Simkovic v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	Simkovic v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 191
CLAIMANT:	Dejan Simkovic
INSURER:	Insurance Australia Limited trading as NRMA Insurance
REVIEW PANEL
MEMBER:	Susan McTegg
MEDICAL ASSESSOR:	Margaret Gibson
MEDICAL ASSESSOR:	Michael Couch
DATE OF DECISION:	19 March 2024
CATCHWORDS:	MOTOR ACCIDENTS – Medical review of certificate of Medical Assessor (MA) Home; the claimant suffered injury in a motor vehicle accident on 20 November 2020; the dispute related to the assessment of whole person impairment (WPI) of cervical spine, lumbar spine, left shoulder, right knee and left hand; MA Home certified 5% WPI cervical spine; 0% WPI lumbar spine and 5% WPI left shoulder; total WPI 10%; abnormal posture and muscle spasm of left trapezius consistent throughout 90 minute examination; elements of chronic pain syndrome; soft tissue injury to cervical spine and lumbar spine caused by accident; soft tissue injury to left shoulder with subacromial bursitis and supraspinatus tendinosis to each shoulder; soft tissue injury to right knee; injury to left hand not caused by accident; 5% WPI cervical spine; 5% WPI lumbar spine; 13% WPI left shoulder; Held – certificate of MA Home revoked; injuries caused by accident give rise to 21% WPI.
DETERMINATIONS MADE:	WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate of Medical Assessor Alan Home dated 26 June 2023 and issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a whole person impairment (WPI) which, in total, is greater than 10% and which is 21%: · cervical spine – soft tissue injury; · lumbar spine – soft tissue injury; · left shoulder – soft tissue injury with subacromial bursitis and supraspinatus tendinosis, and · right knee – soft tissue injury. 2. The Panel finds the following injury was not caused by the accident: · injury to the left hand. ASSESSMENT OF TREATMENT AND CARE Certificate issued under s 7.23(1) of the MotorAccident Injuries Act 2017 3. The Review Panel affirms the certificate of Medical Assessor Home dated 26 June 2023.

REVIEW PANEL REASONS FOR DECISION

INTRODUCTION

On 20 November 2020 Mr Dejan Simkovic (the claimant) was involved in a motor vehicle accident when a Nissan Navara with bull bars hit the front right hand side of his car.
Mr Simkovic says he sustained trauma to the right side of his face and head. He also asserts he sustained injury to his lumbar spine, cervical spine, shoulders, right knee and left hand.
Mr Simkovic was 44 years of age at the date of accident and is now 48 years of age. He is a lecturer in philosophy at the University of Notre Dame and lives with his wife and two children.
Mr Simkovic has brought a claim for common law damages under the Motor Accident Injuries Act 2017 (the MAI Act).
Insurance Australia Limited trading as NRMA Insurance (the insurer) is the relevant insurer with liability to pay any damages to Mr Simkovic under the MAI Act.
Section 4.11 of the MAI Act provides that there is no entitlement to damages for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%.
This dispute is in relation to whether the degree of permanent impairment sustained by Mr Simkovic as a result of the injury caused by the accident is greater than 10%. This constitutes a medical assessment matter pursuant to Schedule 2, cl 2 of the MAI Act.
There was also a dispute between the parties as to treatment which also constitutes a medical assessment matter pursuant to Schedule 2, cl 2 of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[1]
[1] Section 7.20 of the MAI Act.
Disputes as to permanent impairment and treatment were referred to Medical Assessor Home who issued a certificate dated 26 June 2023.

DOCUMENTS BEFORE THE REVIEW PANEL

The Review Panel (Panel) issued a Direction to the parties requiring each party to file an indexed, paginated bundle of documents. In response to this Direction the solicitor for the claimant uploaded to the portal a bundle of documents titled Claimant’s documents paginated from pages 1 to 445.
The solicitor for the insurer uploaded to the portal a bundle of documents marked Insurer’s documents and paginated from pages 1 to 305.
On 14 December 2023 the Panel notified the parties of the re-examination to take place on 19 February 2024. The Panel also directed the claimant to upload to the portal the clinical notes of Myhealth Medical Centre, Bondi Junction pertaining to the claimant and photographs of the claimant’s car following the accident. The insurer was directed to upload photographs of the insured vehicle following the accident.
On 31 January 2024 the insurer uploaded three photographs of both vehicles involved in the accident.
On 13 February 2024 the claimant uploaded to the portal the clinical records of Myhealth Bondi Junction (Myhealth records).
The Panel notes that there are extensive medical records describing the claimant’s psychological and physical injuries including injury to his lumbar spine, cervical spine, left shoulder, right knee, left eye and post concussive syndrome. The Panel has not referenced all records relating to the physical injuries unless they are relevant or have some bearing on the claim before this Panel.

REVIEW PROCEDURE

On 28 August 2023 the insurer sought a review of the medical assessment of Medical Assessor Home.
On 20 September 2023 the delegate of the President was satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect and referred the medical assessment to the Review Panel (the Panel).[2]
[2] Section 7.26 of the MAI Act, AD1 p 15.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the Personal Injury Commission Act 2020 (PIC Act). A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[3]
[3] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.
On 13 December 2023 the Panel agreed an examination was necessary.

RELEVANT LEGAL AUTHORITY

Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.[4]
[4] Clause 1.2 of the Guidelines.
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
“6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
Clause 6.138 of the Guidelines define radiculopathy as the impairment caused by dysfunction of a spinal nerve root or nerve roots. To conclude that a radiculopathy is present, two or more of the following signs should be found:
(a)     loss or asymmetry of reflexes;
(b)     positive sciatic nerve root tension signs;
(c)     muscle atrophy and/or decreased limb circumference;
(d)     muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(e)     reproducible sensory loss that is anatomically localised to an appropriate     spinal nerve root distribution.

Treatment

Section 3.24 of the MAI Act refers to an injured person’s entitlement to statutory benefits for treatment and care as follows:
“(1)    An injured person is entitled to statutory benefits for the following expenses (treatment and care expenses) incurred in connection with providing treatment and care for the injured person-
(a)     The reasonable cost of treatment and care,
(b)     Reasonable and necessary travel and accommodation expenses incurred by the injured person in order to obtain treatment and care for which his statutory benefits are payable,
(c)     If the injured person is under the age of 18 years or otherwise requires assistance to travel for treatment and care, reasonable and necessary travel and accommodation expenses incurred by a parent or other carer of the injured person in order to accompany the injured person while treatment and care for which statutory benefits are payable is being provided.
(2)     No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.”
Clause 4.79 of the Guidelines provides that:
“People respond differently after a motor accident injury. The insurer must manage claims in a manner that is tailored to the claimant’s individual circumstances and needs, providing support based on best practice and a commitment to early and appropriate treatment and care.”
Clause 4.80 of the Guidelines sets out the principles of the nationally endorsed Clinical Framework for the Delivery of Health Services that the insurer must adhere to in approving treatment and care:
(a)     measure and demonstrate the effectiveness of the treatment;
(b)     adopt a biopsychological approach consider the whole person and their individual circumstances;
(c)     empower the injured person to manage their recovery;
(d)     implement goals focused on optimising function, participation and return to work or other activities, and
(e)     base treatment on the best available research evidence.

CERTIFICATE OF MEDICAL ASSESSOR HOME

The following injuries were referred to Medical Assessor Home for an assessment of permanent impairment:
·     lumbar spine – injury to lumbar spine including L5/S1 disc protrusion;
·     left shoulder – injury to left shoulder including tear of the labrum and rotator cuff injury;
·     cervical spine – injury to cervical spine including lateral flexion injury to upper cervical spine and C3/4 and C4/5 neural foraminal narrowing;
·     injury to right knee, and
·     injury to left hand. [5]
[5] Claimant’s documents p 16
The following treatment dispute were also referred to Medical Assessor Home:
· whether the request for prescription medicine ADDOS XR 30mg 30 TABS is causally related to the injuries sustained in the subject motor vehicle accident; and
·whether the request for prescription medicine ADDOS XR 30mg 30 TABS is reasonable and necessary in the circumstances.
Medical Assessor Home reported following the accident Mr Simkovic developed headache, nausea, and mild visual disturbance. He also had early onset of neck pain. He underwent assessment and treatment for tinnitus and imbalance. His general practitioner (GP) referred him for physiotherapy directed to the neck, back right knee and left shoulder.
M Simkovic was referred to Dr Matthew Giblin in respect of his left shoulder and underwent shoulder injections which provided transient benefit. He also consulted Dr Arbaszko, spinal surgeon and a neurologist to address cognitive and neurological symptoms. He has also received psychological treatment.
Mr Simkovic reported the use of anti-hypertensive medications to manage hypertension that was diagnosed after the accident.
On examination Medical Assessor Home noted normal spinal curvature without muscle spasm. Flexion was performed to half normal range, extension five sixths of normal range, right and left rotation to two thirds of normal range, right lateral flexion to half normal range and left lateral flexion to one quarter normal range. He noted spinal dysmetria. Neurological examination was normal, there was no muscle wasting and deep tendon reflexes were brisk but symmetrical.
He noted a full range of active motion in all planes of the right shoulder. He reported a restricted range of active motion measured by Goniometer in the left shoulder as follows:

Shoulder Movements

Active ROM Measured

Left

Flexion

110°

Extension

50°

Abduction

100°

Adduction

40°

Internal rotation

90°

External rotation

90°

Medical Assessor Home reported the circumference of the right and left arms were symmetrical at 30cm measured 10cm above the lateral epicondyles.
Medical Assessor Home reported normal spinal curvature of the thoracolumbar and lumbosacral spine. There was no muscle spasm. He reported flexion, extension and right lateral flexion were all one fifth of normal range, thoracic rotation was one half normal range on each side. He found no muscle guarding.
Straight leg raising was performed to 50º bilaterally. He found normal power in the lower extremities. The right lower limb sensation was reduced globally from the hip to the toes in a non-dermatomal pattern. Deep tendon reflexes were symmetrically preserved.
Circumference of the right thigh was 50.5cm and the left 50cm whilst circumference of the right calf was 40.5cm and the left 40cm.
Medical Assessor Home reported active motion of the right knee measured 0º extension to 135º flexion. He found no joint effusion and no joint crepitus. He reported the ligaments were stable in AP and lateral planes. In respect of the left knee, he reported active motion measured 0º extension to 140º flexion. He found no joint effusion and no joint crepitus. He reported the ligaments were stable in AP and lateral planes. He noted a normal gait.
Medical Assessor Home reported Mr Simkovic was consistent in his clinical presentation.
Medical Assessor Home was satisfied the claimant sustained the following injuries caused by the accident:
·cervical spine – soft tissue injury;
·lumbar spine – soft tissue injury;
·left shoulder – soft tissue injury with minor labral tear, and
·right knee – strain injury.
He concluded injury to the left hand was not caused by the accident.
Medical Assessor Home assessed a 5% whole person impairment (WPI) on the basis the claimant met the DRE cervico-thoracic category 2 impairment rating. He assessed a 0% WPI for the lumbar spine on the basis the claimant’s presentation was consistent with a DRE Lumbosacral category 1 impairment rating. In respect of the right knee, he assessed a 0% WPI. He assessed a 9% upper extremity impairment (UEI) which converts to a 5% WPI for injury to the left shoulder.
Medical Assessor Home certified a total impairment of 10% WPI arising out of injury caused by the accident.
Medical Assessor Home was not satisfied the prescription of anti-hypertensive medication was causally related to the injury sustained in the accident on the basis there is no explanation as to the relationship between the injuries sustained in the accident and the development of hypertension. He concluded the request for prescription medicine ADDOS XR 30 mg 30 TABS was not reasonable and necessary in the circumstances as it was not causally related to the injuries sustained in the accident.

OTHER MEDICAL ASSESSMENT CERTIFICATES

Certificate of Medical Assessor Howison

There was also a dispute as to permanent impairment in relation to hearing loss, tinnitus and vertigo which was referred to Medical Assessor Howison. He issued a certificate dated
29 June 2023 in which he stated:
·hearing loss – there is no hearing loss;
·tinnitus – the tinnitus was as a result of the whiplash injury, and
·vertigo – as a result of the post concussive syndrome.
Medical Assessor Howison certified a 0% WPI.
This certificate of Medical Assessor Howison is also subject to review by a review panel.

Certificate of Medical Assessor Sidorov

There was also a dispute as to permanent impairment in relation of psychological injury which was referred to Medical Assessor Sidarov. He issued a certificate in which he certified the following injuries caused by the accident gave rise to a permanent impairment of 14%.
This certificate of Medical Assessor Sidarov is also subject to review by a review panel.

EVIDENCE CONSIDERED BY THE PANEL

Photographs of the vehicles

Photographs of the vehicles involved in the accident show damage to the side of the Nissan Navara, the insured vehicle and damage to the entire front of the claimant’s Mitsubishi vehicle including the bonnet, the driver’s side headlight and the bumper bar.

Pre-accident medical evidence

Maroubra Medical Centre

On 21 June 2016 Dr Milena Trajilovic, GP reported Mr Simkovic had fallen from a scooter and injured his right elbow and right wrist.[6] On 24 June 2016 It was noted a CT scan had shown an undisplaced fracture of the radial head and haemarthrosis.
[6] Insurer’s documents p 110.
On 25 May 2017 Dr Trajilovic reported pain in the low back radiating to the right buttock and pain in the right hip. He also reported numbness in the right toe.
On 9 June 2017 Dr Trajilovic reported a CT scan of the lumbar spine showed an L5/S1 disc protrusion with L5 nerve impingement.[7] Mr Simkovic reported ongoing low back pain on
[7] Insurer’s documents p 113.
23 June 2017.
On 16 March 2018 Dr Trajilovic reported a Doppler confirmed Mr Simkovic had a DVT (deep vein thrombosis) after travelling from the USA.[8]
[8] Insurer’s documents p 114.
On 21 August 2018 Dr Trajilovic reported whilst on holiday in Serbia Mr Simkovic had a bad viral infection which caused heart arrhythmia. He was referred to a cardiologist.
On 27 May 2019 Dr Trajilovic reported Mr Simkovic had a history of low back pain and lengthy periods of sitting aggravates his pain.
On 9 August 2019 Dr Bletsas reported Mr Simkovic had a fall snowboarding two weeks earlier resulting in a 9^th rib fracture.[9]

Post accident medical evidence

[9] Insurer’s documents p 120.

New South Wales Ambulance report

The report stated:
“…OA pt 44 YOM alert, orientated and well perfused seated on ledge of sidewalk. …pt states was stationary at traffic light and once light turned green started to proceed forward and saw car on his right travelling approx. 70 kph along the cross street travelling through the red light. …other car made impact to front of pts car and other car spun out. Moderate damage noted to front of pts car – nil damage noted to driver side of car – nil airbag deployment and seatbelts worn. Pt self extricated. Pt states head strike onto side of car just about window – denies any LOC and can recall entire incident. Pt currently CO pn to R frontal lobe of head, behind the R eye and an intermittent occipital headache. Pt denies any visual disturbances, denies nausea, denies any altered sensations. …GCS 15 throughout. …secondary assessment showed small haematoma to R frontal lobe – nil other abnormalities of obvious injuries noted…”[10]
[10] Claimant’s documents p 68.

Royal Prince Alfred Hospital (RPAH)

Mr Simkovic presented to the hospital following the accident on 20 November 2020.[11] He had a headache and some neck soreness. In the upper limbs tone was normal, power globally 5/5 and coordination intact. In the lower limbs tone was normal, power globally 5/5 and coordination intact. There was no tenderness of the thoracic or lumbar spine, no paraspinal tenderness. No tenderness elsewhere and no bruising noted. The chest was clear, the abdomen soft, non-tender with no bruising.
[11] Insurer’s documents p 57.
A CT of the brain and cervical spine showed no fracture or intracranial haemorrhage. It was reported “there was no other injury sustained on clinical examination”.
The admission summary reported the claimant’s re-presented following his earlier discharge.[12] He returned due to an odd sensation of fullness around his right eye which then moved to his left eye. On examination he was not found to have any evidence of peri-orbital injury.
[12] Claimant’s documents p 74.

Myhealth Bondi Junction clinical notes

On 20 November 2020 Mr Simkovic had a telephone consultation with Dr Trajilovic where he reported his involvement in the accident that morning. Dr Trajilovic recorded:
“… He had whiplash and he also hit the head on the side of the car.
He hurt low back too.
He was taken to ED local hospital.
Had CT head. NAD.
He is concerned about pain in L eye like pressure also headaches, neck pain and low back pain.
He will rest and take Panadol …”[13]
[13] Myhealth records p 10.
On 24 November 2020 Dr Trajilovic recorded:
“Has had more headaches and L eye pain since accident. Also has been having L eye floaters and vision has changed. Unable to read and to do work on the computer….
He also developed bad /Tinnitus on the left side.
Had confusion on Friday afternoon and some on Saturday.
Pain in the neck is new, pain in low back with bruise on the right loin. …
Restricte neck and L-S spine movements by pain…. [sic].”[14]
[14] Myhealth records p 10.
Dr Trajilovic issued a certificate of capacity/certificate of fitness dated 27 November 2020 in which she diagnosed whiplash, concussion, left eye injury – possible vitreous detachment, L5/S1 disc protrusion and left shoulder injury. She recommended pain medication, physiotherapy and cortisone injections and noted referral to Dr Chang, ophthalmologist.
Dr Trajilovic certified the claimant unfit for work until 11 December 2020.
On 4 December 2020 Dr Trajilovic reported the MRI of the brain showed no abnormality. She noted Mr Simkovic was not well, he had tinnitus on the left side and left eye pain. He could not concentrate or focus. Dr Trajilovic referred Mr Simkovic to Mr Colovic, physiotherapist in respect of a whiplash injury and low back injury.
On 11 December 2020 Dr Trajilovic reported headaches, eye disturbances, neck and low back pain and left shoulder pain. On 29 January 2021 Dr Trajilovic reported Mr Simkovic was having more left shoulder pain since the accident. On examination she noted it was not swollen, not tender, there was no deformity although movement was restricted.[15]
[15] Myhealth records p 14.
On 23 March 2021 Dr Trajilovic reported Mr Simkovic had worse low back pain radiating to the left leg, occasionally to the right with pins and needles in the shins, calves and toes. She also reported right knee pain behind the patella and at the back which was worse when walking but also present when sitting.[16]
[16] Myhealth records p 15.
On 11 May 2021 Dr Trajilovic reported Mr Simkovic had been having pain in the left elbow on the attachment of the triceps tendon. He reported he had experienced pain in the upper arm since the accident which had recently spread to the elbow.[17]
[17] Myhealth records p 18.
Further consultations document various complaints including pain in the neck, left shoulder spine and right leg.

Dr Elisheva Vissel, neurologist

Mr Simkovic was treated by Dr Vissel for post-concussive syndrome.[18] On 12 January 2021 she reported following the accident Mr Simkovic noticed some bruising and bleeding to the right side of his head. He initially developed a right-sided headache which then transformed to a left-sided headache which persisted for about 10 days. He also reported some persistent photosensitivity, left shoulder and right knee pain. Dr Vissel also reported he had been hearing a ringing high-pitched noise in his left ear and also described dyscognitive symptoms including difficulty concentrating and focussing on his work. Dr Vissel thought the symptoms were as a result of post-concussive syndrome including impaired concentration and memory, mood irritability, headache and tinnitus.
[18] Insurer’s documents p 190.
On 20 August 2021 Dr Vissel reported the claimant’s headaches were more manageable. He continues to get some tingling and numbness in fingers and toes and often along the medial aspect of the hands and the lateral border aspect of the feet and legs.[19] He reported ongoing vestibular symptoms with disequilibrium and a sensation of popping and clogged ears.
[19] Insurer’s documents p 197.
On 15 March 2022 Dr Vissel diagnosed post-concussion syndrome, depression, anxiety, chronic headache, chronic fatigue, left shoulder injury, lower back pain, tinnitus and post-traumatic stress disorder.[20]
[20] Insurer’s documents p 201.

Dr Matthew Giblin, orthopaedic surgeon

On 6 September 2021 Dr Giblin reported persistent pain in the left trapezius which he assumed was coming from the cervical spine after a corticosteroid injection of the left shoulder.[21]
[21] Claimant’s documents p 384
Dr Giblin reviewed the claimant on 29 June 2022.[22] He reported the claimant’s right shoulder had dropped compared to his left or the left was elevated compared to the right. Dr Giblin was unable to explain the reason for this. He had restriction of movement of the left shoulder and was starting to get pain in the right shoulder. He reported a full range of movement of the right shoulder with pain in the deltoid area. He reported the MRI of the left shoulder showed a tear of the labrum in the posterior inferior corner with intact tendon.
[22] Insurer’s documents p 251.
On 9 August 2023 Dr Giblin reported the claimant’s neck pain was managed well under the care of Dr Abraszko.[23] He reported a lot of pain in the right knee with stairs, squatting and kneeling. Dr Giblin recommended an intra-articular injection of steroid to his knee.
[23] Claimant’s documents p 425.

Dr Renate Abraszko, spinal surgeon

Mr Simkovic saw Dr Abraszko on 28 May 2021.[24] She reported following the accident he sustained multiple injuries, concussion, whole spine injury, left shoulder, knees and ankle injuries. She reported he was complaining of neck and lower back pain. It was agreed he should continue with hydrotherapy.
[24] Insurer’s documents p 229.
On 15 October 2021 Dr Renata Abraszko referred the claimant for bilateral L5/S1 facet joint injections and on 17 December 2021 she referred the claimant for an upright multipositional MRI of the lumbar spine.[25]
[25] Insurer’s documents 233 and 234.
On 10 June 2022 Dr Abraszko referred the claimant to Dr Matthew Giblin in respect of the left shoulder noting trapezius muscle spasms and difficulties with abduction and flexion of the shoulder.[26]
[26] Claimant’s documents p 407.
On 14 October 2022 Dr Abraszko reported the claimant presented with multiple problems including neck pain radiating down to his left shoulder.[27] She recommended a C3/4 diagnostic injection. Dr Abraszko also reported a complaint of numbness in the 4th and 5th fingers and noting a positive Tinel’s sign on the elbow she recommended repeat nerve conduction studies. She also reported Mr Simkovic complained his right leg was giving way on him which she stated could not be explained given the normal MRI of the cervical and lumbar spine. He had brisk reflexes on the right side and power was normal. Dr Abraszko recommended an MRI of the brain and of the thoracic spine.
[27] Claimant’s documents p 407.
On 9 December 2022 Dr Abraszko referred Mr Simkovic to Dr Chow Chow pain specialist and to hydrotherapy.[28] She reported he had severe back and neck pain and whilst the MRI of the cervical spine showed multilevel foraminal narrowing there was no spinal compression.
[28] Claimant’s documents p 412.

Dr Kok-Eng Khor, consultant in pain medicine

Mr Simkovic saw Dr Khor on 24 November 2021. Dr Khor noted Dr Abraszko had arranged a bilateral L4/5 facet joint injection and a left cervical facet joint injection. Dr Khor reported complaints of bilateral leg pain. He also noted Dr Giblin had treated the claimant for his severe left shoulder pain. Dr Khor noted Mr Simkovic also complained of migraine centred over the right eye he was consulting with a neurologist and an ENT surgeon for his tinnitus. He was reporting sluggishness, severe pain and anxiety. Other than suggesting he continue with a daily routine of exercise Dr Khor did not propose any changes.[29]
[29] Claimant’s documents p 386.
On 4 March 2022 Dr Khor reported Mr Simkovic complained of fairly widespread pain over his head region, shoulder, neck and lower back as well as tinnitus. Dr Khor suggested the widespread nature of his pain may be related to central sensitisation process which could perpetuate his chronic pain syndrome. Dr Khor recommended a pain management program although he suggested he exhaust all medical avenues first.[30]
[30] Claimant’s documents p 394.

Associate Professor Andrew Chang

On 24 November 2020 A/Prof Chang reported Mr Simkovic presented with headaches and floaters in his vision. Visual acuity, visual fields and ocular movements were normal.
[31] Claimant’s documents p 80
A/Prof Chang considered the symptoms were related to the concussive effects.[31]
On 23 June 2021 A/Prof Chang reported when he saw Mr Simkovic on 27 April 2021, he reported floaters and occasional blurred vision. Vitrectomy surgery to clear the vitreous floaters was discussed.

Dr Phillip Chang, ear, nose and throat surgeon

Dr Chang saw Mr Simkovic on 2 February 2021. He reported since the accident
Mr Simkovic had suffered from incapacitating tinnitus of the left ear with a mild degree of tinnitus in the right ear. He noted both the MRI and the audiogram were normal. He recommended treatment with Dr Celene McNeill, audiologist.

Healthy Hearing and Balance Care

On 17 February 2021 the claimant consulted Dr Celene McNeill in respect of persistent left-sided persistent tinnitus since the accident.[32] She reported the audiogram showed hearing was essentially normal except for a mild hearing loss. She also noted a significant level of tinnitus disturbance.
[32] Claimant’s documents p 328.
On 1 July 2021 Ms Barbara Mok audiologist undertook auditory testing.[33] She concluded the results showed a sensorineural deterioration in the high frequencies compared to earlier tests performed in February 2021.
[33] Claimant’s documents p 243.
On 17 May 2022 Dr McNeill reported Mr Simkovic continued to experience chronic pain, eye floaters, nose bleeding, light headedness and disequilibrium. She noted he had been under a lot of stress which is known to aggravate tinnitus perception.[34]
[34] Insurer’s documents p 48.
On 24 August 2023 Dr McNeill and Dr Phillip Chang reported Mr Simkovic had been wearing bilateral hearing aids with a white noise tinnitus program which helped to improve his overall hearing and reduced his tinnitus perception.[35] A deterioration in the hearing levels in both ears was reported compared to 12 months earlier.
[35] Claimant’s documents p 404.

Dr Jeanette Stewart, neuropsychologist

In a report dated 10 April 2021 Dr Stewart reported the claimant’s neuropsychological performance was within expectations but she concluded he presented with a marked post-concussive syndrome.[36] She recommended psychologically therapy to assist with anxiety and panic attacks and some depression.
[36] Insurer’s documents p 30.

Dr Roy Sugarman, clinical psychologist

On 17 May 2021 Dr Sugarman reported testing confirmed post-traumatic stress disorder symptoms which probably accompanied mild traumatic brain injury symptoms immediately post-accident.[37]
[37] Claimant’s documents p 191.

Associate Professor Michael Barakate, ear, nose and throat surgeon

Mr Simkovic saw A/Prof Barakate for management of epistaxis and nasal irritation.[38] He diagnosed nasal vestibulitis.
[38] Insurer’s documents p 119.

Precision hearing

Mr Simkovic underwent a vestibular assessment with Edith Segal, clinical audiologist on
17 August 2023. She reported Mr Simkovic noticed he veered to the left whilst walking and experiences vertigo upon positional movements. He also report the onset of migraines and constant left sided tinnitus. The vestibular testing did not disclose any significant abnormality.

Vladimir Colovic, physiotherapist

In an Allied health recovery request (AHRR) dated 10 December 2020 Mr Colovic reported he was treating the claimant for post-concussion syndrome, headaches, neck, left shoulder, right knee and back injuries.[39]
[39] Claimant’s documents p 391.
He reported restricted range of motion of the cervical spine and reported tenderness on palpation over the entire neck. He also reported sharp pain over the anterior aspect of the glenohumeral joint radiating into the biceps. Shoulder pain was noted on driving and using the computer. He reported lower back pain aggravated by sitting, standing and walking. He reported restriction of range of motion. He also reported pain in the left hip and left groin and deep anterior-lateral right knee pain and right posterior thigh pain.
The claimant has continued to undergo treatment with Mr Colovic with an AHRR dated
20 March 2023 noting the claimant had undergone 58 sessions to date.

Imaging

CT Lumbar spine dated 26 May 2017 – the report reads:
“Clinical notes – lower back pain radiating into the right buttock and right hip.
There is straightening of the lumbar lordosis. Otherwise, alignment of the lumbar spine is anatomical. The vertebral bodies are normal in height and shape. There is slight reduction of disc height at L5/S1, otherwise the lumbar discs appears normal in height.
At L1/L2 there is no evidence of significant disc bulge, foraminal narrowing or canal stenosis.
At L2/L3 there is no evidence of significant disc bulge, foraminal narrowing or canal stenosis.
At L3/L4 there is a minimal circumferential disc bulge. There is no canal stenosis or foraminal narrowing.
At L4/L5 there is a mild to moderate circumferential disc bulge. There is no canal stenosis. There is no substantial narrowing of the exit foraminae.
At L5/S1 there is a moderate circumferential disc bulge which extends into both neural exit foraminae. There is no canal stenosis. There is marked right foraminal narrowing due to the disc, with probably impingement of the exiting right L5 nerve root with loss of the normal peri-neural fat cuff. On the left side, there is also moderate exit foraminal narrowing with partial effacement of the peri-neural fat cuff.
The visualised paravertebral soft tissues have a normal appearance.”[40]
[40] Insurer’s documents p 134.
CT brain and cervical spine dated 20 November 2020 (RPAH) – the report concluded:
“No acute intracranial pathology identified.
No cervical spine fracture evident.”[41]
[41] Insurer’s documents p 75.
CT cervical and lumbar spine dated 24 November 2020 – Dr Lam interpreted the results as follows:
“Cervical spine alignment is normal with no evidence of acute bony injury, spinal canal stenosis or neural exit foraminal narrowing.
No significant degenerative changes or disc disease of the cervical spine.
Lumber spine alignment is normal with no evidence of acute bony injury.
Mild lower lumbar disc disease without evidence of spinal canal stenosis. Mild to moderate right and moderate left L5/S1 neural exit foraminal narrowing with possible contact/impingement of the exiting L5 nerve roots, more prominent on the left.”[42]
[42] Claimant’s documents p 78.
MRI of the brain dated 3 December 2020 – it was reported to be a normal study.[43]
[43] Claimant’s documents p 87.
A non-contrast CT of the brain dated 12 January 2021 - recorded a history of post-concussion syndrome, headaches, worse in the last few days and epistaxis. No abnormality was demonstrated.[44]
[44] Claimant’s documents p 106.
MRI left shoulder dated 11 February 2021 – the report concluded:
“●      Posteroinferior labral tear.
·        Non-specific synovitis in the anterior glenohumeral joint.
·        No rotator cuff tendinopathy or tear.”[45]
[45] Claimant’s documents p 139.
Ultrasound left shoulder dated 11 March 2021 – the report states:
“Subacromial bursitis is demonstrated”.[46]
[46] Claimant’s documents p 140.
Ultrasound guided steroid injection to the left shoulder was performed 12 March 2021.[47]
[47] Claimant’s documents p 141.
MRI right knee dated 22 April 2021 – the report concludes:
“No acute meniscus tear.
The cruciate ligaments are intact.
No full thickness defect on the articular surfaces.”[48]
[48] Claimant’s documents p 174.
MRI thoracic and lumbar spine dated 22 April 2021 – the findings were as follows:
“At L1/2 mild facet arthropathy but no significant central canal or foraminal stenosis.
At L2/3, there is mild facet arthropathy but no significant central canal or foraminal stenosis.
At L3/4 there is mild facet arthropathy and slight generalised disc bulging but no significant central canal, subarticular or foraminal stenosis.
At L4/5, there are bilateral lateral annulus fissures with focal foraminal disc bulging causing mild bilateral foraminal stenosis. There is no significant central canal or subarticular narrowing.
At L5/S1 there are bilateral lateral annular fissures and broad-based posterior disc bulging with moderate bilateral foraminal stenosis. There is very mild left subarticular narrowing but no significant central canal or right subarticular stenosis.
Comment:
Correlation between imaging and the patient’s pre scanning pain diagram indicated likely bilateral L5 radiculopathy due to bilateral foraminal stenosis at L5/S1.”[49]
[49] Claimant’s documents p 175.
Ultrasound left forearm and elbow – the findings were reported as follows:
“Sonographic examination was performed of the left elbow. There is no elbow joint effusion. The common flexor tendon and common extensor tendons are intact with no evidence of tendinopathy or tear. The biceps brachii and triceps tendons are intact. The ulnar nerve is normal. There is no olecranon bursitis.”[50]
[50] Myhealth records p 48.
MRI cervical spine dated 5 July 2021 – the report notes the following impression:
“Mild left C3/4 and C4/5 neural foraminal narrowing. No disc herniation or spinal canal narrowing.”[51]
[51] Claimant’s documents p 213.
Whole body bone scan with SPECT CT imaging dated 3 August 2021 – the report concludes:
“In the SPECT CT in the cervical spine there are diffuse mild changes of discovertebral/uncovertebral arthritis. There is also diffuse very mild facet joint arthritis, marginally more severe in the left C5/C6 facet joint. There are diffuse very mild arthritic changes in both shoulders and sternoclavicular articulations.
In the thoracic spine there ae very mild diffuse changes of discovertebral arthritis and mild bilateral multilevel costovertebral junction arthritis.
There is mild to moderate discovertebral arthritic changes at L5/S1 with minimal changes of discovertebral arthritis elsewhere in the lumbosacral spine. There is also mild right L4/L5 facet joint arthritis. Mild arthritic changes are also seen in both sacroiliac joints, more prominent on the right.
Elsewhere there are very mild arthritic changes in the left knee.”[52]
[52] Claimant’s documents p 246.
Ultrasound guided injection dated 2 September 2021 - to the left subacromial subdeltoid bursa.[53]
[53] Claimant’s documents p 308.
Nerve conduction studies dated 1 October 2021 – the study was reported to be normal.[54]
[54] Insurer’s documents p 262.
Multipositional MRI lumbo-sacral spine dated 30 May 2022 – the findings were:
“At L5/S1 the disc is desiccated and there is a 2mm retrolisthesis. There are mild foraminal stenoses.
At L4/5 there is a 1mm anterolisthesis secondary to early facet joint OA. The disc is desiccating. There is no loss of height. There are mild foraminal stenoses.
At the remaining levels minimal disc desiccation is seen.
The distal cord/cauda equina define normally.
Functional Imaging: At L4/5, with extension the anterolisthesis corrects and returns with flexion. The extension the stenosis are a little more pronounced.
At L5/S1, with flexion the retrolisthesis becomes a little more pronounced and foraminal stenosis are accentuated, particularly the left, and an annular fissure appears. There is near correction to normal alignment with extension.
No change at the remaining levels.
Conclusion:
Dynamic instabilities at L4/5 and L5/S1.”[55]
[55] Claimant’s documents p 402.

Ultrasound left shoulder or upper arm dated 21 June 2022 – the report concludes:
“Features of subacromial subdeltoid bursitis and impingement.
Rotator cuff tendinosis.”[56]
[56] Insurer’s documents p 277.
MRI left shoulder dated 18 July 2022 – the report concludes:
“1. Mild heterogeneity of the mid-supraspinatus tendon mauy reflect prior injury or tendinosis. Rotator cuff complex otherwise intact.
2. Mild current glenohumeral and AC joint synovitis.
3. Previously demonstrated (11/02/2021) posteroinferior glenoid labral base tear has healed in stable position.”[57]
[57] Insurer’s documents p 301.
MRI cervical spine dated 19 September 2022 – the report concludes:
”1. Multifactoria severe foraminal narrowing has the potential to compress the exiting left C4 nerve root.
2. Focal noncompressive posterocentral annular fissure at C4/C5.”[58]
[58] Insurer’s documents p 256.
CT guided injection was performed 24 October 2022 - into the left C4 peri-neural space[59].
[59] Claimant’s documents p 409.
MRI of the thoracic spine dated 27 October 2022 – the report concludes:
“Impressions
Non contrast scans demonstrate no abnormality of the cervical or thoracic cord.
There has been no significant change in the appearance of the cord since a previous MR in April 2021.”[60]
[60] Insurer’s documents p 259.
MRI of the brain dated 7 November 2022 – the report concluded it was a normal study.[61]
[61] Insurer’s documents p 253.
MRI left shoulder dated 5 September 2023 – the report concludes:
“Small 3mm intrasubstance partial tear of the posterior fibres of the supraspinatus tendon. Mild supraspinatus tendinosis.”[62]

Medico-legal evidence

[62] Claimant’s documents p 443.

Professor Paul Fagan, otolaryngologist

Professor Fagan assessed the claimant and provided a report dated 20 September 2021.[63] He reported Mr Simkovic developed severe bilateral tinnitus within a day or two of the accident. He had intermittent tinnitus in the left ear which can last for an hour and on occasion persist for 10 days. He reported Mr Simkovic had also developed what he thought was a minor variant of benign positional peripheral vertigo (BPPV). He also reported ocular migraine with blurring of vision, photophobia and spectra.
[63] Insurer’s documents p 219.
Professor Fagan noted whilst the neurological examination was normal, he thought
Mr Simkovic had suffered some damage to the balance function of the inner ear. He recommended he undergo testing of labyrinthine function.

Dr Ross Mellick, neurologist

Dr Mellick assessed Mr Simkovic on 25 October 2022 and provided a report dated
[64] Insurer’s documents p 14.
2 November 2022.[64] He recorded complaints of symptoms at multiple sits, the spine in the lower lumbar region, the neck, the head, both legs and the left shoulder.
Dr Mellick reported cervical movements were performed over a normal range without caution or muscle guarding. Lumbar movements were markedly restricted in all directions, approximately 50% reduction, unassociated with muscle guarding. He reported no abnormality of the normal rhythm of gait and normal ankle dorsiflexion and plantar flexion. He also reported no impairment of the claimant’s ability to assume the seated position or to rise from the seated position with no apparent impairment of power in the lower extremities distally or proximally.
Dr Mellick reported no abnormality of contour, posture, tone, coordination or the superficial or deep modalities of sensation in the upper and lower extremities. The deep tendon reflexes were symmetrical and normally brisk, and the plantar responses were flexor. The abdominal reflexes were also tested and found to be present in all four quadrants. Straight leg raising was accomplished to only 30º on the left side and 20º on the right. He reported there were no long tract or segmental signs and rombergism was absent.
Dr Mellick concluded there was no indication of a specific neurologically based disorder requiring treatment. He stated the pattern of symptoms is not explicable as a result of an organically determined disorder and considered psychiatric and psychological treatment to be appropriate.

Dr Andrew Keller, occupational physician

Dr Keller assessed Mr Simkovic on 15 February 2023.[65] Relevantly Dr Keller recorded:
“He reports that he experiences migraines and headaches up to twice per week. He suffers severe tinnitus that is worse on the left than the right. He states his ears feel blocked and he is unable to equalise them by performing the Valsalva manoeuvre. He gets regular nose bleeds but has been cleared by an ear, nose and throat specialist for any significant nasal pathology. He reports constant neck pain that he rates up to 8/10 in intensity. He states this radiates to the shoulders, particularly the left. He reports constant lower back pain that can radiate to the legs, but which leg varies from time to time. He rates the pain at 8/10 and sates it was aggravated by movement …”
[65] Insurer’s documents p 21.
Dr Keller found a restricted range of movement of the neck with flexion 20º, extension 0º, rotation to the right 45º, rotation to the left 10º, flexion to both sides 20º. He found no spasm and a greater range of movement in the neck when looking around the room.
Dr Keller recorded range of shoulder movement as follows:

Shoulder Movements

Active ROM Measured

RIGHT

Active ROM Measured

LEFT

Flexion

160°

45°

Extension

40°

10°

Adduction

40°

40°

Abduction

160°

0°

Internal rotation

90°

30°

External Rotation

90°

30°

Dr Keller reported a full symmetrical range of motion of both elbows, wrists and all finger joints. He reported reduced sensation to light touch from the left elbow down to all fingers in the left hand.
In the thoracic and lumbar spine, he demonstrated a severe restriction of motion with 10º movement in any axis. He reported movement in the back was much greater when
Mr Simkovic was sitting and standing and moving around the room. He found no spasm. He reported straight leg raising on the bench was 0º on the right and 20º on the left though he was able to sit with his legs at 90º during reflex testing. Dr Keller reported reflexes were present at the knees and ankles and appeared voluntarily exaggerated. He reported testing of power at the right ankle gave an intensity of 1/5 where he was unable to move the hand against resistance. On the left he gave 3/5 with minor movement. Dr Keller stated this was inconsistent with his ability to walk unassisted and to stand on his heels and toes without foot drop. He was able to squat to ¼ of normal. Sensation to light touch was as reduced as it was in the right thigh and left foot.
Dr Keller reported Mr Simkovic’s physical presentation was grossly inconsistent and unsupported by objective evidence of physical injuries.

Dr Blagoje Kuljic, psychiatrist

Dr Kuljic assessed the claimant on 11 April 2023.[66] He reported following the accident
[66] Claimant’s documents p 354.
Mr Simkovic experienced tinnitus and impaired hearing; headaches, significant floaters and retinchisis; left shoulder issues, neck radiculopathy, low back pain, high blood pressure, weight gain, alcohol abuse, speech and memory problems.
Dr Kuljic reported Mr Simkovic suffers nightmares and flashbacks of the accident. He avoids driving if possible and does not watch the news or movies. He is angry and argumentative, impacting family functioning. He is hypervigilant, his startle reaction is exaggerated, and he complained of a depressed mood. He has a loss of interest in pre-accident activities and less enjoyment in life. His appetite and weight is unstable, he experiences insomnia, and his energy levels are low.
Dr Kuljic diagnosed post-traumatic stress disorder. He assessed an 18% WPI.

Dr Pauline Langeluddecke, clinical psychologist

Dr Langeluddecke conducted a joint neuropsychological assessment of the Mr Simkovic and provided a report dated 6 November 2023.[67]
[67] Insurer’s documents p 286.
She administered cognitive testing and concluded there was “no credible medical explanation for cognitive impairment at the level demonstrated by Mr Simkovic on present testing or for cognitive decline between 2021 and the present assessment of the magnitude demonstrated on testing”.
Further Dr Langeluddecke concluded the cognitive tests results were invalid given psychometric evidence of inadequate effort on testing and compelling inconsistencies indicate of exaggeration/feigning of cognitive impairment. She stated the cognitive test results cannot be explained by the claimant’s cultural/language background given his presentation at interview, his education history and written statements which indicate a high level of proficiency in English. She also found the results greatly exceed the level of impairment which can reasonably be explained by relevant psychological conditions (mood and anxiety disorders) and/or pain.

SUBMISSIONS

insurer’s submissions

The insurer provided undated submissions in respect of the various permanent impairment disputes. The submissions are to be read with the Internal Review Decision of Ms Clare Rolfe dated 8 July 2022. [68]
[68] Insurer’s documents p 5.
Relevant the insurer highlights the following imaging reports:
(a)    the CT scan cervical and lumbar spine dated 24 November 2020 revealed normal cervical spine and some degenerative changes in L5-S1;
(b)    the MRI of the left shoulder dated 11 February 2021 revealed posterior labral tear, moderate non-specific synovitis, no rotator cuff pathology;
(c)    the ultrasound of the left shoulder dated 11 March 2021 revealed bursitis;
(d)    the MRI of the right knee dated 22 April 2021 revealed normal findings;
(e)    the MRI of the thoracic and lumbar spine dated 22 Aril 2021 revealed normal findings for the thoracic spine with some degenerative changes in the lumbar spine;
(f)    the MRI of the cervical spine dated 5 July 2021 revealed normal findings, and
(g)    the whole body bond scan dated 3 August 2021 revealed mild arthritic changes in the cervical and lumbar spine.
The insurer noted Dr Abraszko indicated the clinical evaluation for the lumbar spine was normal and she recommended hydrotherapy and physiotherapy.
Dr Giblin reported a reduced range of motion of the left shoulder, but the knees showed a normal range of motion. On 31 January 2022 Dr Giblin recommended continued conservative treatment.
Dr Khor found no neurological deficit in the neck and the lumbar spine was neurologically intact. The shoulder displayed good range of movements with some impingement bilaterally. His recommendations included ketamine infusion, pain management program with cognitive behavioural therapy and acceptance commitment therapy.
The insurer submits the claimant sustained soft tissue injuries to his cervical spine, lumbar spine, left shoulder and right knee. The insurer notes there was no identified injury to the left hand and any pain is referred from the cervical spine region.
In relation to WPI the insurer submits the claimant’s cervical spine findings result in a DRE category I or 0% WPI.
The insurer submits WPI of the lumbar spine would range between DRE category I and II, or 0 to 5% WPI.
Noting the preponderance of evidence supports a full range of movement in the left shoulder the insurer submits it would result in a 0% WPI.
The insurer submits there are no contemporaneous records supporting an injury to the left hand.
The insurer notes Dr Giblin found a full range of movement of the right knee. Noting there were no internal structural changes shown on imaging the insurer submits there is no assessable impairment of the right knee.
The insurer provided submissions dated 22 August 2023 in support of the application for review.[69]
[69] Insurers documents p 1.
The insurer notes Medical Assessor Home admitted into evidenced the report of Dr Gehr which was not admissible under s 7.52 of the MAI Act because Dr Gehr was not an authorised health practitioner at the time of his assessment.
The insurer submits Medical Assessor Home, in assessing 5% WPI arising out of dysmetria of the cervical spine, failed to put to the claimant the inconsistency between his assessment and the assessments of Dr Mellick and Dr Tomlinson who both found normal range of motion of the neck. The insurer also submits that Medical Assessor Home did not provide reasons for the cause of the claimant’s dysmetria in the absence of an obvious explanation for that restriction, such as muscle spasm, tenderness or pain and in circumstances where he had concluded that imaging of the cervical spine demonstrated no abnormality. The insurer also notes that in May 2021 Dr Abraszko noted no abnormalities on clinical examination.

Claimant’s submissions

The claimant provided undated submissions opposing the application for review asserting there was not reasonable cause to suspect that the medical assessment was incorrect in a material respect.[70]
[70] Claimant’s documents p 9.

MEDICAL EXAMINATION

Mr Simkovic attended the Commission rooms alone on 19 February 2024 where he was examined by Medical Assessor Couch. The clinical assessment took 90 minutes.
Mr Simkovic arrived approximately 15 minutes early for his appointment. He was noted to be standing in the waiting area, leaning against the wall – on questioning he said that he has learnt to spend most of his time alternating sitting, standing, and walking around because of back and knee pain.
Medical Assessor Couch started by going through the history detailed in Medical Assessor Home’s certificate of 26 June 2023 and confirming or elaborating on his history as appropriate.

Social and occupational history

Mr Simkovic is now 48 years of age.
Mr Simkovic said he grew up in Belgrade, the capital of Serbia. He had wanted to be a philosopher since high school. Although he was in Belgrade during the Bosnian war, he was not called up for military service. He studied philosophy at university in Belgrade and has been involved in academic philosophy ever since. He said his stepfather had been the Bosnian Ambassador to Australia in Canberra. He had first come to Australia in 2008 and “fell in love with the place.”
He commenced a PhD in philosophy at Notre Dame University in 2009 and first started doing tutoring there prior to completing his thesis. He said he had had a permanent position at Notre Dame University since 2012 and is now a senior lecturer. He said the combined department of philosophy and theology has approximately 40 staff. He is married with his wife also originally coming from Serbia. She works as an architect; they live in Newtown and they have two children aged 16 and 14 years.

Past medical history

Mr Simkovic confirmed a previous episode of low back pain in 2017 – this apparently was of spontaneous onset without a known injury. He had physiotherapy for about two weeks and described a full recovery. He also added that he had at some stage in the last few years sustained a minor rib injury in a fall while snowboarding. He said that the deep vein thrombosis which was mentioned by Medical Assessor Home was following prolonged air travel to and from an academic meeting in Princeton, USA.
He described himself as healthy without physical restrictions and “super active” prior to the accident. He explained the family had moved to Newtown, so he would be able to walk to the Notre Dame campus on Broadway. He said he typically walked at least 6km per day. He also cycled regularly, played some basketball with his children, enjoyed swimming and bushwalking, and did snowboarding in winter. He had also been involved in water polo.

History of the accident

Mr Simkovic gave a similar description of the accident on Friday 20 November 2020 to that detailed by Medical Assessor Home. He was driving his Mitsubishi Lancer on Shepherd Street in Chippendale with his wife as the front seat passenger. His car was crossing the intersection with Cleveland Street (a major road) on a green light. He explained he could either get to his destination by proceeding straight ahead or by turning right into Cleveland Street. As he moved forward, he looked to the right and suddenly saw a Nissan Navara twin-cab utility with bull-bars approaching from his right at speed. Apparently the other driver did not attempt to brake. Mr Simkovic braked immediately, and the utility struck the front driver’s side of the Mitsubishi, causing extensive damage. It was subsequently towed away and written-off.
Mr Simkovic said he had no actual memory of the period between seeing the approaching bull-bar and later looking to his left and seeing the utility which had spun around 180 degrees and was some distance along Cleveland Street to his left, facing back towards him. He was wearing a seatbelt. The front airbags of the Mitsubishi did not activate with the “T-bone” impact – he did not think his car had side/curtain airbags. Mr Simkovic said the police estimated the speed of the utility as greater than 70kmph and told him he was fortunate to have braked immediately, so that the utility did not impact his driver’s door.
He recalled that petrol or other liquid was leaking from his car and initially the fire brigade arrived, following by ambulance and police. He recalled that he had hit the right side of his head on the driver’s door window/surround but was able to alight from the car. Apparently a doctor who was walking by examined him briefly and advised him to go to hospital. His wife apparently also sustained a back injury and was in pain for about six months.

History following the accident

Medical Assessor Couch asked Mr Simkovic about his recollection of initial symptoms after the accident. He said he was first aware of pain in the right side of his head which he thought had struck either the driver’s door window or just above this. He recalled pain in the right side of his head and around his right eye, and a red area on his scalp, but thought there had not been any actual swelling, although the ambulance officers’ report does mention a small haematoma on the right side of the head.
He recalled developing neck pain the same day. When asked about his low back pain, he thought this had probably come on during the following weekend. He recalled friends visiting on the Sunday and having some pain. He could not recall exactly when he had first noticed pain in the left shoulder, but this was recorded approximately three weeks after the accident by Dr Trajilovic on 11 December 2020.
Following the accident, Mr Simkovic was taken by ambulance to the nearby Royal Prince Alfred Hospital (RPAH), where he was assessed and observed for several hours. According to the emergency department records, he was initially complaining of headache and neck pain. Mr Simkovic re-attended the emergency department a few hours later the same day, because of eye symptoms. He recalled “I was totally freaked out about my eyes”.
Mr Simkovic said (apart from medicolegal assessments) he had attended about 10 specialists for treatment of his injuries and symptoms since the accident. This included for severe tinnitus, partial hearing loss in the left eye and impaired balance. It was noted that
Mr Simkovic was wearing bilateral hearing aids at the examination. He had also been under the care of a psychiatrist, a psychologist and a neurologist (Dr Vissel).
For his neck and low back injuries, he had continued to attend Dr Renata Abraszko, neurosurgeon. For his cervical spine, he said that Dr Abraszko had mentioned either a disc replacement or foraminotomy to relieve nerve root compression. To date he had not had surgery but recalled five or six injections, apparently to the left C4 nerve root. Interestingly, when he went on to describe his current symptoms, he described complete or almost complete relief of neck/left shoulder symptoms for a few days after these injections, followed by gradually diminishing relief lasting for three or four months. He said he was also paying for traction to the neck every ten days or so from the physiotherapist. He said that Dr Abraszko had told him to avoid any manipulation of the cervical spine.

For the low back, Mr Simkovic said he himself had insisted on conservative treatment. He described two or three injections to the lumbar spine, and regular traction to the low back applied by the physiotherapist.
For the left shoulder he had attended Dr Peter Giblin, and possibly one other specialist. He recalled having three injections to the left shoulder in different locations. One (which sounded like a typical subacromial bursa injection), did give temporary relief. Mr Simkovic said that
Dr Giblin advised him that surgery could make him worse rather than better. He was due to start a course of platelet rich plasma (PRP) injections to the left shoulder.

History of any subsequent injuries or accidents

Mr Simkovic denied any such events.

Current symptoms

Mr Simkovic was asked which body area currently gave him the most trouble. He said this was his neck, followed by the left shoulder and back. He pointed out that his neck and left shoulder symptoms were related. He described these symptoms in further detail.

Neck

He described constant neck pain. He said the only time he gets relief is for the first few days after a left C4 nerve root injection. He described this period as “happy, bliss-like, a religious experience!” He then gets waning relief for three to four months. He said his most recent injection had been in November 2023 and it had now worn off.
Describing pain, Mr Simkovic pointed to the lower cervical region, sometimes radiating distally. He described pain as sharp and burning. Pain radiates to the left shoulder and down the extensor aspect of the left upper limb to the lateral three fingers, with some distal numbness. When he was describing these symptoms, Medical Assessor Couch noticed that his left hand was blotchy and duskier in appearance than the right. He denied any radiation to the right upper limb. These symptoms vary to some extent from day to day. They are reliably aggravated by activity and get worse during his mornings at work. He gets some relief from lying down in the afternoon with a “peanut pillow”.

Left shoulder

Mr Simkovic described pain in the left trapezius muscle and over the shoulder joint proper which he demonstrated by putting his right hand over the point of the shoulder. This pain is virtually constant, although he obtained some relief from the left C4 spinal injections. He reported the left shoulder pain is aggravated by use of the left upper limb demonstrated by active abduction of the left shoulder to about 70 degrees. He is unable to reach behind his back with his left hand demonstrated by reaching the thumb to the left buttock. At night he cannot lie on his left side and his sleep is disturbed. He mostly sleeps on his back. If he rolls over to the left in his sleep, shoulder pain wakes him.

Lower back

Mr Simkovic described pain across the lumbosacral area, pointing with his right hand. He said that earlier he had experienced some radiation to the right lower limb, but he now only gets this to the left lower limb. Pain radiates frequently to the left buttock and sometimes more distally down the thigh to the posterior calf. He also gets numbness in the lateral three toes of the left foot.

Right knee

Mr Simkovic also recalled noticing pain in the right knee immediately after the accident. He now gets intermittent pain, which occurs on most days at the back of the knee and “inside the knee”. It tends to be worse on weightbearing. On one occasion it had given way, causing him to sit down suddenly on the toilet seat. He is not aware of swelling or locking. He wears a soft neoprene brace for the knee.

Migraine/headache

Mr Simkovic said he had seen several specialists for this. They may occur from one to four times per week. Pain is mainly on the left side of the head and in the left eye and is accompanied by marked nausea and photophobia.

Return to activities since the accident

Mr Simkovic said he had been completely unfit for work at the university for four months. He himself had insisted on trying to go back to work at the beginning of the 2021 academic year. He wanted to work three days a week but found this was too much. He started on four mornings a week and had progressed to five mornings a week. He went on to explain that he is only able to work in the morning and now does five mornings per week.
He starts between 7 and 9am and finishes by 1pm. He said since returning to work, he had either been teaching one or two undergraduate classes per semester. This means either one or two face-to-face sessions per week. He explained that face-to-face teaching consists of a lecture lasting up to an hour and a half, followed by a similar length tutorial.
Whilst teaching he would typically sit for up to 15 or 20 minutes, then stand and walk around. He said on occasions when his neck, shoulder and back have all been very bad, he has had to go home early and make up the teaching time later. He described currently having relatively small classes and indicated that his students were quite accommodating of his restrictions.
In addition to the undergraduate teaching, he is involved in research and is also the Post-Graduate Coordinator for Philosophy for both the Sydney and Fremantle campuses.
At home he still needs help from his wife with some self-care activities – he cannot reach his lower legs or feet. He said that he is no longer able to help around the home and that his teenage children and wife do everything. He does some walking for exercise on the advice of his treating practitioners but can no longer walk to work although he dislikes having to drive. He has not been able to resume any of his pre-injury leisure activities. Sleep continues to be badly disturbed.

Present treatment

Mr Simkovic still sees Dr Abraszko for his neck and back symptoms and Dr Giblin for his left shoulder. As already noted he has traction from a physiotherapist for both his cervical and lumbosacral spine every seven to ten days, commenting: “that keeps me working”.
His principal analgesia is Palexia SR 100 mg twice daily (Tapentadol, a synthetic narcotic). He also takes Panadol Osteo, four to six tablets per day, and Valium 5 mg every two to three days for muscle spasm. He said at one stage he had taken the antineuropathic pain drug Gabapentin, but experienced excessive sedation. He also takes Maxalt (Rizatriptan) for migraine and medication for hypertension.

Physical examination

Mr Simkovic presented as a tired-looking middle-aged man who walked into the examination room slowly with an asymmetric gait. He appeared to be intelligent and well-educated. He spoke excellent although slightly accented English and gave a clear specific history in a straightforward and convincing manner. At times he was able to smile and share a joke appropriately, but he appeared to be quite uncomfortable and preferred to stand throughout the prolonged examination.
At height 178cm and weight 87kg, he had a BMI of 27, which is in the overweight range. However, he looked deconditioned, with relatively poor musculature and moderately excess central fat. He was balding with very short remaining greying hair and had a short greying beard (he commented that his beard had become quite grey since the accident). He was wearing shorts, slip-on sandals and a T-shirt. When asked, he removed his T-shirt for examination using his right hand only. He was fully cooperative and showed good effort, with no evidence of self-limitation or inconsistency.

Cervical spine

Throughout the 90-minute examination, Mr Simkovic demonstrated a very abnormal posture, with the left shoulder girdle elevated at least 5 cm higher than the right – further examination showed that this was principally due to severe and persistent spasm of the left trapezius muscle (photograph attached). He reported moderate tenderness localised to the left of the cervical spine at approximately C6 level.

[IMAGE UNABLE TO RENDER]

Active range of movement (AROM) of the cervical spine was observed carefully, with repetition. Flexion was minimal at a quarter of normal range and obviously very painful, whereas extension was almost full and more comfortable. Rotation was three-quarters normal to the right but less than half of normal to the left. Lateral flexion was half of normal to the right and one-third of normal to the left. On palpation the left trapezius muscle was markedly tender and in severe spasm, whereas the right trapezius was soft and non-tender. Medical Assessor Couch observed reproducible dysmetria and muscle spasm in the cervical spine.

Lumbosacral spine

There was a slight scoliosis convex to the right. On palpation, Mr Simkovic reported moderate tenderness over the lumbosacral spine in the midline and to the left of the midline. The left lumbar paraspinal muscles were tense to palpation compared with the right when he was lying prone. Medical Assessor Couch palpated the lumbar paraspinal muscles while
Mr Simkovic slowly moved his body weight from one foot to the other. As he did so the muscles on the weightbearing side relaxed, indicating no actual spasm.
AROM of the lumbosacral spine was measured with Mr Simkovic standing with knees straight. He could achieve only minimal flexion (less than a quarter), only reaching his fingertips to the mid-thighs. In contrast, lumbar extension was two-thirds of normal and described as easier. Lateral flexion was only one-third of normal to the left and painful, but almost full to the right and again described as easier. Medical Assessor Couch observed reproducible dysmetria and muscle spasm in the lumbosacral spine.

Upper extremities

The palms of both hands were soft and clean without any callouses, consistent with little recent physical use. Both hands were warm and sweaty and blotchy in appearance (as noted above, during the history-taking Medical Assessor Couch observed the left hand appeared to be duskier in colour than the right). Apart from colour, the left hand was normal to examination, with no deformity, full range of movement, and normal power of grip strength and intrinsic muscles.
The right (dominant) upper arm measured 36cm in circumference, the left 34cm, the right forearm 28cm and the left 27.5cm. This difference between upper arm circumferences was rather greater than would be explained by right-side dominance. This may reflect disuse because of his stiff, painful left shoulder. Biceps and brachioradialis reflexes were brisker than average but symmetrical. Triceps jerks were unremarkable and symmetrical.
Light touch was preserved bilaterally. Power of all muscle groups in the right upper limb was normal. In the left upper limb, Mr Simkovic reported pain in the left shoulder during effort, but there was no objective weakness.
In the shoulders, the most striking finding was the very marked and persistent elevation of the whole left shoulder girdle accompanied by left trapezius muscle spasm. On palpation there was moderate tenderness over the anterior aspect of the left glenohumeral joint, but not laterally.
AROM of the shoulders was measured with several repetitions with the goniometer, as tabulated below:

Right

Left

Flexion

180°

70°

Extension

50°

20°

Abduction

180°

70°

Adduction

40°

0°

Internal Rotation

80°

30°

External Rotation

100°

40°

Further confirming restricted internal rotation on the left, Mr Simkovic could reach his right thumb up behind his back to T3 level (rather better than average), but his left only to the buttock. Medical Assessor Couch also noted some palpable crepitus/clicking in the left glenohumeral joint on abduction and flexion. He concluded that range of movement was a reliable basis for assessing impairment of the left shoulder.
Mr Simkovic did not complain of any pain or abnormality of the left hand. Examination of the left hand was normal apart from the variable colour changes.

Lower extremities

Both calves were equal in circumference at 41cm. Knee jerks and ankle jerks were normal and symmetrical and both plantar responses flexor (normal). Straight-leg-raising in the lying position was restricted to 30 degrees on the right with reproduction of low back pain, and 20 degrees on the left with low back pain – sciatic stretching did not reproduce any radicular symptoms on either side.
Power of extensor hallucis longus (L5 nerve root) and ankle eversion (S1 nerve root) was full on the right. On the left, effort was somewhat reduced but there was no convincing weakness. Medical Assessor Couch noted that light touch was subjectively blunt over the left lateral foot and pinprick sensation was absent (perceived as blunt) in this area. Both knees were normal in appearance with a full range of movement, intact ligaments and no crepitus.
The right knee was normal to examination, with full range of active movement without crepitus, and intact ligaments.
At the end of the assessment, Medical Assessor Couch asked Mr Simkovic to try walking on his forefeet with heels off the floor, and then on his heels with forefeet off the floor. He could do this normally with the right foot but not the left. When asked to perform a squat without hand support, he could only go down about a quarter of the way before stopping and recovering. His gait while walking in bare feet on the carpeted floor of the examination room was slow and asymmetric.

PANEL CONCLUSIONS

Diagnosis and causation

This appears to have been a serious “T-bone” crash in which a larger speeding utility with a bull-bar struck the front driver’s side of the claimant’s smaller car at some speed.
There was immediate onset of neck symptoms, onset of lower back pain within a day or two and onset of left shoulder symptoms recorded within about three weeks of the accident.
Mr Simkovic was completely unfit for work as a university lecturer for about four months and, given his presentation at this examination over three years later, he has done well to get back to part time work.
Mr Simkovic’s condition appears to be medically complex as to both diagnosis and management. The abnormal posture and muscle spasm of the left trapezius was very striking and consistent throughout a 90-minute examination. It appears that the abnormal signs in the cervical spine and left shoulder were considerably worse on this occasion than when
Mr Simkovic was assessed by Medical Assessor Home in June 2023. This is probably because Mr Simkovic underwent a left C4 injection shortly before Medical Assessor Home’s examination, whereas he had not had an injection for approximately three months when assessed by Medical Assessor Couch. Medical Assessor Couch reported Mr Simkovic gave a convincing account of good, but only temporary, relief of his neck and shoulder symptoms from these injections.
The Panel finds the following injuries were caused by the accident:
·        lumbar spine – soft tissue injury;
·        cervical spine – soft tissue injury;
·        left shoulder – soft tissue injury with subacromial bursitis and supraspinatus tendinosis, and
·        right knee – soft tissue injury.
The Panel finds the following injury was not caused by the accident:
· injury to the left hand.

PERMANENT IMPAIRMENT

Cervical spine

Medical Assessor Couch found definite muscle spasm and dysmetria in the cervical spine. Therefore, the cervical spine would be assigned to DRE Impairment Category II giving rise to a 5% WPI in according with page 104 of the AMA 4 Guides.
The insurer was critical of Medical Assessor Home in failing to provide reasons for the claimant’s dysmetria in circumstances where he concluded that imaging of the cervical spine demonstrated no abnormality. At the time of his examination Medical Assessor Couch noted gross muscle spasm in the cervical spine which explained the presence of dysmetria.
Whilst the Panel notes the insurer’s submissions in respect of the inconsistency between the assessment of Medical Assessor Home and the assessments of Dr Mellick and Dr Tomlinson who both found normal range of movement of the neck Medical Assessor Couch noted this was an unusual case but the abnormal findings at his examination were striking and consistent over a 90-minute period.
Medical Assessor Couch relied on his objective findings at the time of examination but also noted that abnormal signs from musculoskeletal injuries can vary over time.
Whilst there may be elements of a chronic pain syndrome, such a diagnosis does not mean that there is no physical abnormality.

Lumbosacral spine

In the lumbar spine there were complaints of pain and clinical findings namely dysmetria and some muscle guarding. Therefore, the lumbosacral spine would be assigned to DRE Impairment Category II giving rise to a 5% WPI in accordance with page 102 of the AMA 4 Guides.

Left shoulder

Left upper extremity impairment (UEI) was calculated as below with reference to Chapter 3, pages 41 to 45, Figures 38, 41, 44 of the AMA 4 Guides.
Medical Assessor Couch found convincing and reproducible restriction of AROM of the left shoulder.
Flexion of 70° gives 7% UEI, and extension of 20° gives 2% UEI. Abduction of 70° gives 5% UEI, and adduction of 0 ° gives 2% UEI. Internal rotation of 30° gives 4% UEI, and external rotation of 40° gives 1% UEI. This gives 21% UEI which converts to 13% WPI using table 3 on page 20 of the AMA 4 Guides.
The Panel assesses 13% WPI of the left shoulder.

Right knee

Although Mr Simkovic reported some ongoing symptoms in the right knee, the examination by Medical Assessor Couch was normal. He had no assessable impairment of the right knee.

Total impairment

Applying the Combined Values Chart the Panel assesses a total WPI of 21%.
There is no pre-existing or subsequent impairment.
There is no adjustment for the effects of treatment.

TREATMENT DISPUTE

Addos XR 30mg is Nifedipine, a calcium channel blocker used for the treatment of hypertension and sometimes angina.
Mr Simkovic confirmed he was taking medication for hypertension.
In accordance with the decision of Davies J in AAI Limited v Phillips[71] the motor accident need only be a material contribution to the need for treatment.
[71] AAI Limited t/as AAMI v Phillips [2018] NSWSC 1710.
Whilst Mr Simkovic asserts he developed hypertension following the accident there is no evidence before the Panel to establish that the motor accident contributed to the development of hypertension and the need for medication.
There is no medical opinion purporting to establish a causal relationship between the development of hypertension and the accident.
The Panel has seen no evidence that Mr Simkovic’s need for this medication is related to the injuries sustained in the accident.
In the absence of evidence about claimant’s hypertension the Panel is not satisfied that the request for prescription medicine, Addos XR 30mg is reasonable and necessary in the circumstances.
The Panel is not satisfied that the request for prescription medicine, Addos XR 30mg relates to the injury caused by the accident.

PANEL DETERMINATION

The Review Panel revokes the certificate of Medical Assessor Alan Home dated
26 June 2023 and issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a WPI which, in total, is greater than 10% and is 21%:
·        cervical spine – soft tissue injury;
·        lumbar spine – soft tissue injury;
·        left shoulder – soft tissue injury with subacromial bursitis and supraspinatus tendinosis, and
·        right knee – soft tissue injury.
The Panel finds the following injury was not caused by the accident:
· injury to the left hand.
In respect of the treatment dispute the Review Panel affirms the certificate of
Medical Assessor Home dated 26 June 2023.

Shoulder Movements	Active ROM Measured Left
Flexion	110°
Extension	50°
Abduction	100°
Adduction	40°
Internal rotation	90°
External rotation	90°

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	160°	45°
Extension	40°	10°
Adduction	40°	40°
Abduction	160°	0°
Internal rotation	90°	30°
External Rotation	90°	30°

Right	Left
Flexion	180°	70°
Extension	50°	20°
Abduction	180°	70°
Adduction	40°	0°
Internal Rotation	80°	30°
External Rotation	100°	40°

[2024] NSWPICMP 191

19 March 2024