Salih v QBE Insurance (Australia) Limited

[2024] NSWPICMP 139

DETERMINATION OF REVIEW PANEL

CITATION:

Salih v QBE Insurance (Australia) Limited [2024] NSWPICMP 139

CLAIMANT:

Ebru Salih

INSURER:

QBE

REVIEW PANEL

MEMBER:

Gary Victor Patterson

MEDICAL ASSESSOR:

Thomas Rosenthal

MEDICAL ASSESSOR:

Drew Dixon

DATE OF DECISION:

8 March 2024

CATCHWORDS:

MOTOR ACCIDENTS – The claimant suffered injury in a motor accident on 15 March 2020 at Moorebank; medical dispute concerning extent of whole person impairment (WPI); no issue as to causation; Medical Assessor (MA) Berry found 9% WPI; Panel finds greater restriction of right shoulder and assesses 7% WPI for that body part; Panel findings otherwise similar to those of MA Berry; Held – certificate revoked; new certificate issued for 13% WPI; no issue as to principle.

DETERMINATIONS MADE:  

CERTIFICATE
REVIEW PANEL ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENT
Certificate issued under s 7.26(7) of the Motor Accident Injuries Act 2017

1.     The Review Panel revokes the certificate dated 1 February 2023 and issues a new certificate determining that:

(a)   the following injuries caused by the motor accident gives rise to a permanent impairment of 13% and IS GREATER THAN 10%:

·        cervical spine – tissue injury;

·        lumbar spine – soft tissue injury;

·        right shoulder – full thickness tear of the supraspinatus tendon;

·        left shoulder – partal thickness tear of supraspinatus tendon (consequential injury), and

·        skin – scarring due to right shoulder surgery.

(b)   The following injuries caused by the motor accident have resolved and do not result in permanent impairment:

•       scarring – abrasions and lacerations.

An assessment of degree of permanent impairment arising from these injuries is not requred.

STATEMENT OF REASONS

INTRODUCTION

1. Ebru Salih (the claimant) was injured in a motor accident on 15 March 2020 at Moorebank (the accident). The claimant was the seat-belted driver of a Nissan Pathfinder 4-wheel drive vehicle. Her daughter was a passenger. While at the intersection of Epson Road and Newbridge Road, the insured vehicle failed to stop at a red light, striking the driver’s side of the claimant’s vehicle. Her airbags deployed. The claimant managed to self-extricate from her vehicle and helped her daughter to the side of the road. Ambulance and police officers attended. The claimant was transported to Liverpool Hospital with her daughter. The claimant remained under observation in the accident and emergency department, underwent investigations and was discharged, a few hours later.

2. The claimant attended her local medical officer because of persistent pain in her neck, back and right shoulder. In January 2021, the claimant underwent arthroscopic surgery of the right shoulder. The claimant was off work for three months.

3. QBE (the insurer) insured the owner and/or driver of the offending motor vehicle for liability to pay the claimant any damages under the Motor Accident Injuries Act 2017 (the Act).

4. There is a dispute between the claimant and the insurer about the degree of permanent impairment under s 4.12 and Schedule 2, cl 2(a) of the Act. This is a medical dispute within the meaning of the Act.[1]

   [1] See Division 7 and Schedule 2, cl 2 of the Act.

5. The claimant was referred for assessment by Medical Assessor Neil Berry who certified as follows:

The following injuries caused by the motor accident give rise to a permanent impairment of 9% and IS NOT GREATER THAN 10%:

·     Cervical spine – soft tissue injury

·     Lumbar spine – soft tissue injury

·     Right shoulder – full thickness tear of the supraspinatus tendon

·     Left shoulder – partial thickness tear of supraspinatus tendon (consequential injury)

·     Skin – scarring due to right shoulder surgery

The following injuries caused by the motor accident have resolved and do not result in permanent impairment:

·     Scarring – abrasions and laceration

1. Medical Assessor Berry assessed 5% whole person impairment for the cervical spine, 0% whole person impairment for the lumbar spine, 3% whole person impairment for the right shoulder, 0% whole person impairment for the left shoulder and 1% whole person impairment for scarring (right shoulder). He made no adjustments for pre-existing/subsequent impairment nor treatment effects.

THE REVIEW

1. The claimant sought a review of Medical Assessor Berry’s certificate on the basis that the assessment was incorrect, within the meaning of s 7.26 of the Act, in a number of material respects. The claimant did not bring the application within the time prescribed by s 7.26(10) of the Act and cl 34 of Procedural Direction PIC 7 (28 days). An application for extension of time was made. It was granted by the President’s delegate on the basis that there would be substantial injustice to the claimant if time for lodging the review application were not extended.

2. Pursuant to s 7.26(5A) of the Act and Schedule 1, cl 14F(2) of the Personal Injury Commission Act 2020 (the PIC Act), the Review Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (the Commission).

3. 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 Review Panel reviewing a decision of a Medical Assessor.[2]

   [2] Section 41(2) of the PIC Act.

4. Rules 127 to 130 of the Personal Injury Commission Rule 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 based solely upon the written application.[3]

   [3] Rule 128 of the PIC Rules.

5. The review is by way of new assessment of all matters with which the medical assessment is concerned.[4]

[4] Section 7.26(6) of the Act.

ASSESSMENT UNDER REVIEW

1. The claimant submitted that Medical Assessor Berry erred in his assessment of the lumbar spine and scarring on the following bases:

   ·        failure to comply with the requirements of both the American Medical Association Guides (AMA4) and the Motor Accident Permanent Impairment Guidelines when undertaking the assessment of the claimant’s injuries and disabilities, and determining the claimant’s level of whole person impairment;

   ·        failure to take into consideration all the material produced by the parties;

   ·        findings that are materially erroneous in relation to the assessment of the claimant’s injuries;

   ·        findings that are substantially inconsistent with the preponderance of the evidence in relation to the assessment of the claimant’s physical injuries, and

   ·        incorrect calculation of the claimant’s level of whole person impairment.

   Accordingly, the claimant submitted that Medical Assessor Berry’s assessment was incorrect in several demonstrable and material respects.

2. In relation to the lumbar spine, the claimant submitted that Medical Assessor Berry’s assessment was at odds with the findings of the claimant’s qualified occupational physician, Dr Uthum Dias, who examined the claimant on 5 May 2022. Upon examination, Dr Dias noted there were radicular symptoms, tenderness, musculo guarding and asymmetric loss of range of movement in the lumbar spine. The claimant noted that Medical Assessor Berry found restricted range of movement in the lumbar spine consistent with a soft tissue injury. The claimant submitted that the claimant satisfies the criteria for Diagnosis-Related Estimates (DRE) II for the lumbosacral spine, which is consistent with the assessment made by Dr Dias of 5% whole person impairment.

3. In relation to the claimant’s post-surgical scarring over her right shoulder region, the claimant submitted that 3% whole person impairment rating is appropriate, as per the Table for the Evaluation of Minor Skin Impairment (TEMSKI) [TR1]  on page 55 of the Motor Accident Permanent Impairment Guidelines, instead of the 1% finding made by Medical Assessor Berry.

4. The claimant submitted that Medical Assessor Berry failed to provide a description of the scar and the skin condition, including the shape, texture and colour. All of those factors are said to be relevant for the purpose of assessing the claimant’s scarring in accordance with the TEMSKI Table.

5. The claimant conceded that Medical Assessor Berry assessed the cervical spine injury correctly. The claimant made no submissions in relation to Medical Assessor Berry’s assessment of the frank injury to the right shoulder and the consequential injury to the left shoulder (resulting from compensatory overuse).

6. The claimant’s review application was opposed by the insurer. In relation to the lumbar spine, the insurer submitted that Medical Assessor Berry did not fall into error. Briefly, the insurer submitted that:

   ·        the claimant misinterprets the AMA4 Guides and does establish how she met the criteria for a DRE II classification, by reference to the assessment of Medical Assessor Berry;

   ·        the claimant’s assertion that she suffers from dysmetria is contrary to Medical Assessor Berry’s determination, and

   ·        Medical Assessor Berry considered the claimant’s treating records, was not bound by the opinions of the claimant’s qualified experts, nor the claimant’s self-reporting, and was entitled to form his own opinions.

   The claimant submitted that the claimant’s objections to Medical Assessor Berry’s certificate represent a disagreement with the outcome, rather than any material error within the certificate, in relation to his assessment of the lumbar spine.

7. In relation to scarring, the insurer submits that Medical Assessor Berry clearly conducted an assessment of the scarring and assessed same with reference to TEMSKI, which he references. The insurer notes that the claimant did not disclose any symptoms or express a view that she was self-conscious of her scarring.

8. The insurer noted that the claimant does not rely on any medical evidence in support of the assertion that Medical Assessor Berry’s scarring assessment is incorrect. The insurer further noted that Dr Dias also assessed 1% for scarring which is consistent with Medical Assessor Berry’s assessment.

9. President’s delegate, Golnaz Mojtahedi, issued a Determination of an Application for Review of a Medical Assessment on 7 July 2023 which stated the satisfaction of the President’s delegate that there is a reasonable cause to suspect that Medical Assessor Berry’s assessment was incorrect in a material respect. The basis of that decision was stated to be Medical Assessor Berry’s failure to address all descriptors in assigning 1% whole person impairment for scarring.

10. Accordingly, the application was accepted and was referred to the Review Panel, which is to assess the following injuries:

    ·        cervical spine – soft tissue injury;

    ·        lumbar spine – soft tissue injury;

    ·        right shoulder – full thickness tear of the supraspinatus tendon;

    ·        left shoulder – partial thickness tear of supraspinatus tendon (consequential injury), and

    ·        skin – scarring due to right shoulder surgery.

    As the claimant accepted Medical Assessor Berry’s assessment of the cervical spine and made no complaint in relation to his assessment of both shoulders, the parties were invited to indicate if the scope of the medical dispute and the re-examination, could be limited to the lumbar spine and right shoulder scarring. The insurer responded, referring to s 7.26(6) of the Act, that the Review Panel ought to conduct a fresh examination of all alleged injuries, which the Panel has done. The claimant did not respond.

MATERIAL BEFORE THE REVIEW PANEL

1. The claimant relied upon the following medical material:

   ·        reports by Dr Yajuvendra Bisht dated 7 April 2022 (x2);

   ·        reports by Dr Uthum Dias dated 5 May 2022 (x2);

   ·        clinical records of Casula Family Practice;

   ·        clinical records of Prime Physiotherapy;

   ·        clinical records of Dr Ray Chin;

   ·        clinical records of Dr Maria Jalinek;

   ·        clinical records of Zen Psychology;

   ·        clinical records of Movement Essentials;

   ·        Liverpool Hospital ED Discharge Referral;

   ·        cervical and lumbar spine CT scan report dated 17 April 2020;

   ·        right shoulder ultrasound report dated 29 July 2020;

   ·        right shoulder ultrasound and cervical and lumbar spine MRI report dated 18 September 2020;

   ·        left shoulder ultrasound report dated 14 October 2020;

   ·        right shoulder MRI report dated 29 October 2020;

   ·        cervical spine MRI report dated 11 October 2021;

   ·        movement Essentials report dated 15 October 2020;

   ·        Zen Psychology report dated 25 August 2020;

   ·        Movement Essentials report dated 24 July 2020;

   ·        AHRR-Psychology report dated 10 September 2020;

   ·        medical certificates from Dr Chin dated 15 December 2020;

   ·        Hospital Medical Certificate dated 16 March 2020;

   ·        Certificates of Capacity – various dates, and

   ·        clinical records of Prime Physiotherapy.

   There is a report dated 5 May 2022 by Dr Uthum Dias, consultant occupational physician, who was qualified by the claimant’s lawyers. Dr Dias took a history that the claimant had previous episodes of discogenic lumbar spinal pains since 2015 for which she had physiotherapy. A CT scan revealed bulging discs in her lower back. The claimant apparently informed Dr Dias that her lower back region was by and large asymptomatic for around four years prior to the subject accident. Dr Dias records that the claimant could not recall any previous injuries or known pre-existing conditions affecting her neck or shoulders prior to the accident.

2. Under the heading SUBSEQUENT PROGRESS, Dr Dias records that the claimant continued to suffer with debilitating symptoms of pain, stiffness and discomfort affecting her cervical spine, right shoulder and lumbar spine, on a continual basis since the accident. He notes that symptoms of pain in her right ankle region resolved within a few weeks. Dr Dias records that the claimant has continued to suffer with sensory symptomology radiating from her neck into her right upper limb and right hand on a continual basis. There is also sharp intermittent pain affecting her right and left thighs.

3. Dr Dias notes that the claimant underwent an arthroscopic right shoulder supraspinatus tendon repair, subacromial decompression and acromioplasty procedure. Following that surgery in January 2021, the claimant developed a post-operative infection, for treatment of which a further hospital admission was required. The claimant has not had any other surgical interventions for management of her injuries. Her treatment has consisted of physiotherapy, analgesia, regular use of topical ointment and hot packs, as well as home exercises.

4. Under the heading CURRENT SYMPTOMS, Dr Dias records that the claimant continues to struggle with ongoing symptoms of pain, stiffness and discomfort affecting her neck, right shoulder and lumbar spine, on a daily basis. Her symptoms of neck pain are associated with pins and needles and numbness, radiating down her right upper limb, to the entirety of her right hand. She also experiences intermittent sharp pain affecting her right and left thighs, radiating from her lumbar spine or region.

5. Under the heading EXAMINATION, Dr Dias records as follows:

   “Cervical spine:
   The cervical spine was normal to inspection. There was tenderness to palpation and moderate muscular guarding. Forward flexion was three quarters of the normal range. Extension was limited to two thirds of the normal range. Lateral flexion and rotation was limited bilaterally.
   Neurological examination of the other limbs:          
   There were complaints of non-specific symptoms of pins and needles, numbness and radicular pain, radiating down the entire right upper limb to the hand, in a non-dermatomal distribution. There were no objective motor or sensory deficits noted. There was no objective clinical evidence of a discrete cervical radiculopathy or peripheral nerve lesion.
   Thoracic spine: 
   The thoracic spine was normal to inspection. There was no evidence of muscular guarding or muscular spasm upon palpation. Lateral rotation was performed to two thirds of the normal range bilaterally. Rotation was limited by lumbar pain and discomfort. There was no objective clinical evidence of thoracic radiculopathy.
   Lumbar spine:  
   The lumbar spine was normal to inspection. There was tenderness to palpation and moderate muscular guarding. Forward flexion was one half of the normal range. Extension was limited to one third of the normal range by pain and discomfort. Lateral flexion on the right was limited to one half of the normal range and on the left to two thirds of the normal range.
   Neurological examination of the lower limbs:          
   Nothing abnormal was found. There was no objective clinical evidence of lumbar radiculopathy or an objective peripheral nerve deficit noted on neurological examination of the lower limbs.
   Shoulders:        
   Four well-healed arthroscopic portal scars were observed. All scars were well healed with a pigmentary contrast with the surrounding skin and minor contour defects. There was moderate wasting of the right deltoid muscle contour. There was tenderness to palpation on the right. There were restrictions of movement upon abduction, flexion and internal rotation. There was a full range of movement in extension, abduction and external rotation. By way of comparison, the left shoulder was normal to inspection, with a full range of movement.
   Right and left arms/forearms:
   Nothing abnormal or sinister was found.”

6. Under the heading DIAGNOSIS, Dr Dias says that the claimant has symptoms and signs consistent with the following conditions:

   ·        chronic cervical spine pain, stiffness and discomfort, with associated non-specific right upper limb sensory symptomatology, secondary to an acute musculo ligamentus strain with associated disc protrusions at C4/C5 and C5/C6 level (Whiplash Associated Disorder Level 2).

   ·        Aggravation of pre-existing largely asymptomatic lumbar spine degenerative disc disease, with an associated L5/S1 disc protrusion, secondary to an acute musculo ligamentus strain.

   ·        Chronic right shoulder impingement syndrome, secondary to a full thickness supraspinatus tendon tear, with associated chronic subacromial bursitis. The symptoms of right shoulder pain, stiffness and discomfort have persisted since right shoulder arthroscopic rotator cuff repair and decompressive acromioplasty.

   ·        Multiple abrasions and bruising to her right and left upper limbs which have resolved.

   Dr Dias opines there is a direct causal relationship between the subject accident and the claimant’s current conditions affecting her neck, right shoulder and lower back. Further, Dr Dias opines that all of the symptomatology and disabilities with respect to the neck and right shoulder regions are wholly attributable to the accident, as is 90% of her lumbar spine condition, with 10% attributable to pre-existing constitutional degenerative changes in the lumbar spine region. Dr Dias thinks that the claimant has a relatively poor prognosis. He then comments in relation to treatment to date, future treatment, need for care/domestic assistance and work capacity, none of which is relevant for the Review Panels’ consideration.

7. In a separate report, Dr Dias assessed 5% whole person impairment for each of the cervicothoracic and lumbosacral spines, 7% whole person impairment for the right shoulder and 1% whole person impairment for her post-surgical right shoulder scarring. That yields 17% whole person impairment combined.

8. The insurer relied upon the following medical material:

   ·        joint report of Dr Raymond Wallace, orthopaedic surgeon, dated 24 January 2022;

   ·        report of Dr Graham Vickery, psychiatrist, dated 3 May 2022;

   ·        NSW ambulance report dated 16 March 2020;

   ·        Liverpool Hospital Emergency Department Discharge Referral dated 16 March 2020;

   ·        CT cervical and lumbar spine dated 2 April 2020;

   ·        ultrasound right shoulder dated 18 September 2020;

   ·        ultrasound left shoulder dated 14 October 2020;

   ·        MRI right shoulder dated 29 October 2020;

   ·        Allied Health Recovery Requests – various dates;

   ·        Certificates of Capacity – various dates;

   ·        reports of Dr Ray Chin, treating orthopaedic surgeon, various dates (1 December 2020 to 12 October 2021);

   ·        report of Dr Richard Walker, treating orthopaedic surgeon, dated 29 September 2020;

   ·        report of Samanta Garrado, physiotherapist;

   ·        reports of Ms Zeina Boutros, treating psychologist;

   ·        records of Casula Family Practice pre and post-accident as at 5 May 2022;

   ·        records of Physio Essentials/Essential Movement;

   ·        records of Zen Psychological Solutions including updated reports ;

   ·        report of Dr Inglis (Howe) Synnott, psychiatrist;

   ·        Certificates of Capacity from 12 December 2021 to 28 March 2023;

   ·        records of Liverpool Hospital;

   ·        records of Prime Physiotherapy, and

   ·        records of Liverpool Family Medical Centre.

1. Dr Raymond Wallace, orthopaedic surgeon, was qualified by the insurer’s solicitors. His report dated 24 January 2022 is relied upon by both parties.

2. Under the heading CLINICAL EXAMINATION, Dr Wallace said that examination of the cervical spine shows no swelling or deformity. He records the range of movement upon flexion, extension, left and right rotation, left and right lateral tilt. There are no tender areas. Neurological examination of her upper limbs shows equal and symmetrical reflex. Her power and light touch sensation are intact. Examination of the shoulders shows restricted range of motion on the left as compared to the right. Examination of her lumbar spine shows no swelling or deformity. The range of movement of forward flexion, extension, left and right lateral tilt, left and right rotation is recorded. There is mild tenderness at the L5 spinous process. Her gait is normal. She has straight leg raising to 50 degrees bilaterally. Neurological examination of her lower limbs shows equal and symmetrical reflex. Her power and light touch sensation are intact. Dr Wallace gives the following DIAGNOSIS:

   a)Musculo ligamentus strain cervical spine

   b)Supraspinatus tendon tear right shoulder

   c)Musculo ligamentus strain lumbar spine[TR2] 

   Dr Wallace opines that the claimant suffered injuries at her cervical spine, right shoulder and lumbar spine, as a result of the accident. Dr Wallace thinks that the claimant has a guarded prognosis for further recovery or function at her spine and right shoulder. He assesses 0% whole person impairment for the cervical spine, 2% whole person impairment for the right shoulder, after allowing for loss of range of movement in the left shoulder, notwithstanding that he describes the left shoulder as “injured”. Dr Wallace finds 0% whole person impairment for the lumbar spine, resulting in 2% whole person impairment as a result of the injuries sustained in the accident. Dr Wallace states that the claimant has suffered no whole person impairment as a result of a pre-existing or unrelated condition.

3. As is often the case, the parties served more than 1000 pages of clinical notes and other primary records of treatment providers. They were directed to specify with particularity (by reference to page and paragraph numbers in their respective paginated bundles of documents), the entries that are said to be relevant to the matters in issue. They failed to comply with that direction. Nevertheless, all of that material has been considered by the Review Panel.

RE-EXAMINATION

1. The claimant was assessed on 25 October 2023 by Medical Assessor Drew Dixon whose report is as follows:

   “This 44 year old patient was the driver of a Nissan Pathfinder four wheel drive wearing a seat belt and was taking her daughter to gymnastics in Moorebank. She was turning at the intersection of Epson Road and Newbridge Road when another vehicle failed to stop at the red light and hit the driver’s side of her vehicle. All air bags deployed. There was no head injury nor loss of consciousness. She was able to self-extricate and helped her daughter, who was the front seat passenger. An ambulance transferred them to Liverpool Hospital. After observation and scans, she was discharged home complaining of persisting pain in her neck and back and right shoulder.
   At the time of the accident she was working in admin for Daikin Australia and was able to return to work, working on line initially and then back at the office.
   On examination on 25 October 2023 she was 160cm tall and weighed 85kg. She presented in a straight forward manner. There was no embellishment. She was consistent on repeat range of motion and measurement of her shoulders.
   There was stiffness of her cervical spine with flexion decreased by one third and extension by one half, associated with pain and lateral rotation to the left decreased by one quarter and that to the right by one third. Lateral flexion was decreased by one third bilaterally. There was tenderness with spasm of her right trapezius muscle. The right supraclavicular brachial plexus was tender. Her cervical foraminal compression test was negative. Her brachial plexus stretch test was positive on the right.
   There were brisk reflexes in her upper limbs which were bilaterally symmetrical. Her distal power was grade 5 out of 5. Her thenar power and intrinsic power and grip strength were grade 5 out of 5 and there was no neurovascular deficit in either hand. There was mild wasting of her right upper extremity, 10cm above the elbow, measuring 31cm on the right and that on the left was 32cm. There was mild wasting of her right forearm 10cm below the elbow, measuring 21cm on the right and 22cm on the left. She had tenderness of the mid and upper cervical facet joints and of the trapezius muscle.
   There was stiffness on elevation of her right shoulder with active abduction 100 degrees, forward flexion 120 degrees, extension 40 degrees, adduction 40 degrees, external rotation 70 degrees and internal rotation 40 degrees and shoulder girdle power on the right was grade 4 out of 5. She had tenderness of the trapezius muscle extending towards the scapula and tenderness of the posterolateral deltoid as far as its insertion. There appeared to be impingement on abduction. Shoulder girdle power on the right was grade 4 out of 5. The inconsistency with previous assessment was explained by cessation of physiotherapy.
   Her arthroscopic portals showed colour contrast and was visible with contour defects and visible suture marks and the claimant is readily able to localise the scars which are visible with a tank top.
   She did sustain multiple abrasions and bruising to her right and left forearms and arms in the subject accident. These have all settled.
   There was a full range of motion of her left shoulder.
   There was stiffness of her lumbar spine with flexion and extension decreased by one third and lateral flexion decreased by one quarter bilaterally. There was tenderness in the mid-line at the L5 level and adjacent lumbosacral facet joints and she reported some radiation of pain into the buttocks. Her straight leg raise was 60 degrees bilaterally and her reflexes were symmetrical and brisk in the lower extremities. She reported some pain in the anterior left thigh and her femoral nerve stretch test was negative. Her sciatic nerve root stretch test was negative. Straight leg raise was 60 degrees bilaterally. Her Babinski signs were negative. There was no objective sensory loss in the lower extremities and power was grade 5 out of 5. There was no erector spinae muscle spasm.
   Her normal gait was slow and toe walking was associated with low back pain and heel walking associated with unsteady gait and pain in her lower back. Her squat test was associated with low back pain. There was no erector spinae muscle spasm.
   It is noted that the claimant had arthroscopic supraspinatus tendon repair with subacromial decompression and acromioplasty surgery to her right shoulder on 28 January 2021 and was in Sydney Southwest Private Hospital for five days after surgery because the procedure was complicated by an infection. She had her shoulder in a sling for six weeks but the post-operative period following shoulder surgery was complicated by infection with the development of campylobacter gastroenteritis three days after the procedure in late 2021 and she required in-patient admission to Liverpool Hospital for four days for IV antibiotics. It took her two weeks to recover from the gastroenteritis.
   In summary, she sustained a whiplash injury to her neck with post traumatic stiffness with dysmetria and direct contusion to her right shoulder with post traumatic stiffness and drooping of the shoulder and required arthroscopic intervention, complicated by infection. Her left shoulder has in the main settled and she had a full range of motion of that shoulder.
   With regard to the range of motion of the right shoulder, it has been 10 months since the previous assessment, wherein it was noted that the claimant had ceased having physiotherapy treatment. It is probable there has been further scarring in the shoulder where she has had her rotator cuff repair and there may be some partial re-tear of the repair with normal activity.
   The claimant suffered two areas of impaction of the right shoulder in the accident. Her vehicle was struck on the driver’s side door and the claimant sustained a seatbelt mark on her right shoulder. The claimant sustained a full thickness rotator cuff tear which required arthroscopic repair. Initially, the claimant seemed to have achieved a reasonable range of movement. Due to ceasing physiotherapy treatment, the claimant appears to have deteriorated, since the previous assessment. My findings were based on the assessment on the day. The claimant was consistent on repetition of range of motion testing of her shoulders.
   In the lumbar spine there is residual lumbar stiffness but no spasm and no radicular complaint apart from some pain radiating to the upper buttocks. She has had subsequent pain in her anterior left thigh with a negative femoral nerve stretch test. Her sciatic nerve root stretch test was negative.
   She does have significant arthroscopic scarring at her right shoulder, presumably due to the complication of post-operative infection following arthroscopic surgery.
   She has been taking Panadol for pain relief. She is unable to tolerate anti-inflammatories due to reflux and takes Valdoxan for post-traumatic stress disorder.
   She has difficulty with household chores such as cooking and cleaning due to right shoulder brachalgia and low back pain and difficulty pegging out of the washing due to shoulder brachalgia. Following her neck strain injury she had difficulty driving due to neck pain and stiffness with difficulty with reverse parking, changing lanes and checking the blind spots. Her neck pain disturbs her sleep.
   She has had difficulty with prolonged driving due to back pain for more than half an hour as sitting in the vehicle aggravates her back pain as does prolonged sitting of more than half an hour when working. She has a standing tolerance of 20 minutes if she is able to move about and a walking tolerance of 15 minutes. She has had intermittent paraesthesia in the right hand and recurrent bending and stooping aggravate her back and her back pain disturbs her sleep. She has difficulty with heavy lifting and carrying due to right shoulder brachalgia and low back pain.
   Radiological investigations
   CT of the cervical spine on 2 April 2020 showed mild disc protrusion at C3/4, C4/5 and C5/6.
   CT of the lumbar spine on 2 Aril 2020 showed a small broad based posterior disc protrusion at L5/S1 without evidence of neural impingement.
   Ultrasound of the right shoulder on 18 September 2020 showed a full thickness supraspinatus tear.
   Ultrasound of the left shoulder on 30 October 2020 showed supraspinatus tendinosis with partial tear.
   MRI of the right shoulder on 29 October 2020 showed a high-grade partial thickness supraspinatus tear with supraspinatus tendinosis.
   Her impairment is as follows.
   That for her cervical spine is DRE II, where she had a whiplash injury with post traumatic stiffness with dysmetria with trapezial muscle spasm without radiculopathy in the upper extremities, which equates to 5% WPI.
   That for the post traumatic stiffness of her right shoulder is from Pie Charts 38, 41 and 44, 11% upper extremity impairment which equates to 7% WPI.
   That for her left shoulder where she had a full range of motion is 0% WPI.
   That for her lumbar spine where she has residual low back pain with symmetrical stiffness and no radiculopathy with brisk reflexes and negative sciatic nerve and femoral nerve stretch test is DRE I, 0% WPI.
   That for her scarring at the right shoulder, where she had 4 arthroscopic portals, the claimant was conscious of the scars, which showed colour contrast with the surrounding skin, as they were pigmented. The claimant was able to readily localise the scars which showed contour defects. The anatomic location is visible when the claimant wears a tank top. As well as the minor contour effect, the claimant was able to readily localise the scars, and remains conscious of them. There was negligible affect on activities of daily living. No treatment is required and there is no adherence. Based on those criteria, utilising the TEMSKI Table 6.18, page 136 of the Motor Accident Guidelines, surgical scarring of the right shoulder results in 1% whole person impairment.
   This gives a total from the Combined Values Chart of 13% whole person impairment.
   There were no symptomatic pre-existing conditions.
   She has reached maximum medical improvement.”

FINDINGS

1. The Review Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[5] The Review Panel adopts the examination findings and reasons of Medical Assessor Dixon with which Medical Assessor Rosenthal concurs.

   [5] Section 7.26(6) of the Act

2. The Review Panel is not required to choose between competing medical opinions and is required to form its own opinion.[6] The Medical Assessors have explained the bases of their assessment which are different to those provided by other medical specialists. The assessment of the lumbar spine made by the Review Panel is different to that of Dr Dias. The assessment of the right shoulder made by the Panel is the same as the assessment made by Dr Dias. The overall assessment made by the Review Panel is similar to that made by Medical Assessor Berry except in relation to the right shoulder. The reasons have been explained. Medical Assessor Dixon found a greater restriction of movement in the right shoulder than did Medical Assessor Berry who examined the claimant some 10 months previously.

   [6] Insurance Australia Group Limited v Keen [2021] NSWCA 287

3. The medical assessment of permanent impairment is undertaken at the time of examination. In that respect, previous assessments are outdated and do not reflect current symptomatology. The Review Panel observes that the findings made by Dr Wallace are at odds with those made all other medical examiners.

CONCLUSION

1. For these reasons, the Review Panel concludes that the certificate issued by Medical Assessor Berry should be revoked. The new certificate appears at the commencement of these reasons.

[TR1]Write in full in first instance

[TR2]If below is not a direct quote, should be (a), (b) etc, not "1.; 2…" If it is a direct quote, needs to be in quotation marks with correct punctuation.