Shabeeb v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPICMP 390
•3 June 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Shabeeb v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 390 |
CLAIMANT: | Hussein Shabeeb |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
REVIEW PANEL | |
MEMBER: | Hugh Macken |
MEDICAL ASSESSOR: | David Gorman |
MEDICAL ASSESSOR: | Shane Moloney |
DATE OF DECISION: | 3 June 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); degree of permanent impairment; range of motion of both shoulders; inconsistencies between medical material and history given; passive shoulder movement limited due to pain; claimant use of walking stick; changing range of movement of shoulders; non-verifiable radiculopathy complaints; cervical spine; no signs of radiculopathy from lumbar spine; pre-existing tendinitis and bursitis; lack of shoulder movement entirely voluntary; Held – MAC revoked. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENT Certificate issued under s 7.23(1) of the Motor Accident injuries Act 2017 1. The Review Panel revokes the certificate of Medical Assessor Philip Trustett dated The following injuries caused by the motor accident give rise to a permanent impairment of 0% and IS NOT GREATER THAN 10%: · cervical spine – mechanical injury of cervical spine; · both shoulders – bilateral shoulder impingement; · lumbar spine – mechanical injury of lumbar spine with aggravation of pre-existing asymptomatic degenrative changes, and · knee – patella femoral trauma of the left knee. |
STATEMENT OF REASONS
INTRODUCTION
The claimant is a 46-year-old man who was involved in a motor vehicle accident on
7 June 2021. An application for personal injury benefits was lodged and the claimant sought a concession from the insurer that he had sustained a non-threshold injury. Following a review the insurer confirmed that they did not concede that the claimant’s physical or psychological injuries gave rise to a non-threshold injury. Thereafter an application for assessment of threshold injury was made and, in a certificate dated 8 July 2022 Medical Assessor Michael Hong determined that the claimant had sustained a psychological injury which was a non-threshold injury.
The claimant sought a concession from the insurer that his injuries exceeded 10% whole person impairment. The insurer did not make this concession and accordingly, the claimant lodged an application for assessment of whole person impairment. The claimant was examined by Medical Assessor Philip Truskett on 30 May 2024 who, in a certificate dated
5 June 2024 determined that the claimant had sustained a whole person impairment of 5%. Noting that the claimant was also assessed by Medical Assessor Michael McGlynn in respect to facial scarring who, in a certificate dated 14 June 2024, determined that the claimant sustained a whole person impairment of 0%. A combined certificate was issued of 5% whole person impairment.
The claimant sought a review of the certificate of Medical Assessor Truskett which was opposed by the insurer. The matter was considered by President’s delegate Tajan Baba who, in a certificate dated 17 September 2024 determined that there was a reasonable cause to suspect that the medical certificate was incorrect in a material respect. This was seemingly on the basis that there was a failure to consider the supplementary report of
Dr Davis dated 7 February 2024 as well as a failure to provide an adequate path of reasoning for the assessment of impairment of the claimant’s shoulders. Accordingly, the matter was referred to this Panel.
Following a preliminary review of this matter directions were issued for the parties to upload to the portal the application and annexures together with the reply and annexures for the assessment of whole person impairment. That is, all the material which was before Medical Assessor Truskett together with the late documents lodged in this matter.
An appointment was made for the claimant on 10 January 2025. The claimant did not attend this appointment and a further examination was arranged for 7 May 2021. The panel has received all material which was before Medical Assessor Truskett together with the late documents lodged in this matter.
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 the Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provision provide that a review panel consists of two Medical Assessors and a Member assigned by the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a panel reviewing a decision of a Medical Assessor.
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 matter solely based on the written application.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.
STATUTORY PROVISIONS/GUIDELINES
Section 57 of the Motor Accidents Compensation Act 1999 (MAC Act) defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 and s 60 of the MAC Act together with cls 1.5-1.7 of the Guidelines set out the procedures for referral to one or more medical assessors and the principles to be applied at such assessments.
Mr Shabeeb attended the Commission’s medical suites on 7 May 2025. He was unaccompanied but for an interpreter, Hafez Assoum, NAATI no. CPN5KR53J who was in attendance throughout the interview and examination. His wife remained in the waiting room but came in to help him undress at the time of the examination.
Pre-accident history
Mr Shabeeb migrated from Iraq in 2013 and spent two years at Christmas Island in detention. He states that prior to the accident he had been working as a carpenter doing formwork full-time and part-time as an uber driver.
He lives with his wife and four children.
Mr Shabeeb stated that he was in good health prior to the accident and had no previous injuries. I pointed out that he had an X-ray and ultrasound of both shoulders in 2016 and 2017 for bursitis but he is adamant that this is incorrect and did not occur. I told him that I had viewed the reports that he still maintained that this is incorrect. Furthermore, the general practitioner (GP) had recorded consultation on 22 April 2021 of ongoing low back pain and on 3 June 2021 for chronic low back pain. This last consultation was four days prior to the accident. Mr Shabeeb insists that he only went for a checkup and did not have any previous back pain despite the recording by the treating GP. The panel notes the medical material contradicts the history given by the claimant.
History of motor accident
Mr Shabeeb was the driver of his car and stationary at traffic lights when hit from the rear. He was wearing a seatbelt at the time but airbags were not deployed. He states that he hit the left knee on impact and had a laceration and swelling over the right forehead. He also states at that time he had low back pain, neck pain and bilateral shoulder pain. He told me that he had to be cut out of the car he was trapped in and was then taken by ambulance to Westmead Hospital. No loss of consciousness was recorded. He apparently discharged himself from the hospital as there was a long delay in getting him assessed.
History of symptoms and treatment following the motor accident
Mr Shabeeb consulted his GP the day after the accident and was referred for scans. He returned to Westmead Hospital on the day when it was recorded that he had a haematoma with tenderness over the right frontal and inter orbital facial bones with tenderness over the right acromioclavicular joint but a full range of shoulder movement. There was a superficial laceration to the left leg and left patella tendon tenderness but no effusion and a full range of movement of the left knee. There was nil lumbosacral spine tenderness at that time with slight tenderness over the C3 – 4 cervical spines.
He was referred to Dr Hassan, neurologist who did the neurophysiology report on his right leg due to the right foot numbness. This was reported as a normal study.
Further injuries sustained since the motor accident
Mr Shabeeb stated that he had returned to work for four days and on 12 March 2022 whilst an employee of Perfection Windows, he cut his right shin on glass sheets that fell off the machine. He was taken to Westmead Hospital and due to a subsequent wound infection had split skin grafting. There have been no further motor vehicle accidents.
Review of documentation
The panel notes of the extensive medical material which accompanied this application in particular the clinical notes relating to the claimant. The Panel noted the attendance at
Dr Alasend on 3 June 2021 in which it was noted that he was complaining of, amongst other matters, chronic back pain and depression. The GP notes also record ongoing lower back pain on 22 April 2021.
The panel has reviewed the material of Dr Davies. The Panel notes in his report dated
4 May 2023 found a range of motion of both shoulders which was greater than that of the panel. The panel’s findings on examination were not consistent with those identified by Dr Davies.
The report of Dr Davies dated 5 September 2023 addresses the claimant’s subsequent work injury on 12 March 2022 which was not mentioned in his report of 4 May 2023.
The panel notes there is significant material which addresses alleged inconsistencies in the history given by the claimant. Noting the inconsistencies between the medical material and the claimant’s history given to medical practitioners the panel prefers to base it’s assessment on the clinical examination conducted on 7 May 2025.
Current symptoms
Mr Shabeeb has bilateral shoulder pain which is in the anterolateral region of both shoulders and he gets intermittent pain down both arms to the elbows. He feels weak in both hands and slight numbness in both hands with occasional numbness in the upper arms.
There is central neck pain which is intermittent and low back pain on the right which radiates down the back of his leg including foot and this is associated with numbness and weakness feeling. There is occasional pain in the left knee. Due to unsteadiness, he relies on using a walking stick in the right hand.
He has not driven since the motor vehicle accident and only walks inside the house that he is living in and back yard.
Current treatment
Present treatment is mirtazapine 15 mg One-A-Day, Codapane One-A-Day and tramadol hundred milligrams One-A-Day. No manual therapy is being undertaken at present. He consults his GP when necessary.
Clinical examination
Mr Shabeeb walked in the room with a shuffling gait using a walking stick in his right hand. He had a flat affect and stood frequently during the interview.
He states that he is right-handed. His weight was 91 kg height of 182 cm. His wife helped him undress for the examination.
Cervical spine
On palpation there was tenderness over the lower cervical and upper thoracic spines as well as tenderness over the left cervical paravertebral muscles and trapezius muscles more so on the left. However, there was no guarding or spasm noted in the cervical musculature. On testing range of movement, there was a generalised reduction in neck movement. Flexion/extension was 25% of expected range as was side bending and rotation with no asymmetry.
On neurological examination of the upper limbs, reflexes were of low amplitude but equal with normal power except for bilateral resistance to abduction of both shoulders. There was a global decrease in sensation to the left upper arm and whole left hand including the wrist. No muscle wasting was apparent with the circumference the upper arms 30 cm bilaterally (10 cm above the olecranon process) and in the upper forearms 28 cm bilaterally (5 cm below the olecranon process).
Shoulders
On inspection of the shoulders no muscle wasting was apparent but there was marked tenderness over the left acromioclavicular joint. On passive movement there was a resistance at 70° in flexion or abduction of both shoulders but no crepitus was detected.
Mr Shabeeb stated that passive movement was limited due to pain in the upper arms. It was not possible to assess impingement. Active movements were measured using a goniometer and repeated. Active movement was resistant in all planes.
| Shoulder Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Flexion | 70° | 60° |
| Extension | 10° | 0° |
| Adduction | 0° | 0° |
| Abduction | 10° | 20° |
| Internal Rotation | 0° | 0° |
| External Rotation | 0° | 0° |
I asked Mr Shabeeb why there was minimal movement of both shoulders and he stated that it was too painful to move any further. He insists that this has been since the accident.
Lumbar spine
Mr Shabeeb was unsteady when not using a walking stick and was unable to stand on his heels and toes. On testing range of movement flexion/extension was minimal at about 10°. Side bending was 25% of expected range bilaterally with no asymmetry. Straight leg raise on the left was 60° but limited by knee pain and 50° on the right and limited by thigh pain. When seated both legs were 80° extension and sciatic nerve root tension signs were negative.
On neurological examination of the lower limbs, reflexes were equal and power was diminished but symmetrical. No muscle wasting was apparent with the circumference of the lower thighs 44 cm bilaterally (10 cm above the superior patella pole) and at the maximum circumference of the calves 30 cm bilaterally. On testing for sensation, there was decreased sensation over the lateral left thigh and right shin (related to the surgical procedure) and global numbness in both feet.
On palpation there was marked tenderness bilaterally over the knees and no effusions were noted. On passive movement no crepitus was detected and no ligament laxity.
| Knee Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Flexion | 120° | 120° |
| Extension | 0° | 0° |
There were no inconsistencies at the time of my examination in comparison to previous examinations and showed significant variability to the injury assess report of October 2022 which recorded flexion of the right shoulder at 45 and left 60 and abduction of 35 right and 65° left. Dr Davies in a medicolegal report on 4 May 2023 had a much better range of movement of both shoulders he recorded flexion of the right at 130 and left 100° with abduction of 125 on the right and 80° on the left. Mr Shabeeb insists that there has been no change in range of movement of the shoulders since the accident. I explained to Mr Shabeeb that range of movement could not be used to assess impairment of the shoulders due to this variability.
No radiological studies were available for inspection, although the material included report of radiological studies.
Findings
Cervical spine – soft tissue injury
It was recorded by the ambulance officer Mr Shabeeb had pain in the cervical spine and later on by the treating GP. The Panel accepts that there has been a soft tissue injury to the cervical spine in the subject accident. This is a classification DRE category l which is 0% whole person impairment. On examination there was very limited range of movement but symmetrical and thus no dysmetria. There was no guarding on palpation and no signs of radiculopathy or non-verifiable radicular complaints that conformed to a dermatomal pattern in the upper limbs.
Lumbar spine – soft tissue injury
The treating GP organised a CT of the lumbar spine two days after the accident which recorded mild degenerative changes with no nerve root compression. The Panel accepts that Mr Shabeeb sustained a soft tissue injury to his lumbar spine at the time of the accident. This is a classification DRE category l which is 0% whole person impairment. On examination, there was a limited symmetrical loss of movement in all planes and no guarding on palpation. There were no signs of radiculopathy or non-verifiable radicular complaints in the lower limbs with conformed to a dermatomal pattern. The decreased sensation in both feet is not dermatomal and was investigated with a neurophysiology study by Dr Hassan in August 2022 and reported a normal study.
Left knee – soft tissue injury
There was documentation that Mr Shabeeb bumped his left knee at the time of the accident. The treating GP also recorded pain in the left knee soon after the accident. The Panel accepts that there has been a soft tissue injury to the left knee and on testing range of movement a classification of 0% WPI has been determined using table 38, 41 and 44 of American Medical Association Guides to the Evaluation of Permanent Impairment, 4th edition.
Shoulders – soft tissue injuries
Despite the denial by Mr Shabeeb that he had had no previous injuries to his shoulders , in 2017 it was recorded that tendinitis and bursitis on the right and an ultrasound of the left shoulder on 10 May 2016 reported bursitis. The GP notes of the time recorded recurring shoulder pain specially the right after the fall.
At Westmead Hospital, on 7 June 2021, it was recorded there was pain in the right shoulder but a full range of movement on examination. The GP reported bilateral shoulder pain on
19 July 2021 as well as on 9 June 2021. The ultrasound of both shoulders on 14 June 2021 recorded partial-thickness articular side tears of the supraspinatus tendon with bursitis on the right and partial-thickness tear of the subscapularis tendon.
It is my opinion that the bilateral lack of shoulder movement was entirely voluntary. Medical Assessor Truskett came to the same conclusion. Dr Rosenthal in a medicolegal report observed virtually no shoulder movement in any direction although at that time he was able to remove his T-shirt for the examination. The initial hospital examination reported a full range of movement of the right shoulder.
The panel is of the opinion that the bilateral lack of shoulder movement was entirely voluntary. The panel assessed the degree of impairment for the shoulders at 0%.
Conclusion
Degree of permanent impairment caused by the motor vehicle accident is 0%.
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