEMENT OF REASONS

BACKGROUND

1. On 23 November 2017, the claimant in these proceedings, Mr Mujib Rahmanzi, was driving his motor vehicle along a main road when the driver of the vehicle in front of him suddenly applied the brakes, causing him to brake heavily, causing the vehicle behind him to collide with the rear of his vehicle. Mr Rahmanzi says that he injured his neck, lower back and left leg in the accident. The relevant compulsory third party insurer in respect of the motor accident is AAI Limited t/as GIO (GIO). This accident was not the subject of these proceedings.

2. On 30 October 2018, Mr Rahmanzi was driving his motor vehicle along a main road when another vehicle moved into the lane in which he was travelling, collided with his vehicle and pushed it off the road onto the footpath (the motor accident). Mr Rahmanzi says that he injured his neck, shoulders, back, left arm and left leg in the motor accident.

3. Mr Rahmanzi has brought a claim for common law damages for the injuries he sustained in the motor accident under the Motor Accident Injuries Act 2017 (the MAI Act).

4. Allianz Australia Insurance Limited (the insurer) is the relevant insurer with liability to pay any damages to Mr Rahmanzi under the MAI Act.

5. A medical dispute about the degree of Mr Rahmanzi’s whole person impairment (WPI) has arisen in connection with his claim. This constitutes a medical assessment matter under Schedule 2, cl 2(a) of the MAI Act.

6. 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.

7. The dispute was referred to the Personal Injury Commission (the Commission) and the Commission assigned it to Medical Assessor David McGrath for assessment.

8. On 7 December 2022, Medical Assessor McGrath determined that Mr Rahmanzi did not have a WPI of greater than 10% (the Medical Assessment).

REVIEW PROCEDURE

1. Mr Rahmanzi sought a review of the Medical Assessment under s 7.26 of the MAI Act (the Review). The application for referral of a medical assessment to a Review Panel (the Panel) was made by Mr Rahmanzi within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought: s 7.26(10) of the MAI Act.

2. 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 which is the subject of the Review was made on or after 1 March 2021, the new review provisions apply.

3. A delegate of the President of the Commission determined there was reasonable cause to suspect that the Medical Assessment was incorrect in a material respect and referred the matter to the Panel.

4. 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.

5. 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.

6. 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 accident, without those matters having to be the subject of assessment.

7. 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.

8. On 22 May 2023, the Panel granted leave to the insurer to issue a Direction for Production to Dr Nirenjen St George of Workers Doctors.

9. On 22 May 2023, the Panel informed the parties that it considered a re-examination of Mr Rahmanzi was required. Arrangements were made for Mr Rahmanzi to be re-examined by Medical Assessor Home on 25 July 2023.

LEGISLATIVE FRAMEWORK

General provisions

1. Sections 5D and 5E of the Civil Liability Act 2002 (the CLA) apply to the MAI Act: s 3B(2) of the CLA.

2. Mr Rahmanzi’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.

3. 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

1. 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 (the Guidelines).[1]

   [1] Current version 9.1 effective from 1 April 2023.

2. 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.

3. Permanent impairment is assessed in accordance with Chapter 6 of the Guidelines.

4. Causation of injury is addressed in cls 6.5, 6.6 and 6.7 of the Guidelines.

5. 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.”

1. 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.”

1. Pre-existing impairment is addressed in cls 6.31, 6.32 and 6.33 of the Guidelines.

2. 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.

3. 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.”

1. 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.

ASSESSMENT UNDER REVIEW

1. Medical Assessor McGrath examined Mr Rahmanzi on 30 November 2022 and issued a certificate under s 7.23(1) of the MAI Act on 7 December 2022.[2]

   [2] Insurer’s documents R2 at pages 9-17.

2. Medical Assessor McGrath was asked to assess the following injuries:

   (a)    cervical spine disc injury – C5/6, and

   (b)    lumbar spine disc injury – L4/5.

3. Medical Assessor McGrath took a history that Mr Rahmanzi had been involved in two motor accidents, the first of which occurred in 2017 when the vehicle he was travelling in was hit from behind by another vehicle. That accident led to neck pain and a prolonged period of physiotherapy. Mr Rahmanzi was still under treatment, mostly physiotherapy and hydrotherapy, at the time of the subject motor accident on 30 October 2018. He had not returned to his pre-injury work duties at the time of the subject motor accident on 30 October 2018. There was no other history of trauma, broken bones or medical conditions.

4. In respect of the motor accident on 30 October 2018, Medical Assessor McGrath took a history that Mr Rahmanzi was driving a vehicle on a three-lane highway when another vehicle attempted a lane change, hitting his car on the right-hand side. There was a secondary impact when his car hit the kerb. The right side of his car was crushed and he needed to be released by emergency workers. He was transported to hospital and discharged later that day into the care of his general practitioner. He had been unable to return to work since the motor accident.

5. In respect of treatment since the motor accident, Medical Assessor McGrath was provided with a history of physiotherapy, hydrotherapy, consultation with a pain specialist and participation in a rehabilitation program. Those interventions were unsuccessful and Mr Rahmanzi sought surgical consultations with Dr Sean Suttor, Dr Marc Coughlan and Dr Peter Khong. On 27 August 2019, Mr Rahmanzi underwent cervical and lumbar laminectomies performed by Dr Khong, which were successful in reducing leg and arm pain.

6. In respect of current symptoms, Mr Rahmanzi complained of left-sided neck pain with discomfort into the left shoulder blade descending as far as the elbow. Prior to surgery, he experienced symptoms into the left hand. He also complained of central lower back pain with a slight tendency towards the left descending down to knee level. Since surgery such pain had reduced. Mr Rahmanzi stated that he had been unable to return to his usual occupation as a car salesperson and manager as a result of his pains. He receives assistance from family for common everyday activities.

7. Mr Rahmanzi informed Medical Assessor McGrath that he was taking Melatonin at night for sleep; Gabapentin for nerve pain; Lovan for depression; Panadeine Forte tablets; and Panadol Osteo tablets. He also undertook three monthly psychology sessions.

8. As to Mr Rahmanzi’s general presentation on clinical examination, Medical Assessor McGrath observed that he was assisted with a walking stick; walked slowly; had difficulty getting on and off chairs; and had difficulty getting on and off the examination plinth.

9. On examination of Mr Rahmanzi’s cervical spine, Medical Assessor McGrath observed a mildly restricted range of motion in the neck and that there was less left axial rotation and left lateral flexion, being a 1/5 loss. Neurological examination revealed normal deep tendon reflexes, power and sensation. There was no neural tension or observable atrophy. There was no radiculopathy or non-verifiable radiculopathy.

10. On examination of Mr Rahmanzi’s lumbar spine, Medical Assessor McGrath observed a reduced and asymmetrical range of motion, particularly with loss of flexion, although all the movements were restricted. There was some guarding. Neurological examination revealed normal deep tendon reflexes, power and sensation. There was some altered sensation in the left leg but it did not follow a dermatomal distribution. Mr Rahmanzi described dysaesthesia with paraesthesia and numbness into the left leg. There were no neural tension signs or observable atrophy of leg muscles. Straight leg raise (SLR) was normal. He did not have radiculopathy as defined in the Guidelines.

11. On examination of Mr Rahmanzi’s left shoulder, Medical Assessor McGrath measured upper arm circumference at 28cm for the right arm and 27cm for the left arm. Medical Assessor McGrath observed that Mr Rahmanzi had a reduced range of motion at the left shoulder, stating that he was experiencing discomfort towards the base of his neck. Measurements were variable and inconsistent on repeat performance.

12. On examination of Mr Rahmanzi’s scarring, Medical Assessor McGrath observed two surgical scars on the posterior aspect of the neck and the posterior aspect of the lumbar spine.

13. In respect of consistency, Medical Assessor McGrath noted that Mr Rahmanzi was distressed by his circumstances and loss of income. The range of motion of body parts was variable and pain influenced. Mr Rahmanzi’s knowledge and participation of therapeutic exercise was judged to be inadequate.

14. Medical Assessor McGrath reviewed and summarised the relevant pre-accident and post-accident documentation made available to him. He also reviewed and summarised the relevant radiological and medical imaging brought to the assessment.

15. Medical Assessor McGrath was satisfied that, in accordance with the AMA 4 Guides and the Guidelines, Mr Rahmanzi’s impairment was permanent.

16. Medical Assessor McGrath’s diagnosis was of a cervical spine laminectomy and lumbar spine laminectomy caused by the motor accident. He opined that, on balance, it was unlikely Mr Rahmanzi would have received the spinal surgery without having had the motor accident on 30 October 2018.

17. However, Medical Assessor McGrath noted that Mr Rahmanzi had not completely recovered from a motor vehicle accident in 2017 that resulted in neck and back pain and he went on to consider the issue of pre-existing impairment to the cervical spine.

18. Medical Assessor McGrath noted that Mr Rahmanzi had not fully recovered from the 2017 motor accident but was working and receiving minimal treatment. He opined that there were objective observations of a rateable impairment in the neck prior to the motor accident on 30 October 2018 and consequential surgeries. Mr Rahmanzi was receiving treatment from a physiotherapist and exercise physiologist, both of whom recorded signs and symptoms most likely to correlate as diagnostic-related estimates (DRE) category II in the neck region. There was some muscle guarding and probable non-verifiable radicular complaints into the left arm. Under either criterion, he had a DRE category II neck impairment. Accordingly, Medical Assessor McGrath made a 5% WPI deduction for the cervical spine. He concluded that his judgement in this regard took into account the neck pathology, continuing treatment and para-medical observations implying DRE category II prior to the motor accident on 30 October 2018, which he regarded as accurate information.

19. Medical Assessor McGrath made the following assessment of permanent impairment:

    (a)    cervical spine: 5% WPI less 5% WPI from pre-existing causes = 0% WPI;

    (b)    lumbar spine: 5% WPI less 0% WPI from pre-existing causes = 5% WPI, and

    (c)    skin scarring: 1% WPI less 0% WPI from pre-existing causes = 1% WPI.

1. Accordingly, Medical Assessor McGrath assessed the degree of permanent impairment caused by the motor accident as 6% WPI.

EVIDENCE BEFORE THE PANEL

1. The evidence before the Panel consisted of the following:

   (a)    Mr Rahmanzi’s indexed and paginated bundle of documents identified as AD2 on the Commission’s portal (Mr Rahmanzi’s documents);

   (b)    the insurer’s indexed and paginated bundle of documents identified as AD3 on the Commission’s portal (insurer’s documents), and

   (c)    the documents produced by Workers Doctors on 8 June 2023 in response to the Commission’s Direction for Production dated 24 May 2023 identified as AD7 on the Commission’s portal in five parts (DFP documents).

REVIEW OF THE EVIDENCE

Claim form and claim documents

Pre-motor accident

1. On 7 May 2018, Mr Rahmanzi completed a motor accident personal injury claim form (the first claim form) in respect of the motor accident on 23 November 2017.[3]

   [3] Mr Rahmanzi's documents at pages 41-50.

1. Mr Rahmanzi described the motor accident in the first claim form in the following terms:

   “I was travelling straight ahead on Victoria Rd Ermington, the car in front of me suddenly hit the breaks [sic: brakes] as I had my safe distance I hit the breaks [sic: brakes] to not hit the car in front of me thats [sic: that’s] when I got hit from the back.”[4]

   [4] Mr Rahmanzi's documents at page 47.

2. Mr Rahmanzi recorded on the first claim form that he was treated at Westmead Hospital.

3. Mr Rahmanzi recorded on the first claim form that he had injured his neck and had to wear a neck brace for one month. On a diagram of a human body provided in the claim form, he circled the back of his neck, left upper arm and shoulder and right leg.

Post motor accident

1. On 4 November 2018, Mr Rahmanzi completed a motor accident personal injury claim form (the second claim form) in respect of the subject motor accident on 30 October 2018.[5]

   [5] Mr Rahmanzi's documents at pages 51-55.

2. Mr Rahmanzi described the motor accident in the second claim form in the following terms:

   “I was driving in my lane straight when I was hit from the right lane who wanted to change lanes or swerved to my lane hiting [sic: hitting] me off the road onto the footpath.”[6]

   [6] Mr Rahmanzi's documents at page 52.

3. Mr Rahmanzi described his injuries as neck, shoulders, back pain, left arm and left leg. He recorded that he was treated at Royal North Shore Hospital.

4. In response to the question whether he was suffering from an illness or injury affecting the same or similar parts of his body at the time of the motor accident, he recorded:

   “Same injury but not so much of lower back & left leg. I had minor scale (5/10) left leg & lower back pain.”[7]

Treating medical records and reports

[7] Mr Rahmanzi's documents at page 53.

Pre-motor accident

1. On 6 February 2017, Mr Rahmanzi’s Pitt Street Medical Centre clinical records disclosed that Mr Rahmanzi had been assaulted by a work colleague on 28 January 2017 and complained to the attending doctor of still experiencing pain in the left hip, left thigh and lower back and mild numbness in the left foot. Lower limb neurological examination was unremarkable. He was referred for a CT scan.[8]

   [8] Insurer's documents at pages 42-43.

2. On 8 February 2017, Mr Rahmanzi underwent a CT scan of his lumbosacral spine by Dr Liu, radiologist. Dr Liu reported no features of definite nerve root compression or impingement; no significant wedging or loss of lumbar vertebral body height; and no features of sacroiliitis.[9]

   [9] Insurer's documents at page 47.

3. Mr Rahmanzi’s Pitt Street Medical Centre clinical records disclosed that, on 27 February 2017, Mr Rahmanzi complained to the attending doctor of still experiencing back pain. It was noted that a recent CT scan of the lumbar spine was unremarkable.[10]

   [10] Insurer's documents at page 42.

4. On 7 November 2017, Mr Rahmanzi’s Pitt Street Medical Centre clinical records disclosed that Mr Rahmanzi had experienced a stiff neck since that morning with paraesthesiae down the ulnar aspect of his right arm with limited movement of the cervical spine. Movement was especially limited on extension and turning to the right. Mr Rahmanzi was referred for a CT scan of the cervical spine.[11] There was no CT scan report in evidence relating to this referral.

   [11] Insurer's documents at page 41.

5. The NSW Ambulance patient care report dated 23 November 2017 recorded Mr Rahmanzi having been involved in a motor accident and complaining of cervical spine pain and right shoulder pain. He was unable to be extricated from his vehicle due to pain and morphine was administered. A spinal immobilisation collar was applied and Mr Rahmanzi was then extricated from his motor vehicle onto a stretcher.[12]

   [12] Mr Rahmanzi's documents at pages 170-176.

6. Mr Rahmanzi’s Westmead Hospital clinical records in respect of his admission and discharge on 23 November 2017 noted complaints of bad neck pain from whiplash following a motor vehicle collision.[13] On examination, there was persisting tenderness in the neck and very mild lower lumbar tenderness that had been long-standing.[14] A CT scan of the cervical spine did not identify any acute cervical spinal fractures. There was no prevertebral soft tissue thickening and vertebral alignment was satisfactory.[15] Mr Rahmanzi was advised to remain in a cervical collar for two weeks; then follow-up at the hospital’s spinal clinic with flexion/extension X-rays; and then change to an Aspen collar.[16]

   [13] Mr Rahmanzi's documents at page 864.

   [14] Mr Rahmanzi documents at page 865.

   [15] Mr Rahmanzi's documents at page 867.

   [16] Mr Rahmanzi's documents at page 868.

7. On 29 November 2017, Mr Rahmanzi’s Pitt Street Medical Centre clinical records disclosed that Mr Rahmanzi presented in a cervical collar and reported to the attending doctor of being involved in a motor accident on 23 November 2017. He was prescribed pain relieving medication and referred for X-rays.[17]

   [17] Insurer's documents at page 41.

8. On 29 November 2017, Mr Rahmanzi’s Pitt Street Medical Centre clinical records disclosed that Mr Rahmanzi presented in a cervical collar and reported to the attending doctor that his neck pain was not being controlled by Voltaren. He was advised that the X-rays of his cervical spine were reported as normal.[18]

   [18] Insurer's documents at page 40.

9. On 21 December 2017, Mr Rahmanzi’s Pitt Street Medical Centre clinical records disclosed that the attending doctor advised Mr Rahmanzi that the CT scan of his cervical spine was normal. On examination, there was no central tenderness, neck movements were normal and the cervical collar was removed. Mr Rahmanzi was advised to apply for CTP insurance because he would require physiotherapy.[19]

   [19] Insurer's documents at page 40.

10. On 7 May 2018, Dr Muhammed Saleem, Mr Rahmanzi’s general practitioner of the Pitt Street Medical Centre, issued a medical certificate to Mr Rahmanzi describing the injuries he had sustained in the motor accident on 23 November 2017 as neck pain, left shoulder pain and left leg pain. Dr Saleem recommended treatment by way of physiotherapy and Mobic capsules.[20]

    [20] Mr Rahmanzi's documents at page 293.

11. On 29 May 2018, in an allied health recovery request, Mr Andrew Park, physiotherapist, reported objective clinical findings of muscle guarding throughout the upper trapezius, cervical spine range limitations and symptoms reproduced on right and left lateral flexion and at the end range of extension. He diagnosed Mr Rahmanzi as having suffered a whiplash associated disorder from the motor accident on 23 November 2017.[21]

    [21] Mr Rahmanzi's documents at page 186-187.

12. On 1 July 2018, Mr Rahmanzi’s Pitt Street Medical Centre clinical records disclosed that Mr Rahmanzi reported to the attending doctor that Tramal was causing headache and dizziness following the increase in dosage and that his pain became worse with work due to sitting in front of a computer resulting in neck movements causing an aggravation of pain. Rest and physiotherapy was helping. He was advised to take Panadol and Stemetil.[22]

    [22] Insurer's documents at pages 38-39.

13. On 2 July 2018, in an allied health recovery request, Mr Park again reported clinical findings of restricted neck motion, particularly in extension and bilateral lateral flexion. He diagnosed Mr Rahmanzi as having suffered a whiplash associated disorder from the motor accident on 23 November 2017.[23]

    [23] Mr Rahmanzi's documents at page 190-191.

14. On 5 July 2018, Mr Rahmanzi’s Pitt Street Medical Centre clinical records disclosed that Mr Rahmanzi reported to the attending doctor that he continued to experience neck pain and was struggling to work full-time despite undergoing physiotherapy and taking pain relieving medication. On examination, the attending doctor observed what looked like spasm and commented that the physiotherapist had also noted the same. Mr Rahmanzi was prescribed a muscle relaxant to add to his medication.[24]

    [24] Insurer's documents at page 38.

15. On 2 August 2018, Mr Rahmanzi’s Pitt Street Medical Centre clinical records disclosed that Mr Rahmanzi reported to the attending doctor that his neck pain was worse. He had a home visit from the physiotherapist that day and strapping was done on his neck. The attending doctor noted that Mr Rahmanzi required a normal medical certificate with restricted duties.[25]

    [25] Insurer's documents at page 37.

16. On 3 August 2018, Mr Johan Watson, occupational therapist and rehabilitation consultant, of Recovre reported ongoing complaints of neck pain between 6 to 10/10 on the VAS with pain radiating from the right side of the neck to the shoulder and on the left side all the way down to just above the waist. Mr Watson diagnosed Mr Rahmanzi as having suffered a whiplash associated disorder from the motor accident on 23 November 2017.[26]

    [26] Mr Rahmanzi's documents at page 197-198.

17. On 6 September 2018, Mr Rahmanzi’s Pitt Street Medical Centre clinical records disclosed that Mr Rahmanzi reported to the attending doctor that his neck pain had been aggravated and that he was waiting to consult an exercise physiologist. He had been using Panadol and Mobic but that medication was not helping. The attending doctor prescribed Palexia.[27]

    [27] Insurer's documents at page 36.

18. On 25 September 2018, Mr Sean Miller, exercise physiologist, of Guardian Exercise Rehabilitation reported on a pre-exercise assessment with Mr Rahmanzi on

    
    

    21 September 2018. Mr Miller reported preservation of cervical spine flexion. However, cervical spine extension was performed to only 1/2 normal range with pain declared at the end range of motion in all directions. There were muscle guarded behaviours demonstrated throughout the range of motion. There was an onset of left leg and left arm radicular symptoms throughout the assessment. Mr Miller diagnosed Mr Rahmanzi as having suffered a whiplash and lower back injury following the motor accident on 23 November 2017.[28]

    [28] Mr Rahmanzi's documents at page 216-217.

19. On 4 October 2018, Mr Rahmanzi’s Pitt Street Medical Centre clinical records disclosed that Mr Rahmanzi reported to the attending doctor that he had commenced exercise physiology but it had aggravated his back pain and as a result, he required a medical certificate. Mr Rahmanzi’s poor progress was discussed. The attending doctor noted that he could not think of anything else to improve Mr Rahmanzi’s pain. He should continue on oral pain killers and physiotherapy.[29]

    [29] Insurer's documents at page 35.

20. On 23 October 2018, Dr Saleem referred Mr Rahmanzi to a pain management specialist at Sydney Pain management Centre regarding the pain in his neck and left side of the body following the motor accident on 23 November 2017. Dr Saleem noted that Mr Rahmanzi’s progress was very slow and not as per expectation. He was unable to work five days per week and his work capacity was reduced by the doctor to one day per week commencing 23 October 2018.[30]

    [30] Mr Rahmanzi's documents at page 219.

21. In an email from Mr Watson to GIO dated 25 October 2018, he advised that he had spoken with Mr Rahmanzi that day, who reported that his pain was getting worse. He was in constant pain from his neck that travelled down the left side of his body. He had been reviewed by his general practitioner and was referred to a pain specialist.[31]

    [31] Mr Rahmanzi's documents at page 288 and insurer's documents at page 33.

Post motor accident

1. The NSW Ambulance patient care report dated 30 October 2018[32] recorded Mr Rahmanzi as complaining of central and left-sided neck pain being 10/10 on the VAS, radiating down the left shoulder and arm; numbness to the left thigh region; developing headache and lumbar back pain. NSW Fire and Rescue removed car doors and assisted with Mr Rahmanzi’s extraction from his vehicle. Intravenous pain relief was administered and spinal precautions were taken. A pelvic splint was applied. Mr Rahmanzi reported that 11 to 12 months ago he was involved in a motor vehicle accident and sustained a whiplash for which he was currently still receiving physiotherapy and pain management.

   [32] Mr Rahmanzi's documents at pages 177-183.

2. Mr Rahmanzi’s Royal North Shore Hospital clinical records in respect of his admission and discharge on 30 October 2018 noted presenting complaints of severe occipital and temporal headache; cervical spine pain radiating down the left shoulder and the left side of the chest; pain in the lower back; and pain in the left thigh/hip. A previous motor vehicle accident involving whiplash injuries was also noted.[33] A CT scan of the brain and cervical spine identified no acute intracranial haemorrhage or acute intracranial pathology. There was no acute cervical spine fracture. There was a deformity of the anterior thecal sac and moderate canal stenosis at C5/6, due to a central posterior disc protrusion.[34] Pelvic, lumbar spine, chest and left shoulder X-rays detected no abnormalities.[35]

   [33] Mr Rahmanzi's documents at page 1,006.

   [34] Mr Rahmanzi’s documents at page 1,010.

   [35] Mr Rahmanzi’s documents at page 1,007.

3. On 1 November 2018, Mr Rahmanzi’s Pitt Street Medical Centre clinical records disclosed that Mr Rahmanzi reported to Dr Saleem that he had been involved in another motor accident and complained of neck and lower back pain. Dr Saleem queried whether he had aggravated his neck and lower back. Dr Saleem noted that Mr Rahmanzi had undergone CT scans and X-rays in hospital, which had all come back normal. Mr Rahmanzi was advised to lodge a new claim.[36]

   [36] Insurer's documents at page 34.

4. On 12 November 2018, Mr Rahmanzi’s Pitt Street Medical Centre clinical records disclosed that Mr Rahmanzi complained to Dr Saleem of neck pain radiating to the left arm and tingling with numbness. Dr Saleem referred him for an MRI scan of the cervical spine and to a pain specialist. Dr Saleem recommended increasing his dose of Tramal and recommended that he continue taking Mobic.[37]

   [37] Insurer's documents at pages 33-34 and Mr Rahmanzi’s documents at page 224.

5. On 4 December 2018, Mr Rahmanzi underwent a MRI scan of the cervical spine by Dr James Black, radiologist. Dr Black was provided with a history of a motor accident causing neck pain radiating to the left arm. Dr Black reported a central and left paramedian disc protrusion at C5/6 impinging and minimally deforming the left anterior cord surface.[38]

   [38] Mr Rahmanzi's documents at page 225.

6. On 5 December 2018, Mr Rahmanzi’s Pitt Street Medical Centre clinical records disclosed that Mr Rahmanzi complained to Dr Saleem of pain in the lower back with tingling in the left leg. Dr Saleem referred him for a MRI scan of his lumbar spine. They discussed the outcome of the MRI scan of the cervical spine and Dr Saleem recommended a cortisone injection.[39]

   [39] Insurer's documents at pages 32-33.

7. On 5 December 2018, Dr David Gronow, specialist in pain medicine of Sydney Pain Management Centre, reported to Dr Saleem. Dr Gronow concluded that Mr Rahmanzi was presenting with both mechanical cervical and lumbar spine pain following a motor vehicle accident, with the second accident significantly aggravating the symptoms with referred neuropathic pain to his left arm and left leg. The second motor vehicle accident had now made him extremely dysfunctional, with evidence of poor coping and limited functional capacity. He was unable to return to work. He also suffered from psychological comorbidities. Dr Gronow opined that Mr Rahmanzi would benefit from a multidisciplinary pain management program.[40]

   [40] Mr Rahmanzi's documents at pages 226-228.

8. On 10 December 2018, Mr Rahmanzi’s Pitt Street Medical Centre clinical records disclosed that Mr Rahmanzi advised Dr Saleem that he was seen in hospital with left-sided pain and an inability to feel his left leg. He was referred to Dr Suttor and provided with pain relieving medication.[41]

   [41] Insurer's documents at page 32.

9. On 10 December 2018, Mr Rahmanzi underwent a MRI scan of his lumbar spine by Dr Nalayini Balendran, radiologist. Dr Balendran was provided with a clinical history of low back pain radiating to the left thigh and tingling of the left foot. CT scans from 2012 and 2017 were noted. Dr Balendran reported contact on the left exiting L5 nerve root secondary to a tiny left foraminal protrusion; the left L5 nerve root was also contacted by the facet joint arthritic changes at the L4/5 level within the subarticular recess, which was likely responsible for the symptoms; and some possible contact on the right descending L5 nerve root at the level of L4/5.[42]

   [42] Mr Rahmanzi's documents at page 231.

10. On 10 January 2019, Mr Rahmanzi consulted Dr Suttor who, given his ongoing pain issues, recommended that Mr Rahmanzi trial a left C6 nerve root injection and ongoing physiotherapy.[43]

    [43] Mr Rahmanzi's documents at page 434.

11. On 12 January 2019, Mr Rahmanzi underwent a CT-guided left C5/6 foraminal injection by Dr John O’Rourke, radiologist.[44]

    [44] Insurer's documents at pages 52-53.

12. On 5 February 2019, Mr Rahmanzi consulted Dr Suttor in respect of his ongoing neck and lower back complaints. Mr Rahmanzi reported that he had undergone a CT-guided injection of the left C6 nerve root that only gave him three days of relief. He reported ongoing persistent pain issues both in the left arm and the left leg. Such symptoms required presentations to a hospital emergency department. Dr Suttor discussed the surgical options for pain management, namely, a C5/6 anterior cervical discectomy and fusion and a keyhole L4/5 lateral recess decompression. Mr Rahmanzi was to consider the surgical options discussed and revert to Dr Suttor.[45]

    [45] Mr Rahmanzi's documents at page 436.

13. On 26 February 2019, Dr Gronow reported to Dr Saleem that Mr Rahmanzi had attended the Sydney Pain Management Centre on 11 February 2019 to be seen by practitioners in his pain management program. On presentation, Mr Rahmanzi began displaying marked pain behaviours with heavy breathing, crying and an inability to sit down. He was unable to participate in any component of the program and insisted on an ambulance transfer to hospital. There was no obvious physical abnormality on examination. He had increasing pain behaviours with yelling, hitting the walls, moaning, swearing and refusing assistance from staff. He refused to be placed in a more appropriate and comfortable position to help his complaints of back and leg pain. After a case conference discussion, it was apparent that Mr Rahmanzi was not suitable for a pain management program at that time and his program was terminated.[46]

    [46] Mr Rahmanzi's documents at pages 229-230.

14. On 8 March 2019, Mr Rahmanzi consulted Dr Suttor at the latter’s request because of his presentations to Westmead Hospital with complaints of urinary incontinence where no concerning neurologic findings were made. Dr Suttor reported a constellation of symptoms that did not correlate with the imaging findings of Mr Rahmanzi’s spine. The imaging findings were on the mild side, although he had quite significant pain symptoms. In order to make sure that there was no organic pathology that had been missed, he referred Mr Rahmanzi for a MRI scan of his thoracic spine. Dr Suttor noted that, given the developing disparity between his clinical presentations and the imaging findings, surgery may not result in an improved outcome.[47]

    [47] Mr Rahmanzi's documents at page 438.

15. On 27 March 2019, Mr Rahmanzi consulted Dr Sebastian Calvache-Rubio, general practitioner of Workers Doctors, complaining of headaches; neck pain and stiffness radiating into both shoulders and upper arms; left arm weakness; pins and needles in the left hand; upper back pain; lower back pain radiating into both hips and upper legs; bilateral knee pain, clicking and locking; pins and needles in the left foot; trouble sleeping; worry; depression; loss of hope; low energy; loss of motivation; irritability; and frustration. Dr Calvache-Rubio took a history of the two motor accidents. He diagnosed aggravated cervical spine radiculopathy; C4/5 and C6/7 bulging discs; C5/6 disc protrusion; thoracic spine strain; aggravated lumbar spine radiculopathy; L4/5 and L5/S1 disc protrusion with L5 nerve root compression; bilateral knee strain; and post-traumatic stress disorder.[48]

    [48] DFP documents part one at page 6.

1. On 5 April 2019, Mr Rahmanzi underwent a MRI scan of his thoracic spine by Dr O’Rourke. Dr O’Rourke reported no abnormalities in the thoracic spine.[49]

   [49] Mr Rahmanzi's documents at page 236.

2. On 9 April 2019, Dr Coughlan reported to Dr Saleem that Mr Rahmanzi had some lateral recess stenosis at L4/5 although, no obvious instability. There was significant discopathy at C5/6. Dr Coughlan recommended consideration of a C5/6 anterior cervical discectomy and fusion and a lateral recess decompression at L4/5 to decompress the subarticular zones.[50]

   [50] Mr Rahmanzi's documents at page 241.

3. On 12 April 2019, Mr Rahmanzi consulted Dr Khong on the referral of Dr Calvache-Rubio. Dr Khong reported to Workers Doctors and recorded Mr Rahmanzi’s presenting complaints as neck and left arm pain and pins and needles and lower back and left leg pain. Dr Khong took a history of the two motor accidents. Dr Khong noted that the cervical MRI scan demonstrated some degenerative disc disease at C5/6 with some moderate foraminal stenosis at best. However, the symptoms in the arms did not match that level of pathology and so, he referred Mr Rahmanzi for some nerve conduction studies for ulnar neuropathy. He also referred Mr Rahmanzi for bone scans of his neck and lumbar spine to check for any increased uptake in the discs and facet joints.[51]

   [51] Mr Rahmanzi's documents at pages 239-240.

4. On 23 April 2019, Mr Rahmanzi had a telephone consultation with Dr Suttor. Dr Suttor noted in his progress notes that the MRI scan of Mr Rahmanzi’s thoracic spine was normal. Mr Rahmanzi advised him that he was still keen to undergo surgery on his neck and had obtained a second opinion from Dr Coughlan. Dr Suttor explained to Mr Rahmanzi that he was not sure that surgery would help and that, if he wished, he could pursue this issue with Dr Coughlan.[52]

   [52] Mr Rahmanzi's documents at page 440.

5. On 10 May 2019, Mr Rahmanzi underwent a bone scan to evaluate pain in his cervical region with symptoms in the left arm suggestive of radiculopathy by Dr Hans Van der Wall. On 20 May 2019, Dr Van der Wall reported to Dr Khong that the scan findings were consistent with minor degenerative changes in the lower cervical spine and shoulders. There was no focal abnormality to provide an aetiology for Mr Rahmanzi’s symptoms within the cervical spine.[53]

   [53] Mr Rahmanzi's documents at page 256.

6. On 17 May 2019, Mr Rahmanzi underwent nerve conduction studies in respect of his left upper limb pain by Dr Bassel Hassan. Dr Hassan reported to Dr Khong that the studies were normal.[54]

   [54] Mr Rahmanzi's documents at pages 257-258.

7. On 21 June 2019, Mr Rahmanzi consulted Dr Khong, who reported to Dr Calvache-Rubio on the same date. Dr Khong reported that Mr Rahmanzi continued to complain of left sided neck pain radiating down in a C6 distribution with associated numbness. Importantly, a left C6 perineural injection took away his pain completely for two days before it returned. In the light of that, Dr Khong recommended a left C5/6 foraminotomy to decompress the C6 nerve root and replicate the effects of the perineural injection on a more permanent basis and avoid a fusion. Mr Rahmanzi continued to complain of back pain and left leg pain despite any significant neural compression demonstrated on the MRI scan. Dr Khong arranged for him to undergo sequential L5 and S1 perineural injections.[55]

   [55] Mr Rahmanzi's documents at page 243-244.

8. On 8 July 2019, Mr Rahmanzi underwent a CT-guided left L5 perineural steroid injection by Dr Amir Rezaee, radiologist, on the referral of Dr Khong.[56]

   [56] Mr Rahmanzi's documents at page 430.

9. On 19 July 2019, Mr Rahmanzi consulted Dr Khong, who reported to Dr Calvache-Rubio on the same date. Dr Khong reported that Mr Rahmanzi continued to complain of left sided neck and arm pain and noted that he awaited a foraminotomy at St George Hospital. Mr Rahmanzi had undergone a left L5 injection which gave him extremely good pain relief for 2.5 days before the pain returned. The MRI scan demonstrated some possible contact of the left L5 nerve in the lateral recess at L4/5. Whilst it did not appear severe, Mr Rahmanzi’s extremely positive response to the injection made it likely that the compression of the L5 nerve would give him the same results that would persist.[57]

   [57] Mr Rahmanzi's documents at pages 245-247.

10. On 27 August 2019, Mr Rahmanzi underwent a left C5/6 foraminotomy and a left L5 decompression by Dr Khong.[58]

    [58] Mr Rahmanzi's documents at pages 259-261.

11. On 4 October 2019, Mr Rahmanzi consulted Dr Khong, who reported to Dr Calvache-Rubio on the same date. Dr Khong reported that Mr Rahmanzi had made an excellent recovery from surgery. Mr Rahmanzi’s left arm and leg pain were gone. He still had left-sided shoulder and groin pain, worse with certain activities but Dr Khong hoped that would go with time. Mr Rahmanzi no longer walked with the assistance of a crutch and looked much better than pre-operatively.[59]

    [59] Mr Rahmanzi's documents at pages 248-250.

12. On 14 April 2020, Mr Rahmanzi underwent a MRI scan of his cervical spine on the referral of Dr Khong by Dr James Black, radiologist. Dr Black was provided with a history of neck pain. Dr Black reported mild cervical spondylosis; no significant cord compression; and no convincing evidence for nerve impingement at a foraminal level.[60]

    [60] Mr Rahmanzi's documents at page 269.

13. On 15 April 2020, Mr Rahmanzi underwent a MRI scan of his lumbar spine by Dr Black on the referral of Dr Khong. Dr Black was provided with a history of back and left leg pain. Dr Black reported minimal left sided epidural fibrosis post left L4/5 laminectomy; no recurrent disc protrusion; and no neural compression.[61]

    [61] Mr Rahmanzi's documents at page 270.

14. On 16 May 2022, Mr Rahmanzi underwent a bone scan to evaluate cervical and lower back pain with no history of significant trauma to the regions by Dr Van der Wall on the referral of Dr Khong. Dr Van der Wall reported that the scan findings were consistent with degenerative change in the cervical spine, predominantly around the intervertebral disc and facet joints at C5/6. There was no significant change in the intervertebral discs and facet joints of the lumbar spine. The principal functional diagnosis was one of left sacroiliac joint incompetence associated with several tendon enthesopathies and hip impingement.[62]

    [62] Mr Rahmanzi's documents at page 276.

15. On 18 May 2022, Mr Rahmanzi underwent a MRI scan of his cervical spine by Dr Ankur Svrivastava, musculoskeletal radiologist, on the referral of Dr Khong. Dr Svrivastava was provided with a clinical history of neck pain radiating to the left arm and lower back pain. Dr Svrivastava reported no high-grade central canal or neural exit foramen narrowing or nerve root impingement.[63]

    [63] Mr Rahmanzi's documents at page 277.

16. On 18 May 2022, Mr Rahmanzi underwent a MRI scan of his lumbar spine by Dr Svrivastava on the referral of Dr Khong. Dr Svrivastava was provided with a clinical history of left C5/6 foraminectomy; left L5 decompression; persistent neck and left arm pain; radiculopathy; and persistent low back pain and left leg radiculopathy. Dr Svrivastava noted the L4 laminectomy and reported no evidence of perineural fibrosis, no nerve root impingement, no high-grade central canal or neural exit foramen stenosis. There was no pathology identified to account for Mr Rahmanzi’s symptoms. However, if clinically warranted, a left L5 perineural steroid injection could be considered.[64]

    [64] Mr Rahmanzi's documents at page 278.

17. On 21 June 2022, Dr Khong referred Mr Rahmanzi for a left-sided sacroiliac joint injection.[65] At the time of his consultation with Dr Tricia Lai, general practitioner of Workers Doctors, Mr Rahmanzi was still wanting to pursue the left-sided sacroiliac joint injection but there was no evidence that he underwent the procedure.[66]

Medico-legal reports

[65] Mr Rahmanzi's documents at page 279.

[66] DFP documents part 1 at pages 189-190.

Dr Murray Hyde Page

1. On 30 November 2018, Mr Rahmanzi consulted Dr Murray Hyde Page, consultant orthopaedic surgeon, at the request of GIO. Dr Hyde Page prepared a report dated 10 December 2018.[67] Dr Hyde Page took a history of the two motor accidents. He diagnosed a musculo-ligamentous or soft tissue injury to the cervical spine and the lumbar spine as well as traumatic stiffness in the left shoulder in respect of the 23 November 2017 motor accident and an aggravation of the same conditions in the 30 October 2018 motor accident. He did not consider that Mr Rahmanzi’s injuries and condition had stabilised as the second motor accident had only occurred a month previously. Dr Hyde Page considered that Mr Rahmanzi had a DRE I category cervical spine injury from the 2017 motor accident and before he suffered the second motor accident. He considered that Mr Rahmanzi had a DRE II category lumbar spine injury from the 2017 motor accident that had been aggravated by the 2018 motor accident, making it more painful, but it was still a DRE II category lumbar spine injury.

   [67] Mr Rahmanzi's documents at pages 74-85.

2. On 19 December 2018, Dr Hyde Page prepared a supplementary report at the request of GIO. Since his report dated 10 December 2018, he had had the opportunity to review Mr Rahmanzi’s Pitt Street Medical Centre clinical records. In respect of those clinical records, Dr Hyde Page stated:

   “Overall, the notes provided to me first of all indicate that he had a pre-existent problem affecting his lumbar and cervical spine in the months before his first motor vehicle accident. He had previously denied he had had any previous neck or back trouble.

   These notes also confirm that the second motor vehicle accident did aggravate his neck and lower back conditions.”[68]

   [68] Mr Rahmanzi's documents at page 87.

3. On 22 March 2019, Mr Rahmanzi again consulted Dr Hyde Page, this time at the request of the insurer in these proceedings. Dr Hyde Page prepared a report dated 29 March 2019.[69] Dr Hyde Page opined that Mr Rahmanzi presented with very generalised symptoms and appeared to have developed abnormal pain reaction to the motor accident on

   
   

   30 October 2018. He had multiple symptoms affecting not only the left side of his body as well as his neck and back but also problems with memory, sleeping, bladder dysfunction and other generalised symptoms. Overall, it appeared that Mr Rahmanzi had aggravated cervical and lumbar spine conditions, as well as stiffness in his left shoulder that was present before the motor accident on 30 October 2018 and his condition had deteriorated dramatically in the last 12 months with increased symptoms.

   [69] Mr Rahmanzi's documents at pages 89-96.

4. In his report dated 29 March 2019, Dr Hyde Page did not consider that any aggravation caused by the motor accident on 30 October 2018 would have been severe enough for him to need surgery. On examination, Dr Hyde Page was satisfied that Mr Rahmanzi did not have radiculopathy in his upper or lower limbs. There was no evidence of any weakness in his upper and lower limbs. He had normal and equal reflexes. There was no dermatomal sensory change or numbness and he only found glove and stocking numbness in both the upper and lower limbs. Mr Rahmanzi had normal straight leg raise in the lower limbs. Overall, there were no criteria in either the upper or lower limbs to give a diagnosis of radiculopathy as determined by the Guidelines.

5. On 26 June 2020, Mr Rahmanzi again consulted Dr Hyde Page at the request of GIO. Dr Hyde Page prepared a report dated 7 July 2020.[70] On examination, Dr Hyde Page found that Mr Rahmanzi had stiffness in his cervical spine and lumbar spine as well as in his left shoulder. However, he had no radiculopathy in his upper and lower limbs. Mr Rahmanzi continued to have symptoms in his cervical spine and lumbar spine but there had been an improvement since the surgery in August 2019 as he had experienced relief of the radiculopathy in his left arm and left leg. He continued to experience stiffness in his left shoulder. Dr Hyde Page was not prepared to provide a WPI assessment because he had not been provided with the details of the cervical and lumbar spine surgery performed by Dr Khong in August 2019.

   [70] Mr Rahmanzi's documents at pages 97-109.

6. On 29 July 2020, Dr Hyde Page prepared a supplementary report at the request of GIO.[71] Since his report dated 7 July 2020, he had had the opportunity to review Dr Khong’s operation report dated 11 August 2019.

   [71] Mr Rahmanzi's documents at pages 110-112.

7. In respect of the cervical spine, Dr Hyde Page observed that Mr Rahmanzi had ongoing pain and stiffness but no muscle guarding, dysmetria or radicular symptoms. He opined that Mr Rahmanzi had a DRE cervical spine category I injury giving a WPI of 0%. In respect of the lumbar spine, Dr Hyde Page observed that Mr Rahmanzi had stiffness and radicular symptoms down his left leg. He opined that Mr Rahmanzi had a DRE lumbar spine category II injury. Dr Hyde Page considered that Mr Rahmanzi had a DRE lumbar spine category II injury after the motor accident on 23 November 2017 and that he already had that level of injury or WPI (5%) when he had the motor accident on 30 October 2018. In other words, the second motor accident had not changed the level of DRE category or WPI to that which he had after the first motor accident. He assessed the surgical scarring at 0% WPI and went on to assess the left shoulder WPI.

Dr James Bodel

1. On 25 June 2020, Mr Rahmanzi consulted Dr James Bodel, orthopaedic surgeon, at the request of his lawyers. Dr Bodel prepared two reports dated 25 June 2020.[72]

   [72] Mr Rahmanzi's documents at pages 113-124.

2. Dr Bodel took a history of the two motor accidents and summarised the treatment provided after each.

3. Dr Bodel listed Mr Rahmanzi’s current complaints as pain in the neck and at the base of the neck on the left side with referred pain down the left arm and numbness and tingling extending to the thumb and index finger; head down posture or the use of the left arm overhead aggravated the pain; pain in the interscapular region of the thoracic spine; and pain in the lower part of the back and left leg down to the calf and left great toe.

4. Dr Bodel opined that Mr Rahmanzi had clinical signs of persisting radiculopathy in the left arm involving C6 and in the left leg involving S1 after decompressive surgery. However, his level of pain had been significantly improved post-operatively.

5. Dr Bodel opined that the motor accident on 30 October 2018 caused the disc rupture at the C5/6 level and also aggravated some previous pathology at the L4/5 level.

6. Dr Bodel indicated that about one third of the overall level of WPI arose as a result of the injury on 23 November 2017 and two thirds as a result of the motor accident on

   
   

   30 October 2018.

7. Dr Bodel assessed Mr Rahmanzi as having a DRE cervicothoracic category III level of assessable impairment in accordance with the AMA 4 Guides. He had surgery for radiculopathy and has persisting signs of radiculopathy with diminished left biceps reflex and sensory loss in the C6 distribution on the left-hand side involving the thumb and index finger. Dr Bodel assessed a 15% WPI for the cervical spine injury.

8. Dr Bodel assessed Mr Rahmanzi as having a DRE lumbosacral category III level of assessable impairment in accordance with the AMA 4 Guides. He has persisting signs of radiculopathy involving the S1 nerve root on the left-hand side. Dr Bodel assessed a 15% WPI for the lumbar spine injury.

9. Dr Bodel opined that Mr Rahmanzi’s surgical scars were well-healed and did not attract a separate rating under the TEMSKI scale.

10. On 22 July 2020, Dr Bodel prepared a supplementary report at the request of Mr Rahmanzi’s lawyers.[73] In that report, Dr Bodel opined that, clinically, the need for surgery to the cervical spine arose as a result of the motor accident that occurred on 23 November 2017. The need for the lumbar spine surgery occurred as a consequence of the motor accident that occurred on 30 October 2018.

    [73] Mr Rahmanzi's documents at pages 125-126.

Dr Andrew Keller

1. On 13 January 2021, Mr Rahmanzi consulted Dr Andrew Keller, occupational physician, at the request of the lawyers for the insurer. He prepared a report dated 15 January 2021.[74]

   [74] Insurer's documents at pages 274-288.

2. Dr Keller took a history of the two motor accidents and summarised the treatment provided.

3. Dr Keller listed Mr Rahmanzi’s presenting complaints as intermittent daily neck pain of several hours duration, rating up to 6/10 in intensity on the VAS; pain is aggravated by prolonged sitting and walking; intermittent daily left shoulder pain of several hours duration, rating up to 6/10 in intensity on the VAS; and intermittent lower back pain that occurs up to five days per week of several hours duration, rating up to 5/10 in intensity on the VAS.

4. On examination, Dr Keller observed that there was inconsistent restriction of motion in the cervical spine. There was reported altered sensation in the left thumb and index finger not explained by the MRI scan report. There was no evidence of upper limb radiculopathy or wasting. There was inconsistent restriction of motion in both shoulders with no evidence of separate shoulder joint injuries. There was severe restriction of motion in the lumbar spine that was inconsistent with the assessment conducted. There was inconsistent restriction of straight leg raise and inconsistent weakness in the left lower limb not explained by investigation reports to date. There was no evidence of wasting and no signs of radiculopathy.

5. Dr Keller opined that it was plausible that the first motor accident caused a cervical spine soft tissue strain. However, it was not clear to him that it caused the disc injury or any rupture or any need for surgical treatment. Whilst it was plausible that the second motor accident caused a temporary soft tissue strain to the cervical spine and the lumbar spine, it was not clear to Dr Keller that it caused any disc injuries or need for surgery to the cervical spine or the lumbar spine.

6. In respect of WPI, Dr Keller opined that, due to the history of the subject accident suggesting a low force crash unlikely to cause lasting musculoskeletal physical injuries, MRI reports not showing significant traumatic pathology and inconsistent physical findings both of the cervical and lumbar spine on this assessment, it was not clear to him that Mr Rahmanzi had any assessable impairments or injuries to the musculoskeletal system that could be attributed to the effects of the subject accident (30 October 2018).

Dr Dudley O’Sullivan

1. On 13 January 2021, Mr Rahmanzi consulted Dr Dudley O’Sullivan, neurologist, at the request of the lawyers for the insurer. He prepared a report dated 22 January 2021.[75]

   [75] Insurer's documents at pages 289-307.

2. Dr O’Sullivan took a history of the two motor accidents and summarised the treatment provided after each.

3. Dr O’Sullivan opined that Mr Rahmanzi suffered only soft tissue injuries in the motor accident on 23 November 2017. There was no evidence of any neurological abnormality. There was no evidence of radiculopathy.

4. Dr O’Sullivan opined that, in the motor accident on 30 October 2018, Mr Rahmanzi aggravated the soft tissue injury to his cervical spine resulting in the development of a left C6 radiculopathy and produced the left L5 radiculopathy, both of which required surgery. He considered the second accident as being the cause of Mr Rahmanzi’s ongoing symptoms.

5. Dr O’Sullivan opined that, as it had been 18 months since Mr Rahmanzi’s surgery, the aggravation of the injuries to his cervical spine and lumbar spine as a result of the motor accident on 30 October 2018 had now ceased and therefore, his condition had stabilised.

6. In respect of the motor accident on 23 November 2017, Dr O’Sullivan opined that Mr Rahmanzi only sustained a soft tissue injury to his cervical spine, which fell within DRE cervicothoracic category I. Dr O’Sullivan assessed a 0% WPI in respect of the cervical spine injury on 23 November 2017.

1. In respect of the motor accident on 30 October 2018, Dr O’Sullivan opined that, having undergone surgery to his cervical spine, Mr Rahmanzi had a DRE cervicothoracic category III, equating to 15% WPI. In respect of his lumbar spine, Mr Rahmanzi had a DRE lumbosacral category III, having undergone surgery, equating to 15% WPI. Dr O’Sullivan calculated a combined WPI of 28%.

2. On 12 May 2021, Dr O’Sullivan prepared a supplementary report at the request of the insurer’s lawyers.[76]

   [76] Insurer's documents at pages 305-307.

3. In his supplementary report, Dr O’Sullivan revised his calculation of WPI in respect of the cervical spine and the lumbar spine.

4. Dr O’Sullivan referred to the examination of Mr Rahmanzi that he conducted at the consultation on 13 January 2021. He stated that he could not substantiate any evidence to indicate that Mr Rahmanzi had any radiculopathy as defined by the Guidelines. Similarly, he could not establish any evidence of radiculopathy in respect of the lower limb, apart from restriction of straight leg raising on the left at 30° but this caused back pain only and no sciatic stretch pain. Therefore, there was no evidence to indicate signs of radiculopathy affecting his lumbar spine and lower leg.

5. Dr O’Sullivan stated that Mr Rahmanzi had only had a discectomy at the two levels and not a fusion. Therefore, he had to revise his assessment according to the Guidelines and AMA 4 Guides. Using table 73, page 3/110 of the AMA 4 Guides, he now considered that Mr Rahmanzi had a DRE cervicothoracic category II impairment, which equated to 5% WPI. Similarly, using table 72, he considered that Mr Rahmanzi had a DRE lumbosacral category II, which equated to 5% WPI. Dr O’Sullivan calculated a combined WPI of 10%.

6. Dr O’Sullivan stated that he could not determine that there was sufficient evidence of pre-existing permanent impairment at the cervical spine or the lumbar spine as defined by cl 6.31 of the Guidelines. He had reviewed the clinical records provided but did not believe that there was sufficient evidence for him to make any deductions on the basis of the information available.

Dr Thomas Rosenthal

1. On 15 December 2021, Mr Rahmanzi consulted Dr Thomas Rosenthal, specialist occupational physician, at the request of his lawyers. Dr Rosenthal prepared a report dated 22 December 2021.[77]

   [77] Mr Rahmanzi's documents at pages 127-140.

2. Dr Rosenthal took a history of the two motor accidents and summarised the treatment provided after each.

3. On examination, Dr Rosenthal observed that Mr Rahmanzi walked with a stooped posture and antalgic gait. He looked uncomfortable and distressed. There were significant pain behaviours throughout the examination and general reduced movement. There was significant reduction in neck movements, self-restricted in all directions by between half and three quarters. He refused to remove his shirt but upper arm measurements indicated no significant wasting. Power testing generally on the left side demonstrated global reduction in power in his left arm and also in his left leg. There was no anatomically localised muscle weakness and there was no anatomically localised sensory loss. Reflexes were present on both sides. There was no reduction in the left-sided reflexes. There were no neurological deficits in the lower limbs apart from global weakness in the left. He would not get up on his heels or toes or perform a squat.

4. Dr Rosenthal diagnosed Mr Rahmanzi’s injuries in respect of the motor accident on 30 October 2018 as an aggravation of cervical disc disease resulting in a discectomy and an aggravation of lumbar disc disease resulting in discectomy.

5. In respect of prognosis, Dr Rosenthal noted that Mr Rahmanzi had ongoing symptoms. There was abnormal behaviour on presentation and there was a psychological impact on his physical presentation. He opined that, ultimately, this would lead to a poor prognosis generally. Mr Rahmanzi was likely to have ongoing symptoms without any further improvement.

6. Dr Rosenthal observed that Mr Rahmanzi was difficult to assess because, generally, he refused to do a lot of the movements requested of him. Presentation was impacted by pain behaviours that appeared, in terms of function, to be out of proportion with what would be expected. Dr Rosenthal opined that a lot of the activities reported may be self-restricted due to the secondary psychological condition and his chronic pain.

7. On 11 January 2022, Dr Rosenthal prepared a supplementary report in respect of his assessment of WPI at the request of Mr Rahmanzi’s lawyers.[78]

   [78] Mr Rahmanzi's documents at pages 141-145.

8. Dr Rosenthal determined that Mr Rahmanzi had a DRE cervicothoracic category II impairment, having had no clinical evidence of radiculopathy and having had decompression surgery. He assessed WPI at 5%.

9. Dr Rosenthal determined that Mr Rahmanzi had a DRE lumbosacral category II impairment, not having met the criteria for radiculopathy and having had decompressive surgery. He assessed WPI at 5%.

10. In respect of Mr Rahmanzi’s surgical scarring, Dr Rosenthal assessed 1% WPI on the TEMSKI table.

11. In respect of Mr Rahmanzi’s pre-existing conditions, Dr Rosenthal opined that there was no pre-existing impairment as such. Although injuries were still present from the

    
    

    23 November 2017 motor accident, there was no evidence that there was a pre-existing impairment at the time of the motor accident on 30 October 2018. Accordingly, he made no deduction in respect of the cervical spine and lumbar spine assessments.

12. On 6 February 2023, Mr Rahmanzi consulted Dr Rosenthal at the request of his lawyers. Dr Rosenthal prepared a report dated 14 February 2023.[79]

    [79] Mr Rahmanzi's documents at pages 146-157.

13. On this occasion, Dr Rosenthal diagnosed Mr Rahmanzi’s injuries in respect of the motor accident on 30 October 2018 as an aggravation of cervical disc disease resulting in a discectomy; an aggravation of lumbar disc disease resulting in discectomy; and associated chronic neuropathic pain.

14. In respect of the Medical Assessment, Dr Rosenthal was not convinced that there was sufficient evidence to classify Mr Rahmanzi’s neck condition prior to the motor accident on 30 October 2018 as a DRE cervicothoracic category II impairment, where he would need muscle spasm, guarding or clear evidence of a non-verifiable radicular complaint, none of which were clearly recorded within the documents provided to him. Accordingly, Dr Rosenthal concluded that there was no evidence of pre-existing symptomatic impairment to make a deduction for a pre-existing condition. Dr Rosenthal maintained his combined WPI assessment at 11%.

Dr Peter Bentivoglio

1. On 17 February 2022, Mr Rahmanzi consulted Dr Peter Bentivoglio, neurosurgeon, at the request of his lawyers. Dr Bentivoglio prepared two reports dated 28 February 2022.[80]

   [80] Mr Rahmanzi's documents at pages 158-169.

2. Dr Bentivoglio took a history of the two motor accidents and summarised the treatment provided after each.

3. On neurological examination, Dr Bentivoglio observed that there was evidence of L5 radiculopathy with persistent neuropathic pain following his L4/5 discectomy. In the cervical spine, on the right side, there was no evidence of any abnormality but on the left side, there was significant functional giving way. Power was impossible to assess in all muscle groups and reflexes were symmetrical and normal in both upper and lower limbs without evidence of myelopathy.

4. In respect of Mr Rahmanzi’s cervical spine, Dr Bentivoglio diagnosed a C5/6 disc prolapse with left cervical brachialgia with a mild C6 radiculopathy affecting the left arm and some persistent neuropathic pain as a result of the motor accident on 30 October 2018. It was hard to be certain of radiculopathy because Mr Rahmanzi had a lot of functional giving way of all muscle groups in his left arm.

5. In respect of Mr Rahmanzi’s lumbar spine, Dr Bentivoglio diagnosed a L4/5 disc prolapse secondary to the motor accident on 30 October 2018 resulting in surgery. However, there was still evidence of a mild L5 nerve root dysfunction with wasting of the extensor digitorum muscle and mild weakness of extension of his left toe following his discectomy.

6. Dr Bentivoglio was not convinced that he could find any evidence of radiculopathy in the left arm, even though there was still persistent neck pain and arm pain and determined that Mr Rahmanzi had a DRE cervicothoracic category II impairment. He assessed WPI at 5%.

7. Dr Bentivoglio felt that there was still evidence of a mild radiculopathy and determined that Mr Rahmanzi had a DRE lumbosacral category III impairment. He assessed WPI at 10%.

8. Dr Bentivoglio assessed combined WPI at 15%.

Other assessments

Medical Assessor Richard Crane

1. On 10 June 2019, Medical Assessor Richard Crane issued an assessment of minor injury (now known as threshold injury) certificate certifying that the following injuries caused by the motor accident on 30 October 2018 were minor injuries for the purposes of the MAI Act:

   (a)    cervical spine – soft tissue injury;

   (b)    lumbar spine – soft tissue injury;

   (c)    left shoulder – soft tissue injury;

   (d)    right shoulder – soft tissue injury;

   (e)    left arm – soft tissue injury;

   (f)    left leg – soft tissue injury, and

   (g)    tooth 36 – chipped.[81]

   [81] Mr Rahmanzi's documents at pages 56-64.

Medical Assessor Alexander Woo

1. On 9 August 2019, Medical Assessor Alexander Woo issued an assessment of treatment certificate certifying that the cost of certain ambulance attendances and transportations were not reasonable and necessary and were not required to manage Mr Rahmanzi’s chronic pain condition.[82]

   [82] Mr Rahmanzi's documents at pages 65-73.

Medical Assessor Doron Samuell

1. On 2 January 2020, Medical Assessor Doron Samuell issued an assessment of minor injury (now known as threshold injury) certificate certifying:

   (a) Mr Rahmanzi’s adjustment disorder was caused by the motor accident on 30 October 2018 and was a minor injury for the purposes of the MAI Act, and

   (b) Mr Rahmanzi’s somatic symptom disorder was caused by the motor accident on 30 October 2018 and was not a minor injury for the purposes of the MAI Act.[83]

SUBMISSIONS

[83] Insurer's documents at pages 315-323.

Claimant’s submissions

1. Mr Rahmanzi, through his lawyers, provided written submissions dated 6 January 2023 in respect of the Review.[84] The submissions are summarised below.

   [84] Mr Rahmanzi's documents at pages 17-23.

2. Mr Rahmanzi submitted that Medical Assessor McGrath:

   (a)    failed to specify objective evidence of pre-existing symptomatic permanent impairment;

   (b)    failed to engage with evidence in a critical issue;

   (c)    incorrectly applied the Guidelines with respect to a deduction for pre-existing impairment, and

   (d)    failed to provide adequate reasons.

3. In order for a deduction for pre-existing impairment to be correctly made in accordance with the Guidelines, the following is required:

   (a)    objective evidence of pre-existing symptomatic permanent impairment;

   (b)    the permanent impairment must be in the same region at the time of the accident, and

   (c)    accurate information and data on both impairments.

4. The Guidelines require more than the objective observations of a rateable impairment in respect of a pre-existing symptomatic permanent impairment referred to by Medical Assessor McGrath. Objective evidence of a rateable pre-existing symptomatic permanent impairment in the same region at the time of the motor accident is required. Such objective evidence is a far higher bar than the para-medical observations relied on by Medical Assessor McGrath.

5. Although there was objective evidence of symptomology before Medical Assessor McGrath, it was not objective evidence of permanent impairment because Mr Rahmanzi would have had to have already reached maximum medical improvement. Medical Assessor McGrath was silent on the issue of whether maximum medical improvement had been reached in respect of the alleged impairment from the first motor accident. There could not have been permanent impairment if Mr Rahmanzi had not reached maximum medical improvement.

6. Medical Assessor McGrath erred by accepting information gathered by an allied health treatment provider at face value to form his own determination of permanent impairment.

7. The present case is different from one where there was actual evidence of permanent impairment prior to the motor accident. Clauses 6.31 and 6.32 of the Guidelines envisage a scenario where a claimant has had permanent impairment previously assessed. Absent this, the Guidelines would require a high level of accuracy in the medical evidence being relied on. At a minimum, this would require evidence of a specialist medical practitioner such as a neurosurgeon or an orthopaedic surgeon.

8. Medical Assessor McGrath did not comment on or consider the reports of Dr Hyde Page or Dr O’Sullivan.

9. Medical Assessor McGrath’s consideration of Mr Rahmanzi’s neck pathology, continuing treatment and para-medical observations implying a DRE category II impairment could not be considered accurate information and data within the meaning of cl 6.32 of the Guidelines.

10. It was incumbent on Medical Assessor McGrath to clarify the specific objective evidence he relied on in making the significant deduction he did. He failed to set out the actual path of reasoning which led to his ultimate conclusion.

11. Under cl 6.31 of the Guidelines, the possible presence of pre-existing symptomatic permanent impairment should have been ignored. At its highest, the information relied on by Medical Assessor McGrath was evidence of symptomatology in the same area. There was insufficient objective evidence of symptomatic permanent impairment.

Insurer’s submissions

1. The insurer provided written submissions dated 23 January 2023 in respect of the Review.[85] The submissions are summarised below.

   [85] Insurer's documents at pages 18-23.

2. Mr Rahmanzi’s submissions have not pointed to any authority that limits “objective evidence” to medical practitioners or medico-legal opinions for the purpose of cl 6.31 of the Guidelines. There is no requirement of this nature in the Guidelines. On the contrary, recent Commission Review Panel decisions indicate treating records are adequate as “objective evidence” under cl 6.31 of the Guidelines, in order for a Medical Assessor to deduct pre-existing permanent impairment: Fisher v Insurance Australia Limited t/as NRMA Insurance (Fisher)[86] and Vassallo v AAI Limited t/as GIO (Vassallo).[87]

   [86] Fisher v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMP 27.

   [87] Vassallo v AAI Limited t/as GIO [2022] NSWPICMP 517.

3. Fisher and Vassallo demonstrate that a Medical Assessor is not strictly required to rely on medico-legal evidence for there to be pre-existing impairment deductible under cl 6.31 of the Guidelines. There is no authority for Mr Rahmanzi’s proposition that there must be medico-legal evidence of impairment.

4. Fisher plainly demonstrates that physiotherapy records coupled with radiology evidence can be objective evidence for the purpose of cl 6.31 of the Guidelines.

5. Further, Mr Rahmanzi’s submissions disregarded Medical Assessor McGrath’s objective observations of neck pain, muscle guarding and radicular symptoms before the second accident, which were consistent with an assessment of a DRE category II impairment in respect of the cervical spine.

6. Mr Rahmanzi submitted that the cervical spine would only yield pre-existing impairment if that injury had stabilised prior to the second accident. Such argument was rejected by the Supreme Court of NSW in Allianz Australian Insurance Ltd v Motor Accidents Authority NSW.[88] The decision reasoned that cl 6.31 is to be read in conjunction with cls 6.19 and 6.21. The latter two clauses provide that evaluations of impairment must be made at the time of assessment and only if impairment is permanent and stable. The correct construction of cl 6.31 of the Guidelines, as held by the Supreme Court of NSW, is that pre-existing impairment can be assessed for the first accident even if the claimant had not reached maximum medical improvement before the second accident.

   [88] Allianz Australian Insurance Limited v Motor Accidents Authority NSW [2011] NSWSC 102.

7. Mr Rahmanzi submitted that Medical Assessor McGrath failed to address or consider the medico-legal evidence of Dr Hyde Page and Dr O’Sullivan. The failure to refer to such evidence does not immediately amount to a failure to consider material. A Medical Assessor is not required to specify in the reasons for decision accompanying the certificate why he did or did not accept certain matters or why he did not consider a matter to be relevant to the evaluation of impairment – although of course, the Medical Assessor may have chosen to do so. The Medical Assessor’s only duty is to supply reasons for the decision after undertaking the assessment in accordance with the legislation and in compliance with the Guidelines: Dunbar v Allianz Australia Insurance Limited (Dunbar).[89] Medical Assessor McGrath’s divergences from Dr Hyde Page and Dr O’Sullivan’s findings does not equate to a failure to consider those reports altogether.

   [89] Dunbar v Allianz Australia Insurance Limited [2015] NSWSC 119.

THE RE-EXAMINATION

1. Mr Rahmanzi attended a Panel medical examination with Medical Assessor Home on 27 July 2023 in the company of his sister, Khatira Rahmanzi. The history was obtained directly from Mr Rahmanzi.

Past medical history

1. Mr Rahmanzi did not recall any history of neck or back pain prior to a first motor vehicle accident in 2017. In the prior motor vehicle accident, he was driving to work when hit from the rear in a 70kmph zone. He recalled that he experienced subsequent symptoms of neck pain, pain radiating to the left arm and less prominent pain in his lower back radiating to his left leg. He attended his general practitioner. He was seen by a physiotherapist with therapy delayed until May 2018. He confirmed that he received ongoing treatment with medication including paracetamol, Mobic, Tramadol and Palexia. He was unable to tolerate the stronger analgesia due to symptoms of drowsiness and dizziness.

2. Mr Rahmanzi confirmed that he attended an exercise physiologist for supervised exercise. He was unable to undertake many of the exercises provided due to symptom exacerbation. In particular, he recalled exacerbation of neck pain.

3. Mr Rahmanzi confirmed that in October 2018, he was referred by his general practitioner to a pain specialist to assess and manage his ongoing neck pain complaint. Despite his symptoms, he continued to work as a business manager at a Mazda car dealership.

4. Mr Rahmanzi confirmed that he was experiencing difficulty coping with the work but persisted due to financial necessity and concerns about job security.

Details of the motor accident – 30 October 2018

1. Mr Rahmanzi reported that he experienced injuries in the motor accident on 30 October 2018 as the unaccompanied seat belted driver of a Toyota Corolla sedan travelling on Victoria Road, Top Ryde in the left hand lane. He said a car in the middle lane moved across, impacting his vehicle at the level of his driver’s side door. His car was pushed off to the left, over a kerb and onto the footpath. He recalled that he was cut out of the car by emergency personnel.

History of treatment and history following the motor accident

1. Mr Rahmanzi was taken to Westmead Hospital with early symptoms of pain in his neck and left shoulder girdle with the pain radiating down his left arm, chest pain and lower back pain. He underwent CT trauma studies including CT scans of the brain and spine, chest X-ray and pelvic X-ray. He was treated with analgesia and sent home.

2. Soon thereafter, Mr Rahmanzi attended his general practitioner. He was referred for MRI scan imaging. Subsequently, he received conservative management including physical therapy and hydrotherapy. He recalled the use of strong analgesia. He returned to his physiotherapist.

3. Mr Rahmanzi confirmed that he was subsequently referred for investigation of symptoms of upper and lower limb paraesthesia and numbness. He attended Dr Suttor and later, Dr Coughlan and Dr Khong. After a period of uncertainty, he underwent surgical management, performed by Dr Khong, neurosurgeon, on 27 August 2019 consisting of a left C5/6 foraminotomy, a left L5 laminectomy and L4/5 decompression. He recalled that the surgery was effective in relieving pre-operative symptoms of left upper limb paraesthesia that had involved his left index and middle digits and left leg pain that involved the lateral aspect of his left calf. He recalled that he attended a brief period of physical therapy in the period leading up to the COVID-19 restrictions in March 2020. He said that funding for further treatment was not approved.

1. Mr Rahmanzi has since managed his symptoms with medication. He takes Gabapentin 300mg twice daily, Lovan one tablet in the morning, Melatonin one tablet at night and a mixture of ibuprofen and paracetamol up to six to eight tablets daily. He has attended periods of hydrotherapy. He is undertaking walking for exercise. He says that he is keen to access further physical therapies and hydrotherapy treatment.

2. Mr Rahmanzi has not returned to work since the motor accident.

Current symptoms

1. Mr Rahmanzi states that he experiences intermittent neck pain, varying with activity. The pain is more prominent on the left side. He describes greater restriction of motion when turning to his left. The pain is of average intensity of 4 to 5/10 using a visual analogue scale (VAS). The pain extends down to the shoulder. There is occasional pain in the left arm above the elbow. There are no distal symptoms of pain, paraesthesia or numbness. He described a general feeling of weakness in his left arm.

2. In the lower back, Mr Rahmanzi described constant lower back pain, of average intensity of 6 to 7/10 on the VAS felt across the lower back but more severe on the left side. There was exacerbation of pain with coughing and sneezing. There was no related bowel or bladder dysfunction. He described occasional radiation of pain to the back of the left thigh. There was no distal radiation of pain. There was no complaint of lower limb paraesthesia or numbness. He described a general feeling of weakness in the left lower extremity as a whole.

Functional capacity and reported tolerances

1. Mr Rahmanzi is right hand dominant.

2. Mr Rahmanzi described a sitting tolerance of 5 to 15 minutes. He avoids driving. There are very little other physical activities. He says that he does not undertake crouching, kneeling or stair climbing.

3. Mr Rahmanzi’s sleep pattern is disrupted. He estimated three to four hours of broken sleep. He obtains assistance from his family with dressing but is otherwise independent for activities of self-care.

4. Mr Rahmanzi is able to lift and carry up to 2kg. He says that he usually walks with the aid of a walking stick held in his right hand for balance.

Relevant personal details

1. Mr Rahmanzi is in a de facto relationship of two years duration with children aged four and seven. He says that his relationship has been on and off since the motor accident. He does not engage in any domestic chores, cooking or gardening.

2. Mr Rahmanzi has not resumed previous hobbies of boating, fishing and bike riding which he undertook before the 2017 motor accident.

Clinical examination

1. On examination, Mr Rahmanzi is a 32 year old male, standing 174cm and weighing 58kg. He presents to the examination walking with the aid of a stick, held in his right hand which he uses intermittently.

Cervical spine

1. Examination of the cervical spine revealed normal spinal curvature. There was no muscle spasm. Cervical flexion was performed to 3/4 normal range, extension 1/5 normal range, right rotation to 4/5 normal range, left rotation 1/2 normal range, right lateral flexion 1/2 normal range and left lateral flexion to 1/4 normal range. There was muscle guarding during left sided motion.

2. The neurological examination of the upper extremities revealed no muscle wasting. The right forearm circumference measured 5mm larger than the left. The right and left arms were symmetrical. There was give way weakness when testing myotomal power in the left upper extremity which involved all muscle groups. There was no true myotomal weakness. There was normal sensibility throughout the upper extremities. The deep tendon reflexes were symmetrically preserved.

Lumbar spine

1. Examination of the lumbosacral spine revealed normal spinal curvature. There was no muscle spasm. Active motion measured flexion 1/2 normal range, extension 1/4 normal range, right lateral flexion 1/2 normal range, left lateral flexion 1/2 normal range. There was muscle guarding during lumbar extension. Straight leg raise was performed to 40° bilaterally in a seated position and 40° bilaterally in a supine position. The sciatic sign was negative bilaterally.

2. There was no muscle wasting. The right thigh was 5mm larger than the left and the right and left calf were symmetrical, measured at 29cm on each side. There was normal sensibility throughout the lower extremities. The deep tendon reflexes were symmetrically preserved. There was give way weakness when testing myotomal power in all muscle groups in the lower extremity.

Scarring

1. There was a healed vertical midline scar in the neck measuring 3.5cm x 8mm, darker than the surrounding skin, mild trophic change, no contour defect and no tethering. The scar would be visible with usual clothing. The appearance is seen in the photograph below.

   [image unable to render]

1. There was a 3cm x 2mm midline lumbar scar with mild contour depression superiorly, no visible suture marks, no trophic change and no tethering as seen in the photograph below.

   [image unable to render]

DIAGNOSTIC IMAGING

Pre-accident

1. CT scans of the cervical spine dated 21 December 2017 reportedly demonstrated a posterior central disc herniation at C5/6 resulting in mild spinal canal narrowing.

Post accident

1. CT scans of the cervical spine dated 4 December 2018 demonstrated a central and left paramedian disc protrusion at C5/6, displacing the cord and causing mild deformity of the cord anteriorly on the left. There was no foraminal nerve root compression. At C6/7, there was a broad based disc bulge, no disc protrusion.

2. MRI scans of the lumbar spine dated 10 December 2018 demonstrated a small right foraminal disc protrusion contacting the right descending L5 nerve root within the subarticular recess. There was no compromise of the exiting nerve roots. There was some contact on the descending L5 nerve root within the subarticular recess, secondary to the facet joint arthritic changes seen bilaterally. There was a further tiny foraminal disc protrusion at L5/S1 contacting the left exiting L5 nerve root.

3. It is noted that a CT guided left C5/6 foraminal injection was performed on 14 January 2019.

DIAGNOSIS AND CAUSATION

1. Prior to the motor accident on 30 October 2018, Mr Rahmanzi was suffering from chronic neck pain with intermittent radiation of pain into the left arm. Mr Rahmanzi described intermittent pain in the lower back radiating to the left leg. He confirmed that his neck pain was intrusive and affected his activities.

2. Mr Rahmanzi confirmed that he was suffering from chronic pain and was referred to a pain specialist within the month prior to the motor accident on 30 October 2018.

3. The Panel is satisfied and finds that, in the motor accident on 30 October 2018, Mr Rahmanzi suffered the following injuries:

   (a)    cervical spine – an aggravation of underlying degenerative changes at C5/6 with development of left sided radicular symptoms conforming to a left C6 pattern, for which a C5/6 discectomy was performed, and

   (b)    lumbar spine – an aggravation of underlying lumbar spondylosis at L4/5 and L5/S1 with a subsequent left L5 laminectomy/L4/5 decompression to manage symptoms of left lower limb paraesthesia.

4. Sensory symptoms of paraesthesia and numbness resolved after the subsequent C5/6 and L4/5 laminectomy.

PERMANENT IMPAIRMENT

1. Permanent impairment is determined using the methodology set out in the AMA 4 Guides and part 6 of the Guidelines.

2. The Panel is satisfied and finds that the condition of Mr Rahmanzi’s cervical spine and lumbar spine arising from the motor accident on 23 November 2017 had stabilised at the time of the Review and was permanent.

3. The Panel is satisfied and finds that the condition of Mr Rahmanzi’s cervical spine and lumbar spine arising from the motor accident on 30 October 2018 had stabilised at the time of the Review and was permanent.

Cervical spine

1. The Panel is satisfied and finds that there is a DRE cervicothoracic category II impairment rating. There are complaints of neck pain. There is spinal dysmetria evident.

2. The criteria for a diagnosis of DRE cervicothoracic category III impairment rating is not established as the criteria for radiculopathy are not found in accordance with cl 6.138 of the Guidelines, which are as follows:

   (a)    loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 of the Guidelines);

   (b)    positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 of the Guidelines);

   (c)    muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 of the Guidelines);

   (d)    muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and

   (e)    reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.

3. None of the criteria are met.

4. A 5% WPI rating arises in accordance with the methodology set out in the AMA 4 Guides, Chapter 3, Page 104.

5. In relation to the pre-existing cervical spine condition, the Panel has considered a deduction for the pre-existing impairment using cls 6.31 to 6.33 of the Guidelines.

6. The capacity of an 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.”

7. The Panel is satisfied and find that there is sufficient objective medical evidence that Mr Rahmanzi’s cervical spine condition prior to the motor accident would have attracted a cervical spine category II impairment rating.

8. Reference is made to the following findings in the pre-accident medical records:

   (a)    the Guardian Exercise Assessment document dated 23 November 2017 referred to neck pain radiating to the left arm;

   (b)    the medical certificate dated 7 May 2018 detailed complaints, at that time, of neck pain, left shoulder pain and left leg pain;

   (c)    the Allied Health Recovery Request #1 dated 29 May 2018 documented objective clinical findings of muscle guarding throughout the upper trapezius, neck pain limited and symptoms reproduced on right and left lateral flexion and at the end range of extension;

   (d)    the Allied Health Recovery Request #2 dated 2 July 2018 again detailed clinical findings of restricted neck motion, particularly in extension and bilateral lateral flexion;

   (e)    the Recovre document dated 3 August 2018 documented ongoing complaints of neck pain between 6 to 10/10 on the VAS with pain radiating from the right side of the neck to the shoulder and on the left side all the way down to the waist;

   (f)    the Guardian Exercise Rehabilitation report of 25 September 2018, completed by Mr Sean Miller, an exercise physiologist, pertained to an examination of 21 September 2018 in which there was documented preservation of cervical spine flexion but cervical spine extension was performed to only 1/2 normal range, with pain declared at the end range of motion in all directions;

   (g)    Mr Rahmanzi confirmed that he subsequently attended his general practitioner, Dr Saleem and was referred to a pain specialist on 23 October 2018, only one week prior to the motor accident, with complaints of intrusive neck pain extending to the left side of the body, causing Dr Saleem to opine that Mr Rahmanzi was unable to work five days per week and reduce his work capacity to one day per week commencing 23 October 2018, and

   (h)    this history was consistent with the records of Mr Rahmanzi’s treating general practitioner and his rehabilitation consultant, Johan Watson, in correspondence dated 25 October 2018.

9. The Panel is satisfied and finds that the medical evidence is sufficient to determine that, at the time just prior to the motor accident on 30 October 2018, Mr Rahmanzi continued to suffer from intrusive neck pain that was causing restricted neck motion with dysmetria, which would attract a DRE cervicothoracic category II impairment rating.

10. Using the principles set out in cls 6.31 to 6.33 of the Guidelines, the quality of the information is sufficient to determine that the pre-existing cervical spine problem would attract a 5% WPI for a DRE cervicothoracic category II impairment rating. Subtracting this from the current impairment, the impairment from the subject motor accident in respect of the cervical spine is 0%.

Lumbar spine

1. The Panel is satisfied and finds that the clinical presentation is consistent with a DRE lumbosacral category II impairment rating. There are complaints of low back pain. There is spinal dysmetria. There is muscle guarding.

2. The clinical findings required for a diagnosis of a lumbar radiculopathy are not met.

3. The Panel finds a 5% WPI rating arises in accordance with the methodology set out in the AMA 4 Guides, Chapter 3, Page 102.

4. Whilst Mr Rahmanzi experienced pre-existing lower back pain, the symptoms were of a mild nature. The referred symptoms to the left leg did not follow a radicular pattern based upon his history prior to the motor accident.

5. The Panel is satisfied and finds that Mr Rahmanzi’s presentation of lower back pain in the pre-accident period would attract a DRE lumbar spine category I impairment rating. There is no evidence that his impairment would have been assessed greater than DRE lumbosacral category I impairment rating based on the medical information.

Scarring

1. The surgical scarring to Mr Rahmanzi’s neck and lower back is rated using the table for the evaluation of minor skin impairment (TEMSKI) scale as follows:

   (a)    Mr Rahmanzi is conscious of his posterior cervical spine scar;

   (b)    some parts of the scar or skin condition contrast with the surrounding skin as a result of pigmentary change;

   (c)    Mr Rahmanzi is able to locate the neck scar;

   (d)    there is trophic change evident to touch;

   (e)    the suture marks are not visible;

   (f)    the anatomic location of the neck scar is visible with usual clothing;

   (g)    there is minor contour defect;

   (h)    there is no effect on any activities of daily living arising from the scar itself;

   (i)    there is no treatment required for the scar, and

   (j)    there is no adherence.

2. Using the principle of best fit, the Panel finds that a 1% WPI impairment arises.

FINDINGS

1. The Panel adopts the re-examination findings, diagnosis and conclusions of
   Medical Assessor Home and adds the following brief reasons.

2. 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[90] and Insurance Australia Ltd v Marsh.[91]

   [90] Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45].

   [91] Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21], [64].

3. Clause 6.31 of the Guidelines does not limit the “objective evidence of a pre-existing symptomatic impairment” being recorded by medical practitioners or medico-legal specialists. The Panel is satisfied and finds that the quality of the pre-motor accident medical records referred to in [233] above and Mr Rahmanzi’s history to Medical Assessor Home on re-examination is sufficient to determine that Mr Rahmanzi’s pre-existing cervical spine condition attracts a DRE cervicothoracic category II impairment rating resulting in a 5% WPI, which must be subtracted from the current WPI value of 5%.

4. The Panel rejects Mr Rahmanzi’s submission that, on the evidence, there could not have been permanent impairment in respect of his cervical spine and lumbar spine conditions arising from the motor accident on 23 November 2017 at the time of the motor accident on 30 October 2018. The submission is misconceived as it fails to consider cl 6.21 of the Guidelines, which states that the evaluation of permanent impairment should only consider the impairment as it is at the time of the assessment. In this case, the evaluation of permanent impairment is made at the time of the Review. Clause 6.31 should be read in conjunction with cls 6.19 and 6.21 of the Guidelines.

5. Allianz Australian Insurance Ltd v Motor Accidents Authority NSW[92] involved a claim under the Motor Accidents Compensation Act 1999 (the MAC Act) and the relevant Motor Accident Guidelines for the assessment of permanent impairment at the time with provisions similar to cls 6.19, 6.21 and 6.31 of the Guidelines. In summary, the Court relevantly determined:

   (a)    that, for the equivalent of cl 6.31 of the Guidelines to be engaged, it is not necessary that the impairment arising from an initial accident be permanent at the time of a subsequent accident, and

   (b)    the permanency of a pre-existing impairment is to be determined as at the time of the assessment and not as at the time of the subsequent motor accident, whether that impairment arises directly from the motor accident in question or is a pre-existing or subsequent impairment.

   [92] Allianz Australian Insurance Limited v Motor Accidents Authority NSW [2011] NSWSC 102.

6. The case supports the proposition that, where a claimant sustains injuries in an initial motor accident and at the time of a subsequent motor accident those injuries are exacerbated and there is ongoing treatment for those injuries which cannot be regarded as having stabilised, a Medical Assessor will be required to conduct an assessment of whole person impairment arising from the initial motor accident despite the unknown permanency of the injuries at the time of the subsequent motor accident.

7. The Panel assesses Mr Rahmanzi’s permanent impairment as follows:

   (a)    cervical spine: 5% WPI less 5% WPI from pre-existing causes = 0% WPI;

   (b)    lumbar spine: 5% WPI less 0% WPI from pre-existing causes = 5% WPI, and

   (c)    skin scarring: 1% WPI less 0% WPI from pre-existing causes = 1% WPI.

8. Accordingly, the Panel assesses the combined degree of permanent impairment caused by the motor accident on 30 October 2018 as 6% WPI.

CONCLUSION

1. The certificate of Medical Assessor McGrath dated 7 December 2022 is confirmed as the Panel have also assessed impairment at not greater than 10%.