Sekuloska v AAI Limited t/as AAMI
[2025] NSWPICMP 189
•20 March 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Sekuloska v AAI Limited t/as AAMI [2025] NSWPICMP 189 |
CLAIMANT: | Violeta Sekuloska |
INSURER: | AAI limited t/as AAMI |
REVIEW PANEL | |
MEMBER: | Jeremy Lum |
MEDICAL ASSESSOR: | David Gorman |
MEDICAL ASSESSOR: | Clive Kenna |
DATE OF DECISION: | 20 March 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; permanent impairment dispute; claimant suffered injuries to her neck, right shoulder, lower back, and right knee as a result of a motor accident; the claimant also claimed a consequential left shoulder injury due to favouring her injured right shoulder; the Review Panel noted that the only evidence of a consequential injury was in the claimant’s statement some 19 months after the motor accident and did not refer to the activities or symptoms which could have caused a condition or injury to the left shoulder; the Review Panel also expected the claimant would have sought medical attention to her left shoulder and had investigations performed if she had symptoms 6-12 months after the motor accident as mentioned in a medico-legal report; Review Panel therefore did not accept a consequential left shoulder injury causally related to the motor accident; in any event the left shoulder range of motion at the time of the panel re-examination would have resulted in a whole person impairment (WPI) of 0%; Review Panel assessed the other accident-related injuries as right shoulder 7% WPI, and right knee 2% WPI which combined to give 9% WPI; in relation to the lumbar spine the Review Panel noted pain in the weeks immediately before the motor accident but there was no certainty of any impairment; there was no impairment found at the time of the Review Panel’s re-examination; Held – the total WPI of 9% was the same as the original Medical Assessment Certificate (MAC) however the Review Panel found the lumbar spine to be causally related; MAC revoked and a new certificate issued. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Certificate issued under Division 7.5 of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate of Medical Assessor Alan Home dated (a) The Review Panel certifies the following injuries were caused by the motor accident; (i) cervical spine – soft tissue injury – no radiculopathy; (ii) right shoulder – soft tissue injury, supraspinatus tendon tear; (iii) thoracic spine – soft tissue injury – no radiculopathy; (iv) lumbar spine – soft tissue injury – no radiculopathy; (v) right knee – patellofemoral cartilage damage; (vi) left ankle – soft tissue injury – resolved, and (vii) right ankle – consequential injury – resolved. (b) The Review Panel finds that the above injuries result in a whole person impairment of 9% which is not greater than 10%. |
STATEMENT OF REASONS
BACKGROUND
Violeta Sekuloska (the claimant) was involved in a motor accident on 28 February 2019.
The claimant had just left her home and driving along her street when a car on her right suddenly crashed into the right side of her vehicle. She had pain in her neck, right shoulder, middle back, lower back which went down into her right leg and right knee.
The claimant made a claim for personal injury benefits with AAI limited t/as AAMI (the insurer), the third-party insurer of the vehicle that she says caused the accident.
A medical dispute arose about whether the degree of the claimant’s whole person impairment (WPI) is greater than 10% WPI. If there is a dispute about the degree of a claimant’s WPI, damages for non-economic loss[1] cannot be awarded and disputes must be referred to a Medical Assessor for determination.
[1] See Division 4.3 of the MAI Act.
On 10 September 2024, Medical Assessor Alan Home assessed the claimant’s injuries as 9% WPI which is a WPI of not greater than 10%.
The claimant lodged an application with the Personal Injury Commission (Commission) seeking a review of the medical assessment.
On 29 October 2024, a delegate of the President, Ms Brittliff, accepted the application for review and referred the matter to this Review Panel (the Panel) to conduct the Review proceedings.
MEDICAL ASSESSMENT UNDER REVIEW
Medical Assessor Home was referred the following injuries for assessment of WPI:
· injury to cervical spine – aggravation of underlying degenerative change;
· injury to thoracic spine – soft tissue injury;
· injury to lumbar spine – aggravation of underlying degenerative change;
· injury to right shoulder – full thickness tear of the supraspinatus tendon;
· injury to right knee – post-traumatic cartilage damage to the right patellofemoral joint;
· consequential injury to the left shoulder as a result of overuse of the left shoulder;
· left foot – soft tissue injury, and
· consequential injury to right foot – soft tissue injury.
Medical Assessor Home accepted that there were accident-related injuries to the right knee and right shoulder because of early complaints noted in the documentation. He also found a whiplash injury to the neck.
The Medical Assessor did not accept an accident-related injury to the lumbar spine due to an absence of lower back pain in the initial medical documents.
The Medical Assessor felt that there was a pre-accident lower back condition as the Fairfield Medical Centre notes detailed premorbid complaints of a one-month duration for which there was physical therapy treatment, including on the morning of the motor accident. The Medical Assessor also did not think the motor accident caused an aggravation of this pre-existing condition, due to the claimant’s premorbid history.
As for the alleged consequential left shoulder injury or condition, the Medical Assessor did not accept this was due to overuse of the left shoulder. He stated that the claimant reported minimal activity since the accident. She was not working. She was not performing heavy domestic chores. The claimant also could not recall the timing of the onset of left shoulder pain. The Medical Assessor noted that the left shoulder complaints were mild and that there was a very mild restriction of motion at the time of the medical assessment. The Medical Assessor concluded that the left shoulder condition was not related to the motor accident.
The alleged injuries to both feet were also found to be not accident-related as the claimant reported resolution of any previous foot pain.
For the injuries found to be accident-related, Medical Assessor Home tabulated his assessment of the claimant’s WPI as follows:
| Body Part or System | AMA4 Guides/Guidelines References (chapter/page/table) | Permanent (YES/NO) | Current %WPI* | %WPI* from pre-existing OR subsequent causes | %WPI* due to motor accident | |
| 1 | Cervical spine | AMA4, Chapter 3, Page 103 | YES | 0 | 0 | 0 |
| 2 | Thoracic spine | AMA4, Chapter 3, Page 106 | YES | 0 | 0 | 0 |
| 3 | Right Shoulder | Figures 38, 41, 44, AMA4, pages 43, 44, 45 | YES | 7 | 0 | 7 |
| 4 | Right knee | Table 62, AMA4, page 83 footnote | 2 | 0 | 2 | |
| TOTAL | 9% |
* %WPI = percentage whole person impairment
Medical Assessor Home considered there to be no apportionment to be made for
pre-existing impairment. No allowance was required for the effects of treatment.
Medical Assessor Home concluded that the claimant’s total combined WPI was 9%.
ISSUES FOR DETERMINATION
Claimant’s submissions
The claimant’s review submissions allege that the Medical Assessor failed to consider and reconcile his own earlier “Medical Assessment Certificate” dated 18 November 2019 which found the lumbar spine injury to be causally related to the motor accident. It is submitted this constitutes an inconsistency in the two reports of the Medical Assessor.
The claimant also says the Medical Assessor failed to properly apply the causation provisions of the Motor Accident Guidelines (the Guidelines) with respect to finding the left shoulder injury was not causally related to the motor accident. Specifically, whether the accident could have and did cause the worsening of a pre-existing medical condition.
In addition, it is submitted that the Medical Assessor should have put the causation issue to the claimant and asked her to explain her post-accident symptoms and treatment with respect to the injuries to the lumbar spine and left shoulder. Thus, essentially, it is asserted that the Medical Assessor denied the claimant procedural fairness.
The claimant’s original submissions in reply to the insurer’s original application dated
3 March 2024 were also considered but they do not add to the Panel’s understanding of the issues in dispute.
Insurer’s submissions
The insurer says the Medical Assessor is not required to reconcile an earlier certificate from an unrelated dispute. Nor is the Medical Assessor required to address every medical opinion that was before him.[2]
[2] Dunbar v Allianz Australia Insurance Limited [2015] NSWSC 119.
The insurer asserts that the Medical Assessor should only consider the impairment as it is at the time of the assessment as required under cl 6.21 of the Guidelines. It is submitted that the Medical Assessor provided extensive, easy to follow reasoning on the causation decision, applied the correct test of causation, and applied the tests of consistency to his clinical examination.
The insurer’s original application submissions refer to its evidence in support of a finding that the claimant’s degree of WPI resulting from the claimant’s involvement in the subject accident is not greater than 10%.
REVIEW OF THE EVIDENCE
General observations
On 1 November 2024, the Panel issued a direction to the parties requiring indexed and paginated bundles of the information they relied upon. The Panel stated that unless documents are uploaded to the review file, the Panel would not be able to read and consider those documents. The parties responded with the lodgement of bundles – the claimant’s bundle comprising of pages 1-613 and the insurer’s bundle comprising of pages
1-726.
The Panel has read the documentation relied upon by the parties. Given the voluminous nature of the material, the Panel will only specifically refer to material that is relevant to the resolution of the permanent impairment dispute and the issues in dispute.
Claim documents
Application for personal injury benefits signed 23 March 2019-
Claimant states that she felt nothing at the time of the accident as she was very stressed and her hands were shaking. About an hour later, she felt some pain in her neck, right side shoulder, middle back and lower back going down to her right leg and right knee.
Certificate of capacity dated 28 March 2019
-
Dr Tomasevic, general practitioner (GP), diagnosed accident-related injuries as “soft tissue injuries & facet joint strains to neck, back, soft tissue injuries to right shoulder, right hip, right knee, right lower limb, anxiety, abdominal pain.”
Medico-legal reports
Dr Uthum Dias, occupational physician, report dated 21 May 2024 – Found accident-related injuries and impairment (in parentheses) to the claimant’s cervical spine (5%), thoracic spine (5%), lumbar spine (5%), right shoulder (8%), left shoulder (5%) and right knee (4%). Dr Dias noted that the claimant did not have pre-existing injuries/conditions affecting her shoulders, thoracic spine or knees before the accident. There was radiological evidence of pre-existing mild degenerative change in the cervical spine and lumbar spine. There was previous history of lower back pain and the claimant was seeing her GP for mild non-specific lower back pain in early February 2019. There was also pre-existing mild non-specific neck pain reported in 2017 but has not been re-reported since. Dr Dias felt the accident caused an aggravation of pre-existing degenerative changes in the cervical spine and lumbar spine. Due to overcompensation for her right shoulder condition, the claimant developed a consequential left shoulder injury, which began to manifest in the 6 to 12 months following the accident and has persisted ever since.
Dr Dias was also asked to comment on the opinion expressed in Dr Bentivoglio’s supplementary report dated 28 April 2021 where Dr Bentivoglio changed his opinion regarding causality, based on the report of Dr McIntosh, a biomechanical expert. Dr Dias states that no significant medical weight should be given to the biomechanical report as far more evidentiary weight should be given to clinical evidence i.e. early complaints (within a week of the accident) to the neck, back, right shoulder and right knee made to the claimant’s long-term treating GP, Dr Tomasevic.
Dr Richard Sekel, occupational medicine, report dated 30 August 2024 – Despite initially denying having any low back pain before the accident, after being advised the GP records indicated otherwise, the claimant recalled attending Dr Atiq Mehraby several weeks before the accident and had several physiotherapy sessions in that same practice from Tulsi Kaukshik Tilwa, for low back pain. These sessions were on 7 February2019, 14 February2019 and 28 February2019 (morning of motor accident) for treatment of low back pain, resulting in difficulty getting out of bed, “worse with activities”. Flexion was reduced to fingers to the knees and other back movements were also reduced to half of normal range, which was identical to the movements observed on the day of Dr Sekel’s examination. Also noted previous record of neck stiffness with reduced right rotation in the Fairfield West Medical Centre record dated 13 September2017.
Dr Sekel opined that the accident caused soft tissue injuries to the cervical spine, thoracic spine and lumbar spine which “would have resolved in the initial 6 to 12 weeks without long-term complications”. The right knee was found to be normal.
The tear of the supraspinatus tendon in the right shoulder, which, following consideration of Dr Korber’s opinion was a partial tear, was considered on balance to be not caused or permanently aggravated by the accident. This finding was based on the biomechanical reports of Dr McIntosh dated 18 December 2020 and 29 January2022 and the report of radiologist Dr Korber dated 30 March 2021. Dr Sekel also found inconsistencies in the range of motion of the right shoulder (three measurements for each plane) which supported Dr Sekel’s finding that the right shoulder injury was not causally related to the accident.
Dr Andrew McIntosh, biomechanical engineer, report dated 18 December 2020 – Concluded that the claimant’s injuries in total (including alleged aggravation) are not consistent with “…the likely biomechanical forces in the accident.” Soreness arising from a potential right shoulder impact or other short duration general soreness could not be excluded. However, the collision was not considered severe enough to result in a full-thickness tear of the supraspinatus tendon.
Dr Andrew McIntosh supplementary report dated 21 January 2021 – Dr McIntosh was requested to review the Certificate of Medical Assessor Alan Home dated 18 November 2019. He concluded that the Certificate did not alter his original conclusions. Right knee and shoulder injuries are not applicable to the subject accident because of the low crash severity, absence of intrusion, control of the claimant’s movement and likely low magnitude forces in any contact between the right side of the claimant’s body and the vehicle interior.
Dr John Korber, radiologist, report dated 30 March 2021 – From the radiology, found a partial tear of the supraspinatus which, on balance, is degenerative and not trauma related. Dr Korber had difficulty imagining how the articular surface of the tendon could be disrupted by trauma without involving the whole tendon. The right knee showed no features of trauma. The softening of cartilage is due to early patellofemoral degenerative change and not due to the motor accident.
Dr John Bentivoglio, orthopaedic surgeon, report dated 8 February 2021 – Opined that the claimant’s complaints in her right knee and right shoulder were caused by the motor accident. The claimant had previous asymptomatic degenerative changes in her cervical spine and lumbar spine that sustained discal damage secondary to the injury in the motor accident. WPI assessment was cervical spine 5%, lumbar spine 5%, right knee, 2% and right shoulder 7%. Combined WPI was 18%.
Dr John Bentivoglio supplementary report dated 28 April 2021 – Dr Bentivoglio reviewed the reports of Dr Korber and Dr McIntosh and agreed with their opinions namely that the claimant’s pre-existing abnormalities, the low rate of impact in the motor accident and the amount of damage done to the vehicle, the claimant could not have sustained any physical injuries.
Dr Stephen Rimmer, orthopaedic surgeon, report dated 1 June 2023 – Complaints of right sided neck pain. Cervical spine active range of motion was: forward flexion chin on chest, extension 45º, left and right lateral rotation 75º. No guarding, no documented neurological impairment.
Right shoulder active range of motion was flexion 160º, extension 50º, abduction 160º, adduction 40º, external rotation 80º and internal rotation 60º. Power of supraspinatus was 5/5 and pain-free. Negative impingement test. Tone, power, sensation and reflexes were all present and symmetrical.
It was noted that no investigations were before Dr Rimmer.
Dr Rimmer found that the cervical spine and right shoulder injuries were causally related to the motor accident. Impairment evaluation was cervical spine 0% WPI (DRE I), right shoulder 2% WPI (based on range of motion).
Dr Peter Bentivoglio, neurosurgeon, reports dated 9 June 2023 and 4 July 2023 – Noted that diagnostic tests revealed pre-existing significant cervical spine degenerative disease that had become symptomatic because of the motor accident. Examination revealed decreased neck movement looking to the right and decreased right shoulder movement. Measurements were not provided for the shoulder movement with no impairment evaluation. Diagnosis was cervical brachialgia into the right arm but no radiculopathy and assessed at DRE II or 5%.
Previous Medical Assessment Certificates
Previous Certificate of Medical Assessor Home dated 18 November 2019 – Assessed a “minor injury” dispute. The Medical Assessor noted “no past history of spinal complaints.” Found accident-related injuries to the cervical spine (aggravation of underlying degenerative change), thoracic spine (soft tissue injury) and lumbar spine (aggravation of underlying degenerative change) which were minor injuries. The injuries to the right shoulder (full thickness tear of the supraspinatus) and right knee (post traumatic cartilage damage to the right patellofemoral joint) were also accident-related and were non-minor injuries. It was considered that there was early documentation of pain in the neck, mid back, lower back, right hip and right knee and across the shoulders. The claimant recalled striking her right knee on the dashboard at the time of the accident. The Medical Assessor considered the impact of the other car to the driver’s side of the claimant’s vehicle, which could have caused the right knee injury through direct impact due to the forces involved and the mechanism of the accident.
Certificate of Medical Assessor Wijetunga dated 14 March 2023 – Assessed a “minor injury” dispute. Noted a pre-accident episode of neck pain in 2013 but nil further described. Found an accident-related Whiplash Associated Disorder to the cervical spine which is a soft tissue injury. The same diagnosis was made to the accident-related injury to the thoracic spine. Noted that there was no direct injury to the shoulder but that a lateral injury “most probably resulted in her outstretched arm resisting movement of the steering wheel.” Given that there were no other potential external contributors, (such as occupation involving manual handling), the claimant’s age (significant degeneration would not be expected and the majority of supraspinatus tears in women tends to be above 60 years old), it is plausible that the mechanism of injury aggravated underlying milder pathology of the right shoulder resulting in an articulate tear of the supraspinatus. This was considered a non-minor injury. With respect to the knee, the claimant was noted to have no prior symptoms. After the accident she described knee pain. The right knee injury was therefore found to be causally related to the accident but had resolved. The lumbar spine injury was not considered to be accident-related. The claimant was unable to clarify her pre-accident lower back pain and the clinical records document a month history of lower back symptoms in the same month of the accident. The accident was also not of sufficient severity to result in any forced flexion of the lumbar spine.
Clinical notes and treating reports
Health Check Family Medical Practice
Dr Amber Hartley entry dated 28 February 2019 – Noted motor vehicle accident today. Pain in neck, right shoulder, lower back, right hip.
Dr Predrag Tomasevic entry dated 7 March 2019 – Claimant suffering from pain in neck, mid and lower back, right shoulder, right hip, right knee, right lower limb as well as psychological symptoms. Claimant denied any previous problems with her neck, back, left or right upper or lower limbs.
Allied Health Recovery Request dated 6 May 2019 – Mention of above injuries plus bilateral constant shoulder pain. Unable to do above head activities. Shoulder AROM: Flexion R) 130 degrees, L) 160 degrees.
Mr Andrew Huynh, physiotherapist, letter to Dr Tomasevic dated 31 May 2019 – Noted pain in neck, bilateral shoulders, thoracic and lumbar spine, right hip and knee. Overhead activities aggravate shoulders and is unable to squat due to back and knee pain. Examination revealed decreased ROM in cervical, thoracic and lumbar spine, and shoulders.
Fairfield West Medical Centre
Dr Atiq Mehraby multiple entries February 2019 (pre-accident) – Noted on and off low back pain with similar episodes few years back. Reduced ROM to ½ extension and rotation. No pins and needles, intermittent, superficial. Neck pain.
Radiology
Relevant radiological reports are summarised in the Panel re-examination report below.
RE-EXAMINATION REPORT
At the preliminary conference on 28 January 2025, the Panel determined that the claimant be re-examined. The re-examination report of Medical Assessor Gorman is as follows:
MRP Examination
Assessor David Gorman
Personal Injury Commission Medical Suites
1 Oxford St, Darlinghurst
28 February 2025
Who attended the assessment
Violeta Sekuloska attended alone. She stated that she did not need an interpreter. I agreed that her English was more than adequate for this assessment. Her husband waited in the waiting room.
Pre-accident medical history and relevant personal details
Ms Sekuloska lives with her husband and four dependent children aged 18, 16, 14 and 11 years.
She is a non-smoker and does not drink alcohol.
She is right hand dominant.
At the time of her accident she was helping her husband set up a new construction company. This started in July 2018 and the accident was in February 2029. She does not work now and the company has closed. Previously, she was raising a family. In her youth, she worked as a Lindt Chocolates factory worker up until 2006.
She has been well.
She confirmed that she had lumbar pain and treatment for this in the month before the accident – in fact she had physiotherapy on the morning of the accident.
History of the motor accident
Ms Sekuloska states that on 28 February 2019 she sustained injuries in a motor vehicle accident as the unaccompanied seat-belted driver when a car came from a side street from her right, impacting the driver’s side of her car in the middle of the vehicle. Her vehicle sustained driver’s side damage but was driveable after the accident. Airbags did not deploy.
Police attended the scene. She exchanged details with the other driver and police officers. She recalls that following the accident, she managed to drive her car to her home.
History of symptoms and treatment following the motor accident
She recalls the onset of immediate neck and shoulder pain (more so on the right than the left). She attended her GPs surgery the same day.
Pain soon developed in the lower back, right hip and knee.
She was referred to a physiotherapist and she referred to Dr Matthew Giblin (Orthopedic Surgeon).
She had steroid injections in the right shoulder and right knee.
She became very depressed she reported 2 months after the accident and stayed at home. She has attended a clinical psychologist, Ms Kerrie Watson.
Details of any relevant injuries or conditions sustained since the motor accident
There have been no subsequent injuries or conditions.
Current symptoms
It is now 6 years since the accident. She continues to have low back pain and thoracic spinal pain.
She has intermittent cervical spine pain.
Her right shoulder is still painful and restricted in movement. The left shoulder is only occasionally symptomatic.
She has trouble reaching behind her back to fasten her bra. Her husband helps her with this. She cannot lie on her right shoulder comfortably at night. She avoids overhead lifting. She undertakes most lifting with the left hand.
She is still depressed and emotional she says. She says she is fighting with her kids and husband.
She lives with her mother and father-in-law who help.
She does a light cooking and shopping. Her sister, mother-in-law and mother help.
There is sometimes numbness in the right arm, lasting for up to 30 minutes at a time.
She describes intermittent radiation of pain across the lateral aspect of the right thigh and calf to the ankle. There is no history of lower limb paraesthesia or numbness.
She describes frequent anterior right knee pain, associated with clicking but not locking. There is sometimes a feeling of weakness and wobbling. There is no giving way and no swelling.
Her ankles and feet are no longer symptomatic.
Her sleep pattern is broken. She is independent for activities of self-care but sometimes obtains help with dressing, such as with her bra.
Current and proposed treatment
She is on Celebrex, Losec, Lexapro, Voltaren cream and melatonin.
She has seen Dr Kerrie Watson (Psychologist) regularly since soon after the accident. The last time was in December 2024 – she is awaiting insurance approval for more sessions.
Clinical Examination
General presentation
On examination, Ms Sekuloska is 166cm and weighing 107.3kg. She was 95kg at the time of the accident.
Cervical spine
Examination of the cervical spine reveals normal spinal curvature. There was no muscle guarding or spasm. Cervical flexion and extension are normal range. Right and left rotation normal range. Right and left lateral flexion are performed to normal range. There is no dysmetria.
Tenderness to palpation is overlying the right sided paravertebral musculature.
Neurological examination of the upper extremities reveals normal upper limb power in all muscle groups. There is normal sensation except for the right 4th and 5th fingers which were “numb” at the time of this examination (but this is not all the time she reported). The whole right arm can go “numb” after sleeping in particular. The deep tendon reflexes are symmetrically preserved.
Thoracic spine
There is normal spinal curvature in the thoracic spine. There was no muscle guarding or spasm. Thoracic rotation is symmetrically performed to normal range. There are no radiating symptoms indicated around the chest wall and no sensory change.
Lumbosacral spine
On examination of the lumbosacral spine, there is normal spinal curvature and no muscle guarding or spasm. There is midline tenderness elicited to palpation at the lowest two lumbar segments.
Active motion is performed in spinal flexion to three quarters normal range, extension to three quarters normal range. Right and left lateral flexion is performed to four fifths normal range on each side. There is no dysmetria. There is no muscle guarding.
Straight leg raise is performed to 70° bilaterally. Neurological examination of the lower extremities reveals normal lower limb power. There is normal sensation. The deep tendon reflexes are symmetrically preserved.
Upper extremities
At the right shoulder, there is no muscle wasting. Tenderness is elicited generally over the shoulder. Active motion at the right shoulder is restricted, with reliable measurements obtained by a goniometer as below:
| SHOULDER MOVEMENTS | Right (degrees) | Left (degrees) |
| Flexion | 90 | 180 |
| Extension | 30 | 50 |
| Abduction | 90 | 180 |
| Adduction | 30 | 50 |
| Internal rotation | 80 | 80 |
| External rotation | 90 | 90 |
There is pain on the right elicited with resisted movements across the rotator cuff with impingement signs. She could only reach the lumbar spine on the right.
Examination of the left shoulder is normal. There is full active motion of the left shoulder. Impingement signs are negative. She could reach the T7 spinous process on the left.
Lower extremities
She had a right knee elastic support in place.
There is full active motion of the right and left hip.
On examination of the right knee, there is no abnormality to inspection. There is patellofemoral joint crepitus on palpation. There was no crepitus on the left side.
Ligaments are stable at both right and left knee.
Active range of motion at the right knee is measured 0° extension and 110° flexion. On the left side the range was from 0 to 130°.
The ankle and hindfoot are not tender. There is a normal and equal range of movement in the right and left foot and ankle.
Comments on consistency
She was consistent in their clinical presentation.
Summary of relevant radiological and medical imaging and other investigations
The following radiological and medical imaging reports were considered at the assessment:
MRI right knee, 13 August 2019 – normal appearances of the menisci, cruciate ligaments, collateral ligaments, quadriceps tendons and patella tendon. There is a minimal joint effusion seen. There is grade 2/3 cartilage loss over the apex of the patella with associated minor subchondral degenerative change. Cartilage in the medial and lateral compartments is preserved. There are no abnormal soft tissue mass lesions seen surrounding the knee. A small Baker’s cyst is identified. The medial and lateral patella retinacula are normal. Conclusion: Early patellofemoral joint degenerative change present. No intrinsic derangement of the knee. Small knee joint effusion.
X-ray left foot and ankle: Mild hallux valgus is present. A minor bony spur arises from the posterior part of the plantar aspect of the calcaneus.
Ultrasound left foot, dated 25 September 2019: There are features compatible with the presence of plantar fasciitis.
Ultrasound right shoulder, 24 September 2019 – the supraspinatus tendon is thickened. It has a heterogeneous echogenicity. A full thickness tear is present in the supraspinatus tendon. The gap between the tendon edge is 1cm. The subacromial bursa is thickened. There is no abnormality seen in the long head of biceps. The subscapularis and infraspinatus tendon appears normal. Conclusion: A full thickness tear is present in the supraspinatus tendon on a background of supraspinatus tendonitis. Imaging of the left foot and ankle has been reviewed. This of no clinical significance as the claimant does not report injuries in this region of the body.
MRI imaging – Cervical, Thoracic and Lumbar spine, 15 July 2019: In the cervical spine there were minor degenerative changes only with no nerve root compression, in the thoracic spine there was mild dilatation of the central canal only of uncertain significance and in the lumbar spine there were only mild disc space changes with no canal stenosis or nerve root compression.
Whole body bone scan with SPECT CT imaging, cervical and lumbar spine, dated 2 October 2019: There is no abnormal activity in the cervical or lumbar spine. The focal uptake in the right scapular region could be due to fracture. The increased activity in the sacroiliac joints is consistent with degenerative arthritis or sacroiliitis.
CT guided right knee injection was performed 10 February 2020.
MRI right shoulder, 3 August 2021 – AC joint arthropathy with synovitis, subacromial/subdeltoid bursal inflammation and high-grade partial thickness articular surface supraspinatus tear as well as SLAP tear involving the biceps anchor.
Injection to right shoulder – 16 August 2021.
RELEVANT LEGISLATION
Assessment of permanent impairment
The assessment of the degree of permanent impairment is to be made in accordance with the Guidelines.[3]
[3] See section 7.21 of the MAI Act.
Version 9.3 of the Guidelines applies to the Review. Part 6 deals with the assessment of permanent impairment.
Causation
Causation is dealt with at clauses 6.5-6.7 of the Guidelines. An abridged form of the requirements is contained in clause 6.7 which states:
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.
Further, the provisions of the Civil Liability Act 2002 apply, in particular s 5D and 5E.
DETERMINATIONS
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 and is to be by way of a new assessment of all the matters with which the medical assessment is concerned.[4]
[4] Section 7.26(6) of the MAI Act.
The Panel may confirm the certificate of assessment or revoke that certificate and issue a new certificate as to the matters concerned.[5]
[5] Section 7.26(7) of the MAI Act.
The Panel refers to the above re-examination report of Medical Assessor Gorman and adopts his findings in their entirety. The Panel reconvened on 13 March 2025 and discussed the re-examination report findings before collectively making the below determinations.
Diagnosis, causation and reasons
There is early documentation of pain in the claimant’s neck, mid back, lower back, right hip, right knee and the right shoulder.
With regard the right knee, the claimant recalls that she struck her right knee on the dashboard at the time of the accident. Also, the impact of the other car to the driver’s side of her vehicle could well have caused the right knee injury through direct impact.
The injury to the right shoulder is documented in the Certificate of Capacity dated
28 March 2019 and an Allied Health Recovery Request of May 2019. The right shoulder and right knee conditions were also documented in the Personal Injury Benefits Claim Form dated 29 March 2019, lodged with the insurer a month after the accident.
With respect to the left shoulder, the Panel accepted that the claimant could have had some increased left shoulder discomfort with greater use, particularly given the restrictions in range of motion to her injured right shoulder. However, the Panel would have expected the claimant to have sought medical attention to her left shoulder and had investigations performed if, as Dr Dias states, symptoms arose 6-12 months after the motor accident. The evidence relating to the left shoulder is contained only in the claimant’s statement which is dated some
19 months after the motor accident and does not detail the activities or symptoms which could cause a consequential condition or injury to the left shoulder. The Panel therefore did not accept that the motor accident could have or did in fact cause an injury to the left shoulder by reason of an overuse type injury from favouring the injured right shoulder. In any event, the Panel noted that the left shoulder was only occasionally symptomatic with normal range of motion at the time of the Panel re-examination.
The left ankle had pain after the accident, but it and the right ankle pain have resolved.
The Panel also considered the opinions of biomechanical expert Dr McIntosh and radiologist Dr Korber. The Panel, however, noted the mechanism of the accident, the early complaints of symptoms and the radiology performed and were of the view that the motor accident could have and did cause injury to the claimant.
As such, the Panel was satisfied that the accident caused the following diagnosed injuries:
Summary of injuries referred by the parties
The following injuries WERE caused by the motor accident:
• cervical spine – soft tissue injury – no radiculopathy;
• right shoulder – soft tissue injury, supraspinatus tendon tear;
• thoracic spine – soft tissue injury – no radiculopathy;
• lumbar spine – soft tissue injury – no radiculopathy;
• right knee – patellofemoral cartilage injury to the right knee;
• left ankle – soft tissue injury – resolved, and
• right ankle – consequential injury – resolved.
Statement about permanent impairment
The determination as to permanent impairment is made in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) and Part 6 of the Motor Accident Guidelines.
Permanent impairment is defined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) (p.315) as follows:
“Permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment. A permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment.”
In the Panel’s view, the impairment in this case is permanent being more than five years since the accident, with her symptoms being stable for at least 12 months and for her not having any specific ongoing treatment.
Permanent impairment
Cervical spine
The clinical presentation is consistent with a DRE Cervicothoracic Category I impairment rating. There are complaints of intermittent neck pain. There is no muscle spasm. There is symmetrical spinal motion. There are no verifiable or non-verifiable radicular complaints – the tingling and numbness in the fourth and fifth fingers was only intermittent. There is no muscle guarding. Using Table 73 on page 110 of AMA 4th Edition gives 0% WPI.
Thoracic spine
The clinical presentation is consistent with a DRE Thoraco-lumbar Category I impairment rating. There are complaints of intermittent upper back pain. There is no muscle spasm. There is symmetrical spinal motion. There are no verifiable or non-verifiable radicular complaints. There is no muscle guarding. A 0% WPI rating arises in accordance with Table 74 on page 111 of AMA 4th Edition.
Lumbar spine
The clinical presentation is consistent with a DRE Lumbar-sacral Category I impairment rating. There are complaints of intermittent lower back pain. There is no muscle spasm. There is symmetrical spinal motion. There are no verifiable or non-verifiable radicular complaints. There is no muscle guarding. A 0% WPI rating arises in accordance with Table 72 on page 110 of the AMA 4th Edition.
Right shoulder
Using range of motion methods, using figures 38, 41 and 44 AMA 4, pages 43, 44 and 45 respectively. The limitation in flexion gives 6% upper extremity impairment (UEI), limitation in extension a 1% UEI, limitation in abduction a 4% UEI, limitation in adduction a 1% UEI, limitation in external rotation a 0% UEI and limitation in internal rotation 0% UEI. The total UEI is 12% which converts to a WPI rating of 7% using Table 3, AMA4, page 20.
Right knee
For the right knee condition, impairment is determined using AMA4, Table 62, page 83 Footnote – in a patient with a history of direct trauma, patello-femoral pain and crepitation on physical examination but without joint space narrowing on roentgenograms, a 2% WPI is assigned.
Left ankle
There are no ongoing symptoms and a normal range of motion – therefore no impairment.
Right ankle
There are no ongoing symptoms and a normal range of motion – therefore no impairment.
Combined impairment
The combined WPI of 7% for the shoulder and 2% for the knee is 9%.
Deductions
While she had low back pain in the weeks immediately before the accident, there is no certainty regarding any impairment. In any event, there is 0% WPI now.
Permanent impairment table:
| Body Part or System | AMA Guides/ Guidelines References (chapter/ page/table) | Permanent (YES/NO) | Current %WPI* | %WPI* from pre-existing OR subsequent causes | %WPI* due to motor accident |
| Cervical spine | Table 73, page 110 of AMA 4th Edition | Yes | 0% | 0% | 0% |
| Thoracic spine | Table 74 on page 111 of AMA 4th Edition | Yes | 0% | 0% | 0% |
| Lumbar spine | Table 72 on page 110 of AMA 4th Edition | Yes | 0% | 0% | 0% |
| Left shoulder | Chapter 3 – Figure 38, 41, 44 and Table 3 on page 20 | Yes | 0% | 0% | 0% |
| Right shoulder | Chapter 3 – Figure 38, 41, 44 and Table 3 on page 20 | Yes | 7% | 0% | 7% |
| Left ankle | Nil assessable | Yes | 0% | 0% | 0% |
| Right knee | Chapter 3; Table 64 | Yes | 2% | 0% | 2% |
| Right ankle | Nil assessable | Yes | 0% | 0% | 0% |
*%WPI = percentage whole person impairment
CONCLUSION
The claimant’s WPI as a result of the motor accident is 9% and is not greater than 10%. While the claimant’s WPI is the same as that found by Medical Assessor Home and remains under the 10% WPI threshold, the Panel found that the claimant injured her lumbar spine as a result of the motor accident. The Panel therefore revokes the certificate of Medical Assessor Home dated 10 September 2024.
A new Certificate is issued at the front of the Panel’s determination.
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