Stosic v Allianz Australia Insurance Limited

[2024] NSWPICMP 879

DETERMINATION OF REVIEW PANEL

CITATION:

Stosic v Allianz Australia Insurance Limited [2024] NSWPICMP 879

CLAIMANT:

Radojka Stosic

INSURER:

Allianz

REVIEW PANEL

MEMBER:

Gary Victor Patterson

MEDICAL ASSESSOR:

Margaret Gibson

MEDICAL ASSESSOR:

Tania Rogers

DATE OF DECISION:

20 December 2024

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; dispute about the degree of permanent impairment; claimant was a passenger on a bus when the bus braked suddenly; claimant was thrown from her seat; claimant developed increasing neck and back pain over the subsequent days; claimant was complaining of right shoulder pain, right elbow pain, bilateral knee pain, bilateral hip pain, numbness and tingling in her right hand; claimant underwent diagnostic investigations in Serbia; Medical Assessor Berry found 10% whole person impairment (WPI) for right upper extremity; Medical Review Panel (Panel) not satisfied that motor accident contributed to a tear of the right supraspinatus; poor quality of scans and late reporting of symptoms; Panel assessed cervical spine impairment by analogy due to inconsistencies; Held – Panel finds 8% WPI; Medical Assessment Certificate revoked.

DETERMINATIONS MADE:  

CERTIFICATE

REVIEW PANEL ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENT

Certificate issued under s 7.26(7) of the Motor Accident Injuries Act2017

1.     The Review Panel revokes the certificate issued on 29 June 2023 by Medical Assessor Neil Berry and issues a new certificate determining that:

(a)    The following injuries caused by the motor accident give rise to a permanent impairment of 8% and is not greater than 10%:

·         cervical spine – soft tissue injury;

·         thoracic spine – soft tissue injury;

·         lumbar spine – soft tissue injury;

·         right upper extremity (shoulder and elbow) – soft tissue injury;

·         hips – soft tissue injury, and

·         lower extremity (knees) – soft tissue injury.

2.     There is no evidence that the motor accident contributed to a tear of the right supraspinatus/right rotator cuff tendon nor a right rotator cuff tear.

STATEMENT OF REASONS

INTRODUCTION

1. On 22 January 2020, Radojka Stosic (the claimant) was a passenger on a bus with her friend when the bus braked suddenly. The claimant was thrown from her seat and then assisted her friend who was on the floor. The claimant developed increasing neck and back pain over the subsequent days. She returned home to Belgrade, in Serbia, on 16 March 2020, as she could not afford treatment in Australia. By that time, the claimant was complaining of right shoulder pain, right elbow pain, bilateral knee pain, bilateral hip pain, numbness and tingling in her right hand. The claimant underwent diagnostic investigations in Serbia. The claimant returned to Australia after the COVID19 lockdown restrictions were eased.

2. As there is a dispute between the claimant and the insurer about the degree of permanent impairment under Schedule 2, cl 2(a) of the Motor Accidents Injuries Act 2017 (the MAI Act), the claimant was referred for assessment by Medical Assessor Neil Berry, who certified under s 7.23(1) of the Act as follows:

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

·     Cervical spine

·     Thoracic spine

·     Lumbar spine

·     Right shoulder

·     Right elbow

·     Knees

·     Hips

Medical Assessor Berry ascribed the whole of the permanent impairment to the right upper extremity/shoulder and elbow. He made no adjustment for pre-existing/subsequent impairment, apportionment or treatment effects.

THE REVIEW

1. The claimant sought a review of Medical Assessor Berry’s certificate on the basis that the assessment was incorrect in a material respect. The application for review was brought within the prescribed timeframe.

2. The claimant submitted that Medical Assessor Berry did not conduct an assessment in accordance with the Motor Accident Guidelines: Permanent Impairment and failed to discharge his statutory task. In relation to the cervical spine, the claimant submitted there is no tabulation evidencing the actual range of motion recorded in degrees. In relation to the lumbar spine, it was submitted there is no tabulation evidencing the range of motion measurements.

3. The insurer noted that a number of radiological investigations were provided. However, there is no reference to those radiological investigations in the certificate, nor does Medical Assessor Berry list the documents that were made available to him. In the circumstances, the claimant submitted that Medical Assessor Berry did not expose the process of reasoning that led to his conclusions.

4. The claimant’s application for review was opposed by the insurer. It was submitted that there are no errors in Medical Assessor Berry’s certificate and that there are no valid grounds for review. The insurer submitted that it was not necessary for Medical Assessor Berry to summarise every document in evidence before him. All that was required was that Medical Assessor Berry clearly explain his findings, based on his examination of the claimant, and his clinical expertise, at the time of the assessment.

5. The insurer also submitted that the overwhelming evidence supports Medical Assessor Berry’s conclusions, so that even if the wrong test was applied (which is disputed), there would not be a material change to the outcome of the assessment.

6. President’s delegate Golnaz Mojtahedi issued a Determination of an Application for Review of Medical Assessment on 8 September 2023 which stated the satisfaction of the President’s delegate that the medical assessment was incorrect in a material respect. The basis of that decision was stated to be that Medical Assessor Berry failed to “conduct an assessment of the cervical spine injury in accordance with the Guidelines.” and with reference to all the differentiators for the relevant diagnosis-related estimate (DRE) categories. Accordingly, the application for review was accepted.

7. In the Review Panel Report and Directions issued on 15 February last, the Review Panel indicated that it wished to see the original hard copy MRI scans of the right shoulder, thoracic and lumbar spine, referred to by Medical Assessor Berry, if they were available. Those scans were performed in Serbia and were provided to the Panel.

STATUTORY PROVISIONS

1. A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. The matter is determined at first instance by a Medical Assessor pursuant to s 7.20 of the MAI Act and, on review, pursuant to s 7.26 of the Act, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).

2. Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission, including proceedings before a Panel, reviewing a decision of a Medical Assessor.[1]

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

3. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written Application.[2]

   [2] Rule 128 of the PIC Rules.

4. The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[3]

   [3] Section 7.26(6) of the MAI Act.

5. All members of the Review Panel had no previous involvement with the claimant or with this matter.

CAUSATION OF INJURY

1. Sections 5D and 5E of the Civil Liability Act2002 apply to the MAI Act. See s 3B(2) of that Act.

2. In Briggs v IAG Limited t/a NRMA Insurance[4] his Honour Justice Wright stated at [35]:

   [4] [2022] NSWSC 372.

   “…the question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:

   Causation of injury

   6.5An assessment of the degree of permanent impairment is a medical assessment matter under cl 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a Court (or claims assessor) in considering such issues.

   6.6Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:

   ‘Causation means that a physical, chemical or biological 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 judgment.

   6.7There 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.”

OTHER ASSESSMENTS

1. The claimant’s physical injuries were assessed on 29 March 2023 by Medical Assessor Jonathan Herald who certified as follows

The following injury caused by the motor accident:

·     Soft tissue injury to the cervical, thoracic and lumbar spine

·     Soft tissue injury to the left hip, both knees, and right elbow

is a THREHOLD INJURY for the purposes of the Act.

The following injury caused by the motor accident:

·     Right shoulder rotator cuff tear

Is NOT A THREHOLD INJURY for the purposes of the Act.

The following injuries caused by the motor accident are THRESHOLD INJURIES:

·     Soft tissue injury to the cervical, thoracic, and lumbar spine

·     Soft tissue injury to the left hip, both knees and right knee

An assessment of the degree of permanent impairment of these injuries is therefore not required.

There is a separate review of Medical Assessor Herald’s certificate.

MATERIAL BEFORE THE REVIEW PANEL

1. The claimant relied upon the following material which the Review Panel has considered:

   (a)    claimant’s submissions dated 14 July 2023 in support of Application for Review of Medical Assessor Berry’s certificate dated 29 June 2023 (previously summarised), and

   (b)    bundle of radiological investigation reports and translation reports (some 1,200 pages).

   The Review Panel has not been able to locate any whole person impairment assessment in the claimant’s bundle.

2. The insurer relied upon the following material which the Review Panel has considered:

   (a)    Insurer’s submissions dated 1 August 2023 for review of Medical Assessor Berry’s certificate (previously summarised).

   (b)    Insurer’s WPI submissions dated 23 March 2023:

   the insurer denied the common law damages claim on the basis that the claimant suffered a minor/threshold injury. The insurer noted that the claimant had a pre-accident history of neck and back pain which was recorded by her treating general practitioner (GP) (Dr Kim Ong) on 25 January 2020 upon initial examination. Dr Ong diagnosed an acute spinal strain with possible discogenic injuries. The insurer submits that the significant number of disc herniations identified in the cervical, thoracic and lumbar spine are incidental and degenerative in nature, as opposed to trauma-related, considering the claimant’s disclosed prior neck and back troubles.

   (c)Report dated 9 March 2023 by Dr Robin Mitchell, occupational physician, to the insurer’s lawyers.

   (d)Dr Mitchell records the circumstances of the motor accident. The claimant was a passenger on the bus which braked suddenly. She was thrown from her seat. There was no head strike and the claimant did not lose consciousness. The claimant attended Dr Ong a few days later and was prescribed analgesia. The claimant then returned to Belgrave and consulted various doctors there, reported complaining of pain in the right shoulder and elbow, both hips and both knees. The claimant was referred for scans to which Dr Mitchell refers. He records that the claimant apparently was diagnosed with rotator cuff syndrome, medial epicondylitis and carpel tunnel syndrome, for which she was prescribed analgesia and referred for physiotherapy. (The Panel notes that, whereas the various specialists reports have been translated from Serbian into English, all of the stated diagnoses are in Latin.) Dr Mitchell notes the history of previous low back pain. He records that the claimant’s present symptoms are continuing pain in her neck, thoracolumbar back, right shoulder and hand, both knees. Dr Mitchell records his findings upon physical examination. The range of movement was reduced in the neck and thoracolumbar back. He describes in detail the diagnostic findings translated from the Serbian reports. He notes that some of the terminology is not used in Australia.

   Under the heading DIAGNOSIS, Dr Mitchell states as follows:

   “She appears to have aggravated long-standing and well-developed degenerative changes in her neck, thoracic and lumbar back as well as the right shoulder and each knee.”

   Dr Mitchell finds there is a direct temporal relationship between the injuries sustained and the subject motor accident. Dr Mitchell opines that the claimant’s injuries fall within the definition of a minor (soft tissue) injury. In relation to the diagnostic reports, Dr Mitchell states as follows:

   “There was no clinical or radiologically significant injury apparent and although there may have been a partial thickness tear of the supraspinatus tendon of the right shoulder…… it was of a long-standing nature with calcification already having developed, and it is difficult to interpret the findings as being significant.”

   In a separate Impairment Assessment of the same date, Dr Mitchell assessed 8% whole person impairment for the right shoulder. He found 0% whole person impairment for the cervical spine, thoracic spine, lumbar spine, left shoulder, right wrist and hand, each hip and each knee joint.

   (e)Reports of Serbian treating specialists (x12) to which Dr Mitchell refers. The Review Panel sees no utility in further describing each of those reports.

   ·MRI right knee dated 11 May 2020;

   ·MRI left knee dated 11 May 2020;

   ·MRI coxofemoral joints dated 12 May 2020;

   ·MRI cervical spine dated 13 May 2020;

   ·MRI lumbosacral spine dated 13 May 2020;

   ·MRI thoracic spine dated 13 May 2020;

   ·MRI right elbow dated 14 May 2020, and

   ·MRI right shoulder dated 14 May 2020.

   (f)Clinical records of Valley Plaza Medical Centre as at 13 June 2023.”

EXAMINATION REPORT

1. The claimant was assessed on 26 September 2024 by Medical Assessor Tania Rogers whose report is as follows:

   “Examination 26/9/24 PIC rooms

   Ms Stosic was accompanied to the Personal Injury Commission offices by a relative; however, she attended the assessment alone. She reported that she had travelled by train from Green Valley. She usually resides with her family in Serbia.

   The interpreter engaged by the MAS, Patrick Matijevic, National Accreditation Authority for Translators and Interpreters number CPN3ZK99F, was present for the duration of the assessment.

With regard to occupational history, Ms Stosic reported that she worked as an assistant in nursing for many years and retired in 2018

In regard to medical history, Ms Stosic reported that she sustained a lumbar spine injury some years ago, when working as a nurse. She has ongoing back pain.

In regard to the history of the motor accident, Ms Stosic stated that she was travelling in a bus in Liverpool with her sister-in-law. She was seated in the first row next to the window behind the driver and her sister-in-law sat next to her.

All of a sudden, the bus suddenly stopped and Ms Stosic and her sister in law were thrown forward out of the seats and fell on the floor near the driver. Some other passengers helped them get up. Ms Stosic is not sure how she landed. She cannot recall if she hit her head.

The bus driver then started the bus again and kept driving. The bus driver never talked to them. They got out of the bus at their destination.

Ms Stosic stated that at that time she felt pain in the right shoulder, the neck, the right hip, right knee, right shoulder, right elbow and dorsal right wrist. She was scared as she was in a strange country and did not know the laws.

That night, Ms Stosic could not sleep due to the pain and applied some cream that her daughter had. She felt pain in the right dorsal wrist as well. She also said that she has pain in her chest.

Ms Stosic recalled that she subsequently consulted a general practitioner with her daughter. The doctor prescribed painkillers and told them she had to have scans. She took painkillers and applied cream.

Ms Stosic said that she could not undertake the scans due to the cost and, returned to Serbia in March 2020 which was about two months after the subject motor accident.

She saw this GP once more who wrote a report for her lawyer.

In Serbia, Ms Stosic underwent an MRI scan of her right shoulder 3.7 months after the subject matter accident and was treated with physiotherapy. Additionally, Ms Stosic was told she needed carpal tunnel surgery but decided not to go ahead.

No relevant injuries or conditions are reported to have been sustained since the motor accident.

In regard to current symptoms, Ms Stosic reports that she experiences sternal pain, constant right lateral hip pain, and constant right shoulder pain that worsens with arm movement. Ms Stosic has also been experiencing frequent pain in her right arm generally, right knee, and posterior neck. Additionally, on specific inquiry, she reported that she has pins and needles in all fingers of her right hand.

Ms Stosic further reported that she can walk on flat surfaces unrestricted but experiences pain when going up or downstairs. She can sit for about half an hour at a time and prefers to stand when possible. Ms Stosic reported that she can stand so for about an hour at a time. While walking, she can manage 45 minutes to an hour on flat surfaces, although she experiences mild pain.

Ms Stosic takes Brufen daily, usually three times a day, and she also takes Sumatriptan for migraines, typically 2-3 times a month for two to three days at a time.

Clinical Examination

On examination, Ms Stosic was a pleasant lady of medium build who spoke through the interpreter.

Ms Stosic declined to remove any items of clothing for the purposes of examination. She felt it would be too difficult to put the clothing back on. Ms Stosic did remove her shoes. She was able to roll up her sleeves above the elbows and roll up her pants above the knees.

There was a voluntary tremor of the right arm and right leg on active movement which disappeared when she was distracted. Ms Stosic reported dizziness when getting up from a lying position. Ms Stosic demonstrated very high levels of illness behaviour.

Weight was 83.8kg, and height was 161 cm, giving a Body Mass Index of 32.3. Gait and posture were normal. There was no deformity of the cervical spine. There was no guarding in the cervical spine.

On formal examination of active range of movement, there was nil movement during flexion, 50% of the normal range during extension, nil movement during right lateral flexion, 50% of the normal range during left lateral flexion, 15% of the normal range during lateral rotation to the right, and 40% of the normal range during lateral rotation to the left.

Power was normal in the upper limbs. There was absent sensation to light touch in the right arm from the hand to the elbow in a non-dermatomal glove distribution.

Biceps brachii reflexes were present and symmetrical, supinator reflexes were present and symmetrical and triceps reflexes were present and symmetrical.

Forearm circumference, as measured 10 cm distal to the olecranon, was 29 cm in the right and 28 cm in the left arm. Upper arm circumference measured 10 cm distal to the olecranon, was 33 cm on the right and 32 cm on the left. The slight increase in limb circumference on the right was consistent with right hand dominance.

On examination of the thoracic spine, there was no tilt or deformity of the thoracic spine. Spinal curvatures were normal. No muscle guarding was evident

Forward flexion, extension, right lateral flexion, and left lateral flexion were 80% of the normal range. Rotation to the right and left was 40% of the normal range. No dysmetria was observed.

On examination of the lumbar spine, there was no tilt or deformity of the lumbar spine. Spinal curvatures were normally maintained. There was no muscle guarding.

Forward flexion, extension, right lateral flexion, and left lateral flexion were 80% of the normal range. Rotation to the right and left was 40% of the normal range.

Seated straight leg raising was to 90^° bilaterally and was not accompanied by complaints of pain.

Supine straight leg raising testing was to 30^° on the right and was reportedly limited by pain in the lower back and was to 90^° on the right and was reportedly limited by pain in the lower back. There were no consistent signs of neural tension.

Knee reflexes in the lower limbs were present and symmetrical. Ankle reflexes were present and symmetrical.

Thigh circumference was 51cm in the left and 51cm in the right thigh measured 10 cm proximal to the upper border of the patella. The maximum left calf circumference was 38cm and right calf circumference was 40cm.

Shoulder Movement	Active ROM RIGHT	Active ROM LEFT
Flexion	90° 40° 20°	130°
Extension	30°	50°
Abduction	60° 40° 30 °	130°
Adduction	20°	50°
Internal Rotation	50°	80°
External Rotation	20°	40°

The shoulder contour was symmetrical. Range of motion of the shoulders was assessed with a goniometer, and the results were as follows:

On examination of the elbows, there was no deformity, scars, tenderness or crepitus of the elbows. Range of motion of the elbows was assessed with a goniometer and the results were as follows:

Elbow Movement	Active ROM RIGHT	Active ROM LEFT
Flexion	80° 100° 110°	120°
Extension	0°	0°
Pronation	60°	80°
Supination	60°	80°

On observation of the wrists, there was no deformity, scars, or muscle wasting of the wrists or hands. Range of motion of the wrists was assessed with a goniometer and the results are as follows:

Wrist Movement	Active ROM RIGHT	Active ROM LEFT
Flexion	60°	80°
Extension	60°	80°
Radial Deviation	20°	20°
Ulnar Deviation	30°	30°

Tinel’s sign was negative bilaterally.

With regard to the lower extremities, there were no visible deformities of the legs. Hip, knee and ankle alignment were within normal limits clinically.

Heel and toe walking were normal. She barely squatted. Power was grade 5/5 (normal) in the lower limbs. Skin temperature and colour in the lower limbs was normal.

There was reduced sensation to light touch in the entire right lower limb below the knee. Varicose veins of the right calf were noted.

Trendelenburg sign was positive bilaterally. Range of motion of the hips was assessed with a goniometer and the results are as follows:

Hip Movements	Active ROM RIGHT	Active ROM LEFT
Flexion	40° 90°90°	110°
Extension	No flexion contracture	No flexion contracture
Adduction	20°	20°
Abduction	40°	60°
Internal Rotation	0°	30°
External Rotation	20°	50°

There was no knee effusion present. There was no crepitus evident in either knee. Anterior drawer testing was negative. McMurray’s test was negative.

Range of motion of the knees was assessed with a goniometer and the results are as follows:

Knee Movements	Active ROM RIGHT	Active ROM LEFT
Flexion	40° 90° 90°	120°
Extension	0°	0°

Consistency of Presentation

Ms Stosic did not mention back pain initially but, on specific inquiry, stated that she had increased back pain after the accident.

I asked her about the side of the hip injury extensively, and she confirmed on several occasions the pain was in her right hip, not her left hip.

I indicated that the range of motion today was significantly worse than found by previous examiners. She stated that the pain was getting worse as time progressed and because she was getting older.

I also noted that Dr Ong only referred to back pain and did not mention shoulder injuries or any other injuries. She stated that she complained about all other areas that were painful and that he had told her to have scans.

I also highlighted that the range of motion today was variable in the spine and in the knees, and she stated that that was because she was lying down when I measured the knee movement initially.

I noted that the right shoulder range of motion varied and she stated that was because she was in pain.

IMPAIRMENT

Cervical Spine

There was dysmetria. There was no muscle guarding, non-verifiable radicular complaints, radiculopathy, fractures, multilevel structural compromise or surgery. This meets the criteria for DRE Cervicothoracic Category II which is 5% WPI (AMA 4 p. 3/103 - 104; Motor Accident Guidelines Part 6).

Lumbar Spine

There is no dysmetria, guarding, non-verifiable radicular complaints, radiculopathy, fractures, multilevel structural compromise or surgery. This meets the criteria for DRE Lumbosacral Category I which is 0% WPI (AMA 4 p. 3/102; Motor Accident Guidelines Part 6).

Upper Extremity

Motor Accident Guidelines

6.48 Assessment of the upper extremity involves a physical evaluation that can use a variety of methods. The assessment in this Part of the Motor Accident Guidelines does not include a cosmetic evaluation, which should be done with reference to 'Other body systems' within this part of the Motor Accident Guidelines and Chapter 13 of the AMA4 Guides.

6.49 The assessed impairment of a part or region can never exceed the impairment due to amputation of that part or region. For an upper limb, therefore, the maximum evaluation is 60% WPI.

6.50 Although range of motion appears to be a suitable method for evaluating impairment, it can be subject to variation because of pain during motion at different times of examination and/or a possible lack of cooperation by the person being assessed. Range of motion is assessed as follows:

(a) a goniometer should be used where clinically indicated

(b) passive range of motion may form part of the clinical examination to ascertain clinical status of the joint, but impairment should only be calculated using active range of motion measurements

(c) if the medical assessor is not satisfied that the results of a measurement are reliable, active range of motion should be measured with at least three consistent repetitions

(d) if there is inconsistency in range of motion, then it should not be used as a valid parameter of impairment evaluation (see clause 6.40 of these Guidelines)

(e) if range of motion measurements at examination cannot be used as a valid parameter of impairment evaluation, the medical assessor should then use discretion in considering what weight to give other available evidence to determine if an impairment is present.

Right Shoulder

There was inconsistency in range of motion within the assessment, therefore range of motion cannot be used as a valid parameter of impairment evaluation.

Assessment by analogy with mild crepitations of the acromioclavicular joint is appropriate using Table 18, page 58 and Table 19, page 59, AMA 4. 15% WPI (Table 18) multiplied by 10% (Table 19) is 1.5% WPI which is rounded up to 2% WPI.

Right Elbow

There was inconsistency in range of motion within the assessment, therefore range of motion cannot be used as a valid parameter of impairment evaluation. There is no other impairment, Therefore the WPI is 0%.

Right Wrist

Range of movement of the right wrist is assessed as 0% (Page 35 – 38, AMA 4.)

Right Lower Extremity

There was inconsistency in range of motion within the assessment, therefore range of motion cannot be used as a valid parameter of impairment evaluation.6.84 Although range of motion (pages 77-78, AMA4 Guides) appears to be a suitable method for evaluating impairment, it can be subject to variation because of pain during motion at different times of examination and/or a possible lack of cooperation by the injured person being assessed. Range of motion is assessed as follows:

(a) a goniometer should be used where clinically indicated

(b) passive range of motion may form part of the clinical examination to ascertain clinical status of the joint, but impairment should only be calculated using active range of motion measurements

(c) if the medical assessor is not satisfied that the results of a measurement are reliable, active range of motion should be measured with at least three consistent repetitions

(d) if there is inconsistency in range of motion, then it should not be used as a valid parameter of impairment evaluation.

(e) if range of motion measurements at examination cannot be used as a valid parameter of impairment evaluation, the medical assessor should then use discretion in considering what weight to give other evidence available to determine if an impairment is present.

There is no gait derangement, muscle atrophy, true muscle weakness or joint ankylosis. There is no assessable impairment under Table 64 AMA 4 page 85-86. There is no assessable impairment under Table 62 AMA 4 page 83.

There was inconsistency in range of motion of the right hip and knee within the assessment, therefore range of motion cannot be used as a valid parameter of impairment.

Right knee impairment could be assessed by analogy to partial medial or lateral meniscectomy which is 1% WPI (Table 64, page 85 AMA4)

TOTAL WPI

Cervical Spine	5%
Lumbar Spine	0%
Right Lower Extremity	1%
Right Upper Extremity	2%”

FINDINGS

1. The Review Panel conducts a new assessment of all the matter with which the medical assessment is concerned.[5] The Review Panel adopts the examination findings and reasons of Medical Assessor Rogers with which Medical Assessor Gibson concurs. The Review Panel is not required to choose between competing medical opinions and is required to form its own opinion.[6]

   [5] Section 7.26(6) of the MAI Act

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

2. The claimant was unable to provide to Medical Assessor Rogers a good history of the mechanism of her injuries, particularly as regards to the right shoulder. There is no evidence from the bus company as to the details of what occurred. There is no evidence of complaint or pain in relation to the claimant’s right shoulder. The Review Panel accepts Dr Mitchell’s opinion that there would have been pre-existing degenerative pathology in the right shoulder.

3. The Review Panel notes that the imaging provided by the claimant is of poor quality and is not greatly helpful. The claimant did not provide a better or more recent MRI scan.

4. Based upon the imaging that has been provided, the Review Panel is not satisfied that the motor accident was causative of a tear of the right rotator cuff/supraspinatus, for the reasons stated by Medical Assessor Rogers, as a matter of medical determination, and as a matter of non-medical factual determination.

5. The Review Panel notes the considerable delay in the onset of right shoulder symptoms. The Review Panel notes the insurer’s submissions that the claimant did not list the right shoulder as an injury in her Personal Injury Benefits Application and that no diagnosis pertaining to the right shoulder was provided by the claimant’s treating general practitioner. Those submissions were not disputed by the claimant.

6. The Review Panel are of the opinion that, had the claimant sustained a rotator cuff tear in the subject accident, there would have been early symptoms and signs suggestive of such a diagnosis, recorded by the claimant’s treating doctors.

7. The Review Panel agrees with the findings of Medical Assessor Berry that all of the claimant’s injuries relevantly were soft tissue injuries. It respectfully disagrees with Medical Assessor Berry as to the extent of the whole person impairment arising from those injuries.

CONCLUSIONS

1. For the reasons stated, the Review Panel concludes that the certificate issued by Medical Assessor Berry on 29 June 2023 should be revoked. The new certificate appears at the commencement of these reasons.