Sudan v QBE Insurance (Australia) Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Sudan v QBE Insurance (Australia) Limited [2023] NSWPICMP 548
CLAIMANT:	Mohamed Abdul Razzak also known as Sami Sudan
INSURER:	QBE Insurance Australia Ltd
REVIEW PANEL
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Ian Cameron
MEDICAL ASSESSOR:	Chris Oates
DATE OF DECISION:	1 November 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical assessment of whole person impairment (WPI) and treatment (neurosurgeon referral and physiotherapy) by Medical Assessor Wijetunga and claimant’s review under section 7.26; claimant injured in April 2018 alleging injuries to neck, back, shoulders and right knee; main issue was causation due to previous slip and fall (2014), previous car accident (2015) and previous shoulder problems including surgery; claimant attended GP in the weeks and days before the accident complaining of neck and back pain and was referred for scans; Held – Panel found claimant injured his cervical spine by way of an exacerbation; WPI 5% less 5% for a previous asymptomatic condition; Panel also found claimant injured thoracic spine by way of an exacerbation but no evidence of a pre-accident symptomatic impairment and WPI 5%; Panel not satisfied claimant injured his lower back in the accident therefore no impairment; Panel also not satisfied a discrete injury occurred to the shoulders but that any shoulder impairment was related to his neck injury; WPI assessed at 0% due to near normal range of motion; Panel satisfied claimant sustained right knee injury and WPI assessed at 2%; total impairment not greater than 10% but different % to original assessor therefore certificate revoked; physiotherapy treatment not allowed due to uncertainty of what the treatment was for, and certificate revoked; referral to a neurosurgeon was allowed and certificate confirmed.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION In respect of the certificates issued by Medical Assessor Wijetunga dated 7 December 2022, the Review Panel: 1. Revokes the certificate in respect of the degree of whole person impairment and certifies that the claimant does not have a whole person impairment of greater than 10%. 2. Revokes the certificate about two physiotherapy sessions and certifies that they are neither related to the injury caused by the motor accident nor reasonable and necessary in the circumstances. 3. Confirms the certificate about the referral to Dr Ghahreman which is related to the injuries caused by the accident and is reasonable and necessary in the circumstances.

STATEMENT OF REASONS

INTRODUCTION

On 4 April 2018, Sami Sudan was involved in a motor accident. He was asleep in a car driven by his sister when he says there was an impact from the driver’s side.
Mr Sudan says he injured his spine, shoulders and right knee in the accident and developed a psychological condition. Mr Sudan has made a claim for statutory benefits and a separate claim for damages against QBE, the third-party insurer of the vehicle that he says caused his accident and his injuries.
A medical dispute about the degree of the claimant’s whole person impairment (WPI) has arisen in connection with the damages claim and in November 2020 Mr Sudan referred that dispute to the Personal Injury Commission (the Commission) for assessment.[1]
[1] Proceedings numbered M1035 8326.
A dispute about two sessions of physiotherapy and a referral to Dr Ghahreman arose in the statutory benefits claim and in January 2021 these two disputes were also referred to the Commission for assessment.[2]
[2] Proceedings numbered M1038 6928.
All three disputes were referred to Medical Assessor Wijetunga who, on 7 December 2022 determined that Mr Sudan did not have a WPI of greater than 10%. While she also determined that the disputed treatments were both related to the accident, she found that only the consultation with Dr Ghahreman was reasonable and necessary. Medical Assessor Wijetunga also made findings that the treatment in dispute would improve Mr Sudan’s recovery.
The claimant then lodged an application with the Commission seeking a review of the Medical Assessor’s decisions.
On 6 March 2023, a delegate of the President determined there was reasonable cause to suspect a material error in the WPI assessment and allowed the Review to proceed.
On 10 March 2023, the President convened this Panel to conduct the Review.

LEGISLATIVE FRAMEWORK

Introduction

Mr Sudan’s claims and his entitlement to benefits and compensation are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).

Statutory benefits

Statutory benefits payable by the “relevant insurer”[3] in accordance with Part 3 of the MAI Act include:
(a) weekly loss of income benefits for “earners” under Division 3.3, and
(b) treatment and care benefits under Division 3.4.
[3] The “relevant insurer” is determined in accordance with s 3.2 of the MAI Act.
Unlike the previous scheme, damages for treatment and care cannot be recovered by the claimant against the insurer. The mechanism for the recovery of the cost of treatment and care caused by the accident is through the statutory benefits claim.
Section 3.24(2) provides as follows:
“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.”

Damages

If an injured person can prove fault on the part of another person (or the claim falls within the no-fault provision of Chapter 5 of the MAI Act) then the injured person may wish to make a claim for damages. That claim can include claims for both economic or pecuniary losses and non-economic loss damages.
Damages for non-economic loss are limited and restricted by the provisions in Part 4, Division 4.3 of the MAI Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 4.13[4] and entitlement to those damages is restricted by s 4.11 to persons who have a greater than 10% WPI as a result of the injuries sustained in the accident.
[4] The current maximum as of October 2023 is $620,000.

Permanent impairment assessment

The MAI Act says that permanent impairment is to be assessed in accordance with Chapter 6 of the Motor Accident Guidelines (the Guidelines)[5] which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides).
[5] Section 7.21. The current version of the Guidelines is Version 9.1 which is effective from 1 April 2023.
Due to the nature of the injuries sustained by the claimant, chapter 3, the musculoskeletal system chapter of the AMA 4 Guides is relevant.

Dispute resolution

If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination.[6]
[6] Section 4.12 of the MAI Act.
Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Wijetunga’s, further medical assessments and the review of medical assessments by this Panel.[7]
[7] Sections 7.20, 7.24 and 7.26.
A review under the MAI Act is not an “appeal” looking for and correcting errors in a medical assessment. A review once allowed by the President’s delegate is an assessment de novo.

ASSESSMENT UNDER REVIEW

Medical Assessor Wijetunga examined the claimant on 30 November 2022 before issuing her certificate on 7 December 2022.
In terms of WPI, the Medical Assessor confirms at [2] she was asked to assess the following injuries:
(a)   cervical, thoracic and lumbar spine;
(b)   left and right shoulder, and
(c)   right knee.
In terms of the two disputed forms of treatment (physiotherapy and the referral to

Dr Ghahreman), she confirms at [3] she was asked to determine:
(a)   whether each form of treatment relates to the injury caused by the accident;
(b)   whether each form of treatment is reasonable and necessary, and
(c)   whether each form of treatment will improve the recovery of the injured person.
Medical Assessor Wijetunga has the following history:
(a)   the claimant was a tree lopper working reduced hours due to pre-existing neck and back problems;
(b)   after the accident he had six months off work but returned to work on further reduced hours;
(c)   the claimant disclosed a 2015 left hip injury which resulted in occasional paraesthesia but no pain;
(d)   he also disclosed a 2016 motor accident with neck pain and interscapular pain;
(e)   the claimant said he had previous surgery to the right shoulder 10 years before and to the left shoulder seven or eight years ago. Both surgeries were to repair torn rotator cuffs, but he had no symptoms for the 12 months before the accident;
(f)    when questioned about pre-accident back pain, he initially denied it but then accepted he may have had lower back pain, but he now has thoracic or mid back pain;
(g)   he reported shoulder pain coming from his neck before the accident and ongoing hip pain;
(h)   he reduced his fishing activities after the accident;
(i)    the claimant said his memory has deteriorated since the accident. He reported anxiety and extremely high blood pressure immediately after the accident and declined transport to hospital;
(j)    his sister drove the car home and he recalled neck and knee pain as he walked around after the accident;
(k)   over a few months his pain worsened, and his mental health issues deteriorated and he resumed counselling;
(l)
the claimant said that before the accident he had consulted a surgeon and that a year after the accident he was referred to a pain specialist and then in 2021 to

Dr Ghahreman who suggested cortisone injections to the lower back. He had two cortisone injections in the neck but his neck pain was getting worse;
(m)     he offered no “plausible explanation” for why he saw his doctor for neck pain a few weeks before the accident, and
(n)   the claimant reported a car accident “about a year ago” and experienced worsening of his neck pain.
The claimant’s current symptoms included:
(a)   constant left sided neck pain extending to the shoulder blade and shoulder with pain down the arm and numbness of the entire hand. He has some spasm in the left pectoralis;
(b)   he did not describe a discrete shoulder injury but pain in the trapezius worse on the left side;
(c)   intermittent thoracic spine pain which varies in severity, and he has been to the hospital 20 times in the last 12 months for this;
(d)   lumbar spine is tight and comfortable when he is anxious. He gets pain in his legs which is muscular and around the calves, and
(e)   right knee intermittent knee pain once a week or month and he has some instability and locking.
The claimant was said to take Panadeine Forte and Endone one to two times a week and goes to physiotherapy ever couple of weeks which provided temporary relief.
On examination of the neck there was no spasm or guarding but there was dysmetria. There were no neurological signs which might indicate radiculopathy. There was a complaint of reduced sensation in the whole of the left upper limb which Medical Assessor Wijetunga did not feel related to an appropriate dermatome.
In the thoracic spine there was some muscle spasm on the right side at T6 to T8 and the claimant was tender on palpation. He had no tenderness in the lumbar spine. There was dysmetria in both the lumbar and thoracic spine. There were no lower limb neurological defects to suggest radiculopathy.
There was mild restriction of both internal and external rotation in both limbs.
After considering the documents and the mechanism of accident, Medical Assessor Wijetunga found the following injuries were caused by the accident:
(a)   cervical spine - whiplash and aggravation of underlying degenerative changes;
(b)   left shoulder – whiplash, and
(c)   right shoulder – whiplash.
She found no injury to the thoracic or lumbar spine or right knee caused by the accident and assessed WPI at 5%.
She found both the physiotherapy and referral to Dr Ghahreman related to the accident because they were both for treatment to the neck however, she found the physiotherapy not reasonable and necessary five years after the accident noting that according to the claimant it only gave him a couple of hours relief.
She allowed the referral on the basis the claimant’s symptoms were worsening and it was reasonable to explore whether it was related to the accident and the possibility of surgery.

ISSUES FOR DETERMINATION

Claimant’s submissions

The claimant says he is “appealing” the finding that the claimant did not injure his right knee, thoracic or lumbar spine in the accident. He refers at [D5] to there being a previous medical assessment (concerning what was then “minor” injury) and an “appeal” of that decision on

11 December 2018 which found that the claimant did injure his cervical and lumbar spine and right knee.
The claimant refers to the following evidence:
(a)   the ambulance report which mentions right knee pain;
(b)   an MRI scan of the claimant’s cervical spine was done on 28 March 2018 (a week before the accident);
(c)   the Excelsior Family Medical Centre note of 3 April 2018 (the day before the accident). The claimant says the Medical Assessor misquoted this note in that the claimant attended on 3 April 2018 to discuss his cervical spine MRI results and that further MRIs of the thoracic and lumbosacral spine were ordered on that day. The claimant also relies on the entry dated 29 April 2018 where the claimant refers to neck pain, mid back, thoracic and upper lumbar spine and right knee pain;
(d)   the claimant says the Medical Assessor has contradicted herself by saying the claimant injured his upper thoracic spine but did not injure his lower thoracic spine and then saying he did not injure his thoracic spine. The Medical Assessor says on page 1 that the claimant sustained a thoracolumbar musculoligamentous strain in the accident, and
(e)   the claimant was asleep and does not recall the precise mechanism of the accident and therefore Medical Assessor Wijetunga has made assumptions about how the accident occurred.

Insurer’s submissions

The insurer submits that the claimant is arguing about an error in causation but does not make any submissions as to the materiality of the error.
The insurer says the error on page 1 (thoracolumbar musculoligamentous strain caused by the accident) is an obvious one and should be corrected on that basis not on Review.
The insurer says the claimant has selectively quoted from the decision in terms of the Medical Assessor’s finding of upper thoracic injury which it says is part of the cervical spine injury. The insurer points to the evidence from the claimant’s chiropractor which refers to thoracic pain with muscle spasm just before the accident.
The insurer says the Medical Assessor was entitled to use her own clinical judgment about the right knee injury.
The insurer points out there are no submissions from the claimant concerning the lumbar spine.

Procedural matters

The Panel notes that Medical Assessor Wijetunga was referred three medical assessment matters contained within two separate Commission proceedings as follows:
(a)   a dispute under schedule 2(2)(b) about physiotherapy treatment;
(b)   a dispute under schedule 2(2)(b) about the referral to Dr Ghahreman, and
(c)   a dispute under schedule 2(2)(a) about WPI.
The Medical Assessor issued a single document made up of:
(a)   a certificate as to the degree of the claimant’s WPI;
(b)   a certificate as to whether the physiotherapy and consultation relate to the injuries caused by the accident;
(c)   a certificate as to whether the physiotherapy and consultation are reasonable and necessary in the circumstances;
(d)   a certificate as to whether the physiotherapy and consultation will improve the recovery of the injured person, and
(e)   a single statement setting out the reasons for the various certifications.
The claimant lodged one application for review but does not appear to have disclosed in that application which assessment of which medical assessment matter he was asking to be reviewed. The submissions referred solely to the medical assessment matter concerning whole person impairment. The President’s delegate’s decision does not specify which certification of which medical assessment matter was under review but refers to the submissions which only mention the WPI assessment.
The Panel met on 30 June 2023 and reported to the parties on the same date. The parties were asked to clarify which of the three medical assessment matters they consider are to be determined by the Panel.
The parties confirmed with the Panel that the Panel should consider all of the matters certified by Medical Assessor Wijetunga.
While the parties had agreed that the Panel could not consider the dispute about whether the treatment would improve the recovery of the injured person, the Panel notes the recent passage of an amendment to the Motor Accident Injuries Regulation which, in cl 42, restores the power of the Panel to determine such a dispute.
The Panel also noted that none of the submissions filed by the parties raised any issue with the lumbar spine assessment and asked the parties to confirm whether that injury was disputed or whether the Medical Assessor’s decision about that injury was accepted. The claimant confirmed a dispute remained about the lumbar spine.

REVIEW OF THE EVIDENCE

Claim form and claim documents

The application for personal injury benefits was signed by the claimant and dated

12 April 2018.[8] The claimant said he injured his neck, right arm, right shoulder, left arm, left shoulder, chest, abdomen, back, right leg, right knee and sustained nervous shock.
[8] Page 1 of AD1.
The claimant acknowledged he had previous symptoms in his neck, right knee, right shoulder, left shoulder and back but that these symptoms were made worse by the accident.
The certificate of capacity attached to the clam form is dated 29 April 2018 and was completed by Dr Majeed of the Excelsior Street Medical Practice. She diagnosed “neck, thoracic, lumbar spine pain, right knee pain post MVA.” She noted the claimant had pre-existing lumbar and cervical disc disease and recommended MRIs, pain killers and rest and a referral to Dr Gammaolseer, neurosurgeon.
The ambulance report[9] says:
“Patient was passenger involved in low speed motor vehicle accident. Other car hit rear driver’s side panel of patient’s car causing large scratches but minimal dent. Patient was asleeep laying lateral on reclined seat and hit right side head on B pillar. Patient was wearing seatbelt. Now complains of headache and right knee pain. Patient was ambulant post accident but then became dizzy and sat back down.”
[9] Page 26 of AD1 and page 284 of AD2.
While there is a police report[10] it appears to be a report made a week after the accident and does not provide much relevant detail of the accident.

Treating medical records and reports

[10] Page 224 of AD2.

Pre-accident treatment records

There are hundreds of pages of treating material. The Panel does not intend to refer to all of them but the material that is of particular relevance to the matters in dispute between the parties.
Handwritten notes from Mary Street physiotherapy[11] record an attendance on

14 August 2014 for left shoulder and neck problems (with a reference to the Balmoral wharf fall) and attendances in March and April 2016 for lower back pain following an acute aggravation in the November 2015 car accident. A pain chart has marked upon it the area of the neck and between the scapular and into the upper thoracic area as well as the lower back and into the lower thoracic area.
[11] Page 1056 of AD2.
Notes have been produced by Ken McAviney Chiropractor,[12] however these are handwritten and difficult to interpret. They evidence pre-accident complaints in the thoracic spine, headaches, neck and lower back problems with treatment before the accident on

3 November 2017 and 18 January 2018.
[12] Page 245 of AD2.

Clinical notes have been provided by Granville Physiotherapy.[13] The claimant was provided with two treatments before the accident in April and May 2017 to his lower back, neck (which was not as bad) and there is a comment that the hips were “tight”.
[13] Page 262 and again at page 474 of AD2.
Notes have also been provided by the William Street Medical Centre in Granville.[14] These notes begin in February 2013 with three complaints one of which was “knee pain worse when walking”. On 24 March 2013 the claimant was referred to Dr Lee (orthopaedic surgeon) regarding a fractured phalanx. Tramal was prescribed in May 2013 and a Centrelink form was completed.
[14] Page 815 of AD2.
On 28 July 2014 the claimant attended Dr Dagher at William Street reporting a fall two weeks previously with lower back and right hip pain. Radiology was requested and a week later the claimant was still complaining of low back pain and a referral was given to Dr Maniam.
It would appear the claimant did not see Dr Maniam, but he did see Dr Jones, orthopaedic surgeon who wrote to Dr Dagher on 14 August 2014. Dr Jones had a history of a heavy fall on to the claimant’s right side at Balmoral wharf. The claimant had continuing pain in the low back and intermittent numbness in his right foot. He had rotator cuff problems in the past and said his shoulders and neck had been more painful since the fall. He diagnosed a soft tissue injury but found no neurological signs other than the numbness in Mr Sudan’s right foot.
After viewing the MRIs Dr Jones referred the claimant for physiotherapy. This was provided at the Auburn Medical Centre resulting in some improvement of pain and movement.
There were further attendances for back pain in August and September 2014. On

27 October 2014 the claimant was complaining of neck as well as back pain since his accident. No medication was prescribed, but Centrelink certificates were provided.
On 11 and 20 February 2015 the claimant attended with back pain and on both occasions Panadeine Forte was prescribed.
The claimant started attending The Excelsior Family Medical Practice (Excelsior) on

4 April 2014.[15] The active past history is noted as high cholesterol and high blood pressure, sinusitis, osteoarthritis since 21 September 2015, meralgia paraesthesia 16 October 2015 and bilateral shoulder arthroscopy 11 November 2015.
[15] Page 278 of AD1 and pages 305 and 927 and again at 977of AD2.
Some relevant entries include the following:
(a)   21 September 2015 – chronic pain, left shoulder, right tear, fall on right hip after accident on road. A referral to Dr Bokor, orthopaedic surgeon was given;
(b)   16 October 2015 – long consultation regarding bilateral hip pain and back pain and meralgia paraesthetica (numbness or pain in the outer thigh), Celebrex was prescribed and a referral given;
(c)   a further attendance on 22 October 2015 for hip pain, and
(d)   11 November 2015, bilateral shoulder arthroscopy and rotator cuff tear.
The claimant was involved in a motor accident on 28 November 2015. The clam form[16] identifies a previous occupiers liability claim in respect of a back and right hip injury on

11 July 2014 (the fall at Balmoral). The claimant says he was driving straight when a vehicle came out of a side street and collided with his car. He identifies injuries to his neck, right and left arm, back, right and left leg. He says he was not employed and had lost no income.
[16] Page 851 of AD2.
On 19 January 2016 the claimant attended at the Excelsior practice complaining of right hip pain since a fall and work injury the previous year with lower lumbar pain (pain on and off for months). Dr Abdullah of Excelsior completed the medical certificate on 21 January 2016 noting lumbar back pain after a car accident. On 11 February 2016 the claimant attended again for back pain. There were further attendances in March, and on 4 April 2016 the claimant was referred to Dr Suttor for lumbar spine pain. There were further attendances in August of that year for back pain and ongoing depression.
Dr Suttor wrote to Dr Abudllah of Excelsior on 28 April 2016[17] advising the claimant had a sudden onset of lower back pain after the 2015 accident. Dr Suttor has a history of right hip pain in the past. The claimant was said to be currently unemployed. There was good movement in the lumbar spine, gait was normal and there were no neurological symptoms. The CT scan was reviewed as essentially normal with a small bulge at L5/S1.
[17] Page 808 and 924 of AD2.
The Excelsior records continue with the following entries:
(a)   27 February 2017, right internal fixation painful and mildly swollen, thoracic spine pain;
(b)   15 March 2017 a counselling session occurred with Ms Sahagian. The claimant attended feeling depressed due to the physical ailments following the car accident on 28 November 2015. The claimant had back, hand and shoulder pains. There is a reference to previous opioid dependency and issues;
(c)   18 May 2017 – bilateral feet pain, plantar fasciitis and bilateral tenosynovitis. Medication prescribed;
(d)   16 August 2017 – decided to see spinal specialist – a referral to Dr Suttor provided on that day[18] refers to neck pain with radiculopathy, and
(e)   25 September 2017 it was noted spinal specialist denied surgical option.
[18] Page 1028 of AD2.
Dr Suttor saw the claimant on 31 August 2017[19] mainly because of axial neck pain extending to the mid thoracic region. It was said to be significant and exacerbated by manual work.

Dr Suttor reviewed the CT scan and diagnosed axial spinal pain referable to degenerative changes with a “component of C7 radiculopathy present”.
[19] Page 810 of AD2.
The claimant attended the Mount Druitt medical practice (Mount Druitt) on 5 March 2018 where he was said to be a new patient. He attended for “ongoing issue neck pain” and “on and off radiculopathy both upper limbs”.[20] Panadeine Forte was prescribed, and MRI scans were requested.
[20] Their records are at page 289 of AD1.
The last pre-accident attendance at the Excelsior practice was on 3 April 2018, “support letter done – MRI results advised, agreed to do MRI for thoracic spine and lumbar spine ... discussion that he might need epidural injection.” It appears this injection was into the C7 nerve root due to nerve root compression.

Post-accident general practitioner and treatment records

On 6 April 2018, the claimant attended Mount Druitt and there is a comment:
“… know patient with C spine problem”. MVA yesterday, car hit from the side and hit his head on the door. Having neck and thoracic back (worse than before) and headache pins and needles and weakness in left arm are same. Also having right knee pain. More Panadeine Forte.”
There were further attendances at Mount Druitt for other matters and Panadeine Forte was prescribed on nine occasions between 5 March and 24 July 2018. There is no mention of the car accident in these entries and the 24 July 2018 entry refers to ongoing pain in the back and thighs.
The claimant first attended the Excelsior practice after the accident on 29 April 2018 and gave a history of the accident happening at 50 to 60 kmph while he was asleep. He said he hit his head but did not lose consciousness, “he hurt his right knee, as he jumped when it happened.” He said he had been to another clinic with pain in his knee and neck pain. “Now he has neck pain, mid back, thoracic, upper lumbar and right knee pain. Was examined by another GP who advised scanning.” The claimant was given an imaging request for thoracic, lumbar and knee pain and referral to a neurosurgeon.
Dr Don from Mount Druitt provided referrals to Mr Tsapilis on 1 August 2019 (for post-traumatic stress disorder, anxiety and depression) and Dr Sari also on 1 August 2019 (for back and knee pain).[21]
[21] Page 332 of AD2.
The claimant commenced seeing Dr Chauhan and Dr Kirk from the Caritas Medical Centre[22] with a first attendance on 18 September 2019. The claimant was unwell with nasal issues and a cough. He gave a history of a car accident in 2018 with bulging discs in back and neck and right knee chronic issues, post-traumatic stress disorder, anxiety, GORD OSA and other illnesses and conditions.
[22] The notes are at page 1587 of AD2.
The claimant attended in October 2019 for groin abscesses, requesting a Centrelink certificate due to work capacity issues, and he was to discuss a chiropractic consultation regarding his back and knee. Panadeine Forte was prescribed.
On 12 November 2019 the claimant had a flare up of his back pain (mid back and paraspinal area). He had seen the chiropractor the day before and asked for a referral to Dr Kahil, orthopaedic surgeon. Panadeine Forte was prescribed.
Dr Kirk gave a referral to Dr Kahl on 12 November 2019 for chronic back pain and right knee pain. On 19 November 2019 the claimant attended again with back pain on and off. He told Dr Kirk he had previously been addicted to Panadeine Forte.
The claimant attended on 27 November 2019 seeking pain relief. His back pain was worse and felt it was aggravated by the rehabilitation he was doing.
Dr Kirk also wrote a referral[23] to Dr Yu on 27 November 2019 for chronic thoracic and lumbar back pain said to be exacerbated by a car accident in 2018. “Also has significant depression and chronic knee pain”. Dr Yu provided a report dated 6 February 2020[24] noting the claimant had two car accidents and that the 2015 accident resulted in neck pain for which the claimant had seen a neurosurgeon. He has a history of the claimant’s other conditions and that he sees Mr Chow, physiotherapist twice a week, does exercises at home daily and sees his psychologist once a fortnight. Mr Sudan was continuing to run his tree lopping business 8 – 10 hours a week. The claimant was tested and scored extremely severe for depression anxiety and stress. The physical examination revealed “satisfactory” spinal movements and no neurological deficits. Dr Yu resolved to refer the claimant to a one-on-one pain management program and prescribed Endep.
[23] Page 337 of AD2.
[24] Page 1747 of AD2.
A similar referral was written on 28 November 2019 by Dr Kirk to Mr Anish Raj for chronic back pain.[25]
[25] Page 1890 of AD2.
There was a case conference on 28 November 2019 with Dr Kirk, the claimant and three personnel involved in rehabilitation for QBE. The claimant said he had increased pain and was taking a friend’s Endone.
The claimant was referred by Dr Kirk to Mr Chow for physiotherapy on 9 December 2019[26] for “chronic back pain under CTP (condition exacerbated by MVA)”. The report from

Mr Chow is dated 5 June 2020. He has a history of the April 2018 car accident and that the claimant was admitted to hospital and has had neck, back and right knee pain ever since. He also had a history of Mr Sudan seeing a chiropractor before the 2018 car accident due to the 2015 accident. Treatment resulted in a reduction in pain levels in his neck and thoracic spine but he described an exacerbation of his right knee pain whilst shopping.
[26] Page 1895 of AD2.
There was a second case management conference on 19 December 2019 and the claimant reported worsening neck pain with no trigger. A further teleconference occurred on

23 January 2020 and the claimant was saying he did not feel the rehabilitation was useful.
Dr Kirollos from Caritas saw the claimant on 6 March 2020. The claimant was still in pain and resistant to antidepressants and was using cannabis one or twice a week to deal with pain “very costly, advised to stop and consider other legal therapies”.
On 4 May 2020, the claimant attended Dr Kirollos with a painful right knee for the last week and “new pain” which he noticed when going down to pray. It was so bad he had to roll to his left hand side. He reported a previous meniscal injury and that his right knee had been locking but this incident was different. A knee brace, ice and Voltaren was advised. A further attendance on 21 May 2020 also mentioned ongoing pain in right knee and previous injury with right ankle and worsening pain on walking.
A referral to Dr Adie dated 14 July 2020[27] was given for the claimant’s “worsening right knee pain. He has had a previous meniscal tear following an MVA accident 2 years ago”.
[27] Page 1907 in the insurer’s bundle.
On 17 August 2020 the claimant attended Dr Chauhan about abscesses, complaints of swelling and painful hands, “back, neck and shoulder pain really bad, knees are very bad”, imaging was requested. The referral to Professor Ghahreman, neurosurgeon from Dr Chauhan is dated 17 August 2020[28] “for review of his chronic spinal (cervical spine, thoracic spine and lumbar spine) pain since his motor vehicle accident in 2018. The cervical spine MRI demonstrated a disc lesion. He has the old films. I have asked him to repeat his films …”
[28] Page 331 of AD2.
On 3 September 2020 is this entry:
“Involved in another car accident on Tuesday 1/9/2020. Neck and shoulders in a lot of pain. Car hit from behind. He had stopped to reverse park. Car hit him from behind…
Doesn’t want to go through CTP … patient declined wants to discuss with physio first.”
On 15 September 2020 he attended again in a lot of pain two weeks after this third accident. The MRI was reviewed. On 12 October 2020 the claimant again referred to the

1 September 2020 accident in the context of having to go to the police station to report it.

Mr Sudan did not want to see Dr Yu again and was referred to another pain clinic.
A referral to the Pain Management Unit at St George Hospital dated 12 October 2020[29] was given for chronic thoracic, neck and lumbar back pain “exacerbated by MVA in 2018 and more recent MVA in September 2020. MRI shows disc bulge at T8/9. Also has significant depression and chronic knee pain”.
[29] Page 1914 of AD2.
On 9 November 2020 the claimant attended Dr Chauhan again with pain in the left lower back and into his buttocks. He also complained about dizziness. On 24 November 2020 he saw Dr Kirollos about dizziness and headaches and chest pain.
On 24 and 26 November 2020[30] the claimant was referred to a cardiologist after two presentations at hospital with cardiac symptoms. He was said to have high blood pressure and high cholesterol and was smoking up to 60 cigarettes a day.
[30] Page 1919 of AD2.
Dr Adie wrote to Dr Kirollos of Riverwood on 19 November 2020[31] having seen the claimant with a history of a car accident two years earlier. Dr Adie was given a history of symptoms commencing after the accident and that “he noticed his knee was swollen and quite sore and he was limping for some time”. Recently the claimant complained of pain on the medical and lateral aspects of the joint with regular clicking and clunking and episodes of his knee locking. He had pain. Dr Adie wanted to update the MRIs and review the progress of the meniscal tears evident in the previous scans.
[31] Page 1830 of AD2
Dr Adie wrote again on 6 January 2021[32] advising the right MRI showed a complex tear of the lateral meniscus with early degenerative changes. He said, “these would certainly explain his knee symptoms.” The tear was displaced he did not recommend surgery but advised exercise and further review.
[32] Page 1984 of AD2.
The claimant was referred to Multifidus Physiotherapy by Dr Chauhan on 28 June 2021 – for mid and cervical spinal pain, both shoulders (mostly left sided) since his motor accident.
A further referral to the Pain Management unit at St George Hospital was written by

Dr Chauhan on 5 August 2021[33] for “severe chronic spinal region pain for a number of years” which was also called “excruciating pain in mid-section of back”. Mr Sudan was said to want an MRI done. He “describes thoracic and lumbar spinal pain”.
[33] Page 1940 of AD2.
A further referral from Dr Chauhan is dated 28 September 2021[34] and requests specialist input, “for his spinal pain with left upper limb involvement with possible correlation on his C spine MRI demonstrating left C7 nerve root compression”.
[34] Page 1952 of Ad2.
Dr Ghahreman wrote to Dr Chauhan of Caritas on 25 October 2021.[35] He refers to a “significant car accident” six years before resulting in neck pain radiating to the left scapular region which he said stablised. Dr Ghahreman then records the current accident resulted in a “aggravation of neck pain … as well as new thoracic and lower back pain”. There was pain radiating into the left shoulder and left leg with numbness in the left hand and lower limb. He refers to the September 2021 MRIs and refers to disc extrusion at C3/4, herniation at C4/5 on the left and C6/7 extrusion and compression of the C7 nerve root on the left. There was mid thoracic disc extrusion as well. He advised peri-radicular injections at C5 and C7, physiotherapy and core strengthening, pain specialist review and restrictions on lifting.
[35] Page 389 of AD1.
On 25 October 2021, Dr Ghahreman referred the claimant to Dr Nik Parikh, pain physician for “multiple areas of spinal pain and to Dr Clark for C4/5 and C6/7 transforaminal injections”.[36]
[36] Pages 843 and 845 AD2.
The Caritas practice requested the Excelsior practice notes on 16 December 2020.
Hospital notes from Auburn Hospital confirm there have been several attendances for groin abscesses, heart palpitations and abdominal pain.

Radiology

The insurer has obtained records from Medscan Merrylands.[37] In addition to the radiology discussed in detail below the records include:
(a)   an ultrasound left shoulder was requested on 8 May 2013 after sudden pain playing Austag – it was a difficult examination due to a limited range of movement and there appeared to be an acute full thickness tear in the supraspinatus and tendinosis with possible tearing in the subscapularis;
(b)   abdominal ultrasound in June 2014 showing a mild fatty liver;
(c)   on 20 June 2014 a dental orthopantomogram (OPG), and a
(d)   a kidney ultrasound was done on 1 October 2014 due to blood in the urine and a soft tissue injury to the right loin three months earlier.
[37] Page 269 of AD2.

Cervical spine

A CT scan of the claimant’s cervical spine was done on 1 August 2017. The clinical history was said to be “back pain”. There were degenerative findings at C3/4, C4/5 and C6/7 with the C6/7 changes causing “severe foraminal stenosis with radicular compression”.
An MRI of the cervical spine dated 28 March 2018[38] includes the following clinical details, “ongoing issue neck pain …on and off radiculopathy”. The scan demonstrated a left paracentral and lateral recess disc extrusion abutting and deviating the left part of the spinal cord and C7 nerve roots posteriorly. There was also bilateral foraminal compromise at C3/4.
[38] Page 303 of AD3 and page 1957 of AD2.
An MRI of the cervical spine dated 17 August 2020[39] showed mild degenerative changes at C3/4, C4/5 and C6/7 causing mild impression on the anterior CSF sleeve. No significant neural foraminal narrowing or nerve root compression.
[39] Page 1940 of AD3.
An MRI of the cervical spine was addressed to Dr Chauhan of Caritas on

15 September 2021[40] with a complaint of left cervical radiculopathy noted. The finding was “multilevel mild-to-moderate degenerative disc disease particularly at C6-7 where there is a disc osteophyte complex with left sided foraminal stenosis and possible irritation of left C7 nerve root”.
[40] Three copies are provided at page 1972, 1973 and 1974 of AD2.
Another MRI was undertaken on 25 May 2022 at the request of Dr Abdullah from South Granville. The history was of neck pain with radiculopathy. The scan showed a mild diffuse bulge at C3/4, C5/6 bulge and small protrusion and C6/7disc bulge. The summary was of degenerative changes seen in the cervical spine with significant changes at C6/7 and milder changes at C5/6.
A CT scan of the brain was done on the same day. The only finding were possible signs of intracranial hypertension.

Thoracic and lumbar spine

A lumbar spine X-ray was undertaken on 29 July 2014 at the request of Dr Dagher[41] which revealed no abnormality.
[41] Page 821 of AD2.
A CT scan of the lumbosacral spine was done on 5 February 2016[42] and it showed mild broad-based disc herniation at L3/4 and a left sided foraminal disc protrusion at L5/S1.
[42] The report is dated 8 February 2016 and is found at page 266 of AD2.

A CT scan of the thoracic spine was done on 1 August 2017 due to a complaint of back pain where it was observed there was a “minor posterior disc osteophyte complex at T8/9 causing mild thecal sac indentation with no foraminal narrowing”.
An MRI of the thoracic and lumbar spine from 24 September 2018[43] found no acute fracture or ligamentous injury. It did suggest a T8/9 right sided disc protrusion but with no spinal compromise. In the lumbar spine there was no fracture, disc prolapse or neural compromise. Degenerative changes were seen at C6/7.
[43] Page 1956 of AD2
An MRI of the thoracic and lumbar spine dated 8 September 2021 to Dr Chauhan[44] for pain “mid-section of back” showed disc protrusion at T8/9, T9/10 and T10/11 with minor indentation of the anterior thecal sac but no evidence of impact on the neural foraminas.
[44] Page 1975 of AD2.

Right Knee

An MRI of the right knee on 24 September 2018[45] found no fracture or bony contusion and reported that the cruciate and collateral ligaments were intact. There were findings “suggestive of a prior meniscectomy …[and] a small meniscal fragment”.
[45] Page 37 and 68 of AD1.
An X-ray of the right knee was taken 2 June 2020[46] showing no acute fracture and an X-ray of the right ankle was taken and compared with a previous X-ray from 21 March 2017. The fracture was united but there were other features including an effusion at the anterior recess of the right ankle joint.
[46] A11 page 51 of AD1.
An MRI of the right knee on 16 December 2020 was done[47] due to “query meniscal injury, chondral problem” and was directed to Associate Professor Sam Adie. The report finds horizontal and radial tears of the anterior horn and body of the lateral meniscus. There was an intact medical meniscus and mild lateral osteo arthritis.
[47] The report is dated 18 December 2020 at page 1964 of AD2 and page 386 of Ad1.

Medico-legal reports - claimant

Dr Bodel examined the claimant on 19 February 2020.[48] He has a history of injury to the neck, both shoulders, interscapular region of the thoracic spine, lower back and right knee.
[48] Page 355 of A1 and page 320 of AD2.
Dr Bodel has a consistent history of the accident and the claimant complaining of hitting his head and seeing his general practitioner (GP) a few days later with multiple complaints.
Dr Bodel had a history of the claimant’s previous shoulder surgeries and that the claimant had neck and back injuries following an earlier car accident and that the claim had settled on the day of the current accident.
On examination the claimant had tenderness and guarding at the base of his neck with guarding. There appeared to be dysmetria. There was slight restriction of shoulder motion.
Thoracic spine movements were symmetrical and there was no restriction of back movement.
There was painful retro-patella crepitus in the right knee. Both right and left had similar restrictions.
Dr Bodel diagnosed a soft tissue aggravation of pre-existing degenerative change in the cervical spine, soft tissue injury to the thoracic spine and lower back and rotator cuff pathology in both shoulders and a blow to the front of the right knee.
Dr Bodel says:
“This gentleman has no history of any pre-existing permanent impairment which was symptomatic at the time of the injury. He has had clearance of previous pathology as identified in the literature that I have received.”
He assessed impairment at 20% as follows:
(a)   cervicothoracic DRE category II = 5%;
(b)   thoracolumbar DRE category I – 0%;
(c)   lumbosacral DRE category I - 0%;
(d)   right shoulder 8%;
(e)   left shoulder 10%, and
(f)    right knee 2%.

Medico-legal reports - insurer

Dr Machart examined the claimant on 12 August 2020.[49] The claimant reported hitting his head and feeling pain in his knee after the accident then found it difficult to walk and experienced pain all over. He went home and saw his GP the next day.
[49] His report is dated1 September 2020 and is found at page 366 of A1.
He reported having X-rays and that an MRI was recommending but fundings was not provided for it. He saw a chiropractor and a psychologist.
The claimant said he had just got back to work before the car accident and that he was off work for two months after the accident.
The claimant acknowledged previous left and right shoulder surgery and a car accident four or five years previously with neck pain.
On examination of the neck there was no guarding or spasm and slightly asymmetrical range of motion but no neurological signs. In the thoraco-lumbar spine there was guarding but no spasm and all movements were reduced by half. There were no neurological signs in the lower limbs.
There was full movement of the right knee and no patellofemoral crepitus.
In the shoulders there was a full range of motion in all movement except internal rotation which was limited to 40 degrees in both.
Dr Machart diagnosed an aggravation of pre-existing cervical spondylosis, a new thoracolumbar injury, no damage to the lumbar spine or shoulders and pian in the trapezius muscles and a right knee meniscal tear.
The claimant was assessed at 11% being DRE category II (5%) for the neck and thoracic spine, 1% for the right knee and 0% for the lumbar spine and shoulders.
Dr Tandon, psychiatrist provided a report to QBE dated 7 February 2020. He has the history of the claimant seeing a GP Dr Don, then Dr Majeed and thirdly Dr Kirk. He noted while the claimant presented with mainly physical symptoms, he was also displaying depressive and anxious symptoms.
Dr Tandon discussed the claimant with his GP, Dr Kirk. She had seen the claimant 20 times complaining of lower back and right knee pain and that he had previous problems in these areas and that he has exacerbated previous mental health issues.
Dr Tandon and Dr Kirk discussed a treatment regime including medication and referral to a pain specialist.

Previous accident

Dr Peter Giblin provided a report to the claimant’s solicitor on 29 June 2016[50] for the purposes of the 2015 motor vehicle accident.
[50] Page 1014 of AD2.
Dr Giblin has a history of the accident and the claimant having seen his GP, having five session of physiotherapy and taking anti-inflammatory tablets, Panadeine Forte, Endone and Panadol. The claimant complained of a constant ache in his lower back with a feeling of weakness in his back and legs.
Dr Giblin diagnosed a soft tissue injury to the lower back consistent with the changes at L5/S1 seen in the radiology. Dr Giblin considered him permanently unfit for heavy work and did not rule out a need for surgery in the future.
The claimant was assessed having a 5% WPI for the lumbar spine only.
Dr Simone Ryan, occupational physician found no rateable impairment. In her report dated 31 July 2017,[51] the claimant was said to report low back pain (although the pain from the accident in the lower back had resolved) which was long standing. His most significant pain was in the mid-back which he indicated was in the lower thoracic spine and which sometimes radiated up to the shoulders and into the neck. Her examination of his spine was normal other than some lower thoracic spine tenderness. She diagnosed a chronic muscular sprain of the lower thoracic spine.
[51] Page 1021 of AD2.

Other assessments

Medical Assessor Home determined on 11 December 2018 that the claimant’s physical injuries were minor injuries.[52]
[52] Page 39 of AD1.
Medical Assessor Home has a history of a fall (said to be at home) in 2014, a car accident in 2015 and the claimant recalled he had neck symptoms before the accident which had been investigated. Medical Assessor Home also had a history from the claimant that lumbar and thoracic back scans had been requested before the accident but had not been done until after the accident.
The claimant told Medical Assessor Home he had previously had a tree lopping business but had not worked since the 2015 accident.
The claimant reported to Medical Assessor Home early symptoms of aggravated pre-existing neck and lower and mid back pain and ongoing pain in the right knee.
Mr Sudan complained of neck, thoracic and back pain, right knee pain with a feeling of locking, catching and crepitus.
On examination there was some dysmetria and guarding in the neck. There were minor restrictions in motion of both shoulders.
Neurologically both upper and lower limbs were normal and there were therefore no signs of radiculopathy.
Medical Assessor Home found the cervical spine injury was a soft tissue “minor” injury. He found the left shoulder was also a soft tissue “minor” injury on a background of pre-existing rotator cuff repair pathology. The lumbar spine was also diagnosed as a soft tissue and therefore “minor” injury. He found no evidence of a specific and local traumatic rupture of meniscus or cartilage in the knee and therefore the right knee was also a minor injury.
On 19 July 2019 a medical review panel comprising Medical Assessors Lahz, Rosenthal and Moloney considered the Medical Assessor Home’s assessment. They examined the claimant and found:
(a)   no evidence of injury to either shoulder (and both shoulders had a full range of motion);
(b)   no injury to the right arm, left arm and right leg (other than the knee);
(c)   no evidence of radiculopathy in any region of the spine;
(d)   the MRI findings in the right knee were degenerative and not traumatic and therefore the knee injury was soft tissue and a minor injury;
(e)   the left sided C6-7 disc extrusion was a pre-accident finding and the claimant’s neck injury was a soft tissue and minor injury;
(f)    the thoracic spine T8-9 disc protrusion was not caused by the accident and the thoracic spine injury was a soft tissue and minor injury, and
(g)   there was no lower limb radiculopathy and no rupture of any ligament or cartilage or tendons and the lower back injury was therefore a soft tissue minor injury.
All of the claimant’s physical injuries were therefore found to be minor now threshold injuries.
Medical Assessor Sharon Reutens found the claimant had an exacerbation of a persistent depressive disorder which she found to be a non-minor injury in her assessment of

12 June 2019.
The insurer lodged an application for the inclusion of a late document in the current proceedings. The document in question is certificate from Medical Assessor Samuell in relation to the claimant’s WPI arising from a psychological injury. As the document is a medical assessment certificate relevant to the overall issue of whether the claimant has an entitlement to non-economic loss and as both parties have this document, the Panel has accepted it into evidence.
The claimant reported to Medical Assessor Samuell that he had a tree lopping business but had not worked for eight months and was now receiving Centrelink benefits. The claimant admitted drinking an amount of alcoholic spirits per day, smoking 50 – 80 cigarettes per day and using cannabis. The claimant also revealed a pre-accident history of anxiety and depression stemming from his earlier accident and a previous criminal history. The claimant recounted his relationships and children and his previous claims (the wharf fall and the 2015 car accident).
The claimant told Medical Assessor Samuell about his physical injuries from the current accident and said he had nightmare that later went away and that he was seeing a psychologist at the time of the accident. The claimant reported panic attacks which began three or so years before the assessment. Mr Sudan described the panic attacks and said he attended the Emergency Department every week or fortnight as a result. The claimant reported attempts at his own life twice in the last two years.
Medical Assessor Samuell said, “there is no currently diagnosable psychiatric condition arising from the subject accident.” He thought there was no connection between the accident and the panic disorder and stated there were similar symptoms arising from both accidents. As a result of his findings, Medical Assessor Samuell did not assess impairment.

RE-EXAMINATION FINDINGS

Mr Sudan attended the Commission’s Medical Suites for a re-examination on

13 September 2023 with Medical Assessor Oates on behalf of the Panel.
He was assessed unaccompanied.
Because of the significant issue of causation, it was impressed upon Mr Sudan the importance of a comprehensive history.

History from the claimant

Pre-accident medical history and relevant personal details

Mr Sudan said that about 10 years ago, he started a lawn mowing business adding tree stump removal and then tree lopping, all under the same ABN.
In 2015, he said hurt his right hip when he was fishing. The Panel notes this would appear to be the 2014 Balmoral wharf fall. He said he enjoyed squid fishing, which is physically intensive. He injured the nerve at the upper outer right thigh (lateral cutaneous nerve) and would experience pins and needles down the outer proximal right thigh periodically. He had no actual hip joint pain. He was treated conservatively.
He then said he had a motor vehicle accident in 2016, which was an off-centre T-bone collision, writing off his vehicle. The Panel notes this would appear to be the November 2015 car accident. He developed neck pain which radiated to the adjacent interscapular area of the upper thoracic spine and which worsened over the ensuing years.
After the neck injury, he stopped work for a few months and then returned to light duties and then began building up the business again. He would see a chiropractor monthly following the injury of 2016 to re-align his neck. He did not recover from this injury.
He has had arthroscopic rotator cuff repair surgery to both shoulders. The right side was done about 12 or 13 years ago after another fishing accident and the left one was done about seven or eight years ago after a sporting injury. Surgery was successful in both cases but there was a very long recovery time of physical rehabilitation after each surgery.
He has had intermittent low back pain in the past, being treated with physiotherapy and chiropractic sessions. He thought this was from when he injured his right hip/ lateral femoral cutaneous nerve. He said when he gets panic attacks, his low back locks up on him.
He had a lumbar spine scan about a year ago which was normal. He was also supposed to have a thoracic spine scan, as ordered by his neurosurgeon, and this was done afterwards.
He said that the lumbar spine condition was pre-existing, whereas following the accident of

4 April 2018, he had middle back pain, that is mid to lower thoracic spine pain, which was a new condition.
He has had anxiety and depression at various times before the accident.
At the time of the accident, he was smoking a packet of cigarettes a day but when he is anxious, he smokes 40-60 per day. He started drinking a couple of months ago to help his low mood and pain. He would go fishing, play sport and go the gym several days a week.
At the time of the accident, he was with a partner with whom he had three children. He met his new partner after the previous relationship broke down and has had one further child to her, but they have since separated. He then moved in with his parents.
He separated in December 2022. He has recently been granted a Housing Commission flat which is up one flight of steps. He has to take it, as he has turned down two previous offers and otherwise, he will go to the bottom of the list. He was avoiding taking a flat up too many stairs, as he sometimes has trouble with his right knee on stairs.
In summary, Mr Sudan says he had neck pain radiating to the shoulders, right hip pain, lateral thigh paraesthesia, and intermittent low back pain before the accident and he attended a chiropractor for maintenance treatment.
He continued in his work as a tree lopper but used contractors to do work which he was not able to manage on account of the above conditions.

History of the motor accident

Mr Sudan said on 4 April 2018, in the daytime, he was a front seat passenger with a seatbelt on in a Lexus sedan driven by his sister. He was asleep at the time of the accident, turned on his left side, with the seat half reclined, so does not know exactly what happened.
The file indicates the vehicle was hit on the driver’s side at the rear and he woke up with a fright and banged his head on the left side of the door, and then had an “anxiety attack”. In his panic, he pushed himself upwards forcibly with his right foot and hit his knee. He jumped up and self-extricated through the passenger door after five or ten minutes. When he had recovered from the dizziness as he was in shock.
Police and ambulance attended. His blood pressure was high according to the ambulance records. He thinks on reflection the paramedics might have helped him out of the car, but he cannot really remember. The car was still driveable, and his sister drove him home. He declined the offer of going to the hospital, he just wanted to go home and have a sleep.
At the time of the accident, he just had right knee pain. He already had neck pain on and off from the previous accident.
He went home, had a sleep, and then felt more neck pain and a new pain in the intrascapular area in the middle of the back. He also felt low back pain which he had had before. He denied any new lumbar spinal pain.
He attended the GP and had an MRI scan of the upper back. He thinks he went about a day after the accident, complaining of interscapular pain, but this was part of his pre-existing neck injury, and he cannot remember if he first developed the middle back pain (thoracic) on the same day or within a few days of the date of accident. He cannot remember any other painful areas. He says he has a bad memory and the psychologist told him this is to do with his mood disorder.
He saw a psychologist up to several months for one year before the motor accident but then saw a psychologist again after the current accident. He has anxiety, mood disorder and pain, and he gets nightmares about the motor vehicle accident and has tried to commit suicide a few times. He gets instant anxiety when he hears a car revving up, sees an accident or even sees a near miss when he is driving.
He saw a GP at the local medical centre at Mount Druitt the day after the accident or shortly after the accident and had scans.
Before the accident, Mr Sudan had been consulting the chiropractor, Dr Tarek Sari at Greenacre, for his pre-existing neck and interscapular pain and shoulder pain, with treatment mainly for the neck. The Panel notes that before the accident the claimant attended Dr Ken McAviney for chiropractic treatment and that Dr Sari’s records do not reveal any pre-accident consultations with the first treatment being provided in August 2018.
After the current accident, the claimant said Dr Sari worked on the neck, back and right knee which were sore. Pain worsened rather than improved. The insurer arranged sessions in a park with a personal trainer. He continued to have neck pain, thoracic pain and right knee pain and intermittent low back pain.
He was referred to a neurosurgeon, Professor Ghahreman, in 2021. Mr Sudan was complaining of neck pain, thoracic pain, right knee pain. The doctor told him to stop chiropractic treatment as it was dangerous. He was advised to have physiotherapy instead. He was told his neck did not need surgery, but his back does need surgery, but he should hold off on surgery on the back for at least 10 years. Mr Sudan said that Dr Ghahreman advised him to attend a pain clinic and to get out of the tree lopping business and change to lighter work. He could not afford a pain clinic privately, so he attended the St George Hospital program. The Panel notes that the report of Dr Ghahreman dated 25 October 2021 does not mention surgery to either the back or the neck although periradicular injections into C5 and C7 were advised. The Panel does not have before it any further reports from Dr Ghahreman.
Mr Sudan said he was referred to Dr Adie, orthopaedic surgeon, Kogarah, regarding his right knee. He was told he needed surgery to shave meniscal tears which were present, but he declined to have surgery, so a cortisone injection was recommended, and he declined this as well. He continued physiotherapy with the knee, but it did not really help.

He was also getting cortisone injections regularly in the left shoulder from a nurse in the practice of Dr Nameer GP, monthly which he was told was to help his neck pain. His subsequent GP, Dr Khauhauk, told him to stop such frequent cortisone injections, as they were dangerous, and should not have been being administered by a nurse and that they would not help neck pain. Mr Sudan said he did not have any left shoulder pain.
The claimant said he had three cortisone injections to his neck at C5 and C7 and one level was repeated but he does not know which one. He did not notice any benefit. The neck pain has been getting worse over time. The last injection was 7 August 2023. These were ordered by Dr Ghahreman. He advised him not to have any cortisone injections to the back.
He then saw Dr Yu, pain specialist from Hurstville, who recommended a multi-disciplinary pain management program which he declined because he said it was a waste of money, as he was already going to a physical therapist and a psychologist.
In the meantime, he continued chiropractic treatment and attendance at the psychologist.

Dr Yu put him on Amitriptyline and Palexia SR. He developed problems with the Palexia losing its effect and causing him to take greater and greater doses until he stopped it cold.
In the period since the accident, he has had fairly frequent visits to hospital every few months because of severe neck pain, panic attacks with chest pain, and he thought the was having a heart attack, and sometimes with thoracic or low back pain. They would give him analgesic injection or at other times oral medications, and he had been admitted for observation for a couple of days on some occasions. He gets the feeling the hospital staff are sick of him.

Details of any relevant injuries or conditions sustained since the motor accident

He had a further motor vehicle accident in 2021 when he stopped to reverse park and a following car ran into the back of him. Mr Sudan said it was a fairly minor accident but he had an exacerbation of his neck pain.
He said the neck pain flared up for a couple of weeks and then returned to its usual state. He has had no other subsequent accident or relevant condition develop.

Current symptoms

Mr Sudan is right hand dominant.
He says his main problem is neck pain radiating to the right upper trapezius and also radiating to the left pectoral area, left scapula and left trapezius and left latissimus dorsi. He gets pins and needles in the left hand if he holds his hand above head height too long, but it settles slowly when he puts his hand down again. Neck pain also radiates to the right upper trapezius.
He cannot tilt his head back to drain drink from a cup now because his neck hurts in this position. He has no problem in either shoulder joint. He gets daily muscle spasm in the left pectoral area and the muscles jumps. People notice it and they think he is flexing his muscles, and this embarrasses him.
When his right knee is painful, it is the most annoying pain. When it flares up, he cannot get it into a comfortable position. This knee problem is less bothersome than before because he is less active now. It used to flare-up with prolonged standing and walking, particularly when he was fishing, as the type of fishing he likes entails frequent jiggling of the fishing rod.
He has middle back pain around the lower thoracic area which flares up with sitting, but not after physical exertion. He gets burning and tingling in the middle back if he leans forward when he is sitting or at other times when he is standing up.
He goes fishing much less than before, as he is not as well motivated now because of his mood disorder and he knows he will be in pain afterwards, and this puts him off.
He lived at home with his parents, and they looked after the place. He can manage personal care OK but has to modify how he does things, such as putting his left arm down to slide his arm into shirts, and he struggles to get his shoes and socks on and off, and he stopped mowing lawns. He does not play football or go to the gym or do any other physical pastimes now. He has five children to three partners; the eldest a son aged 15 whom he does not see very often and girls aged eight, seven, three and two to two other partners.
After the accident, he stopped work for a few months and then returned to the tree lopping business but at a much lower level, doing anywhere between one and four jobs per month. He gets sub-contractors whom he supervises to do the physical work up the trees for him, however he ceased work altogether six or eight months ago because of problems with his mood, not just his physical injury. The mood problems were interfering with his sleep and consequently he sleeps in late in the day. Nowadays, he does not reply to job offers for his business received by text.

Current treatment

He had been seeing GP’s originally Dr Nameer and then Dr Majeed at Guildford. Dr Majeed left four years ago and he went back to Dr Nameer who meanwhile moved to South Granville. He also sees Dr Khauhan at Riverwood. He uses a heat pack, a massage ball and rubs cream on his neck.
He last saw Dr Ghahreman six weeks ago when he recommended surgery on the neck to decompress the nerve in view of the tingling in the left hand, but he is not keen on having it.
He takes Panadeine Forte most days but increases the dose during the flare-up of pain. He also takes Endone during a flare-up about once or twice a month. He was on Palexia for two years but it lost its effect and he was getting addicted, so the GP advised him to slowly cut it back but he decided to quit ‘cold turkey’ and he spent three weeks in bed having withdrawals.
He attends a physiotherapist when he can afford it. The benefit lasts less than half an hour.
He has erectile difficulty and finds it is hard to climax now. He cannot hold his urine and has to run to the toilet when he needs to go. He was taking THC oil up until a couple of years ago for the chronic pain before the accident, and also smoking cannabis over a couple of months, up until one month ago.
He recently started seeing a new psychologist because he could not afford to pay the $50 gap for the ten visits he is entitled to per year. The new psychologist does not charge a gap.

Clinical examination

General presentation

He was of solid build with height 176cm and weight 95.3kg.
He sat in no visible discomfort but had difficulty getting up off the chair and he had to sit to put shoes and socks on and off, leaning down to reach them rather than lifting the foot up towards him.
He walked without a limp and said that he has a walking stick at home which he used to ease off the pressure on the right knee or back when they were painful, but he is now too embarrassed to use it. People looked at him all the time.

Thoracic and lumbar spine

Lumbar lordosis was preserved. His range of motion was:
(a)   flexion two-thirds of normal;
(b)   extension two-thirds of normal with complaint of right lower thoracic pain;
(c)   lateral flexion two-thirds of normal bilaterally, and
(d)   rotation full to the right and two-thirds to the left with complaint of right thoracic pain but no lumbar or sacral pain.
His lower limb reflexes were present and symmetrical, plantar responses both flexor. Power and sensation in the lower limbs normal. Straight leg raising was to 70 degrees with complaint of calf tightness but negative nerve stretch test.
The thigh girth was 48cm on both the right and the left. His leg girth was right 37.5cm and left 38cm at 14cm below the inferior patellar pole.
There was right thoracic paraspinal guarding. There was also tenderness in this area. There was no lumbar tenderness or guarding.

Cervical spine

There was normal contour of the cervical spine. Neck movements were:
(a)   flexion and extension two-thirds of normal;
(b)   lateral flexion to the right two-thirds and to the left one-half with complaint of pain down the left arm on left lateral flexion, and
(c)   rotation to the right two-thirds and to the left one half.
There was a positive left nerve stretch test with symptoms into the left arm with a C6 distribution. There was no guarding but tenderness in the upper cervical spine centrally. All upper limb reflexes were present and symmetrical. Power was normal in the upper limbs. Sensation was partially increased to pin prick and light touch left thumb and into radial forearm towards the elbow. The upper arm girth was 32cm in the right and in the left, 33cm. Forearm girth was 29.5cm in the right and 29cm in the left.

Right and left shoulders

There was no tenderness in the shoulders and impingement test was negative.

Shoulder Movements

(in degrees)

Active range of motion Measured RIGHT

Active range of motion Measured LEFT

Flexion

180

180

Extension

50

50

Adduction

40

40

Abduction

180

170

Internal Rotation

90

80

External Rotation

90

70

Right and left knees

In the claimant’s right knee, the range of motion was 0-120 degrees of flexion as was the left knee. This is a normal range of motion.
Both knee joints were stable in anteroposterior and mediolateral planes. There was a single crack of mild crepitus on compression of the right patella against the knee joint with a complaint of pain. There was no left patellofemoral crepitus or complaints of pain.

Comments on consistency

Mr Sudan presented in a consistent manner, although he did admit to memory difficulties which Medical Assessor Oates noted made history taking challenging.

Investigations

He brought discs to the assessment which contained the following imaging:
(a)   8 September 2021 - MRI thoracic and lumbar spine (included in the evidence review at paragraph 109);
(b)   MRI head and cervical spine dated 25 May 2022. The history provided was of radiculopathy greater than 16 years (which suggests from 2006). The scan revealed degenerative changes with the most significant changes at C6/7 and milder changes at C5/6, and
(c)   whole spine MRI dated 25 June 2023 – the clinical history was said to be “ongoing left-sided cervical radiculopathy with pectoral twitching. Right subcostal pain.” The result was “mild spondylitic change” with several small disc lesions but no neural compression. The previous findings of C5/6, C6/7 and T8/9 were present.
Medical Assessor Oates viewed the images and advised the Panel he agreed with the radiologist’s reports.

ASSESSMENT - WHAT INJURIES DID THE CLAIMANT SUSTAIN IN THE ACCIDENT?

Reliability of the claimant’s evidence

The claimant has had a complicated history involving a slip and fall accident at Balmoral (2014), a previous car accident (2015) and previous surgeries to his left and right shoulder. The claimant conceded he had a poor memory and Medical Assessor Oates remarked that history taking was challenging.
The Panel has noted, in the history taken by Medical Assessor Oates, some of the inconsistencies which confirm for the Panel, the claimant’s poor memory.
The Panel has therefore determined that it will look to the medical reports and records for confirmation of Mr Sudan’s claims and complaints.

What is the significance of the 2021 car accident?

The Panel is satisfied that the 2021 motor vehicle accident resulted in a minor aggravation of the claimant’s neck injury. There is a mention of it in the GP records, but the claimant does not appear to have made ongoing complaints and he has made no claim in respect of it.

Did the claimant injure his left or right shoulder?

The claim form alleged injuries to the right and left arm and the right and left shoulder.
There is no indication in the medical records of any frank or direct injury to the right or left shoulder and this is acknowledged by the claimant. The Panel notes for example

Dr Majeed’s medical certificate (attached to the claim form) and dated 29 April 2018 does not mention either arm or either shoulder. In the light of the claimant’s extensive pre-accident history (including two surgeries) the Panel is of the view that if there was any increase in symptoms to the shoulder area this would reflect an aggravation of pre-existing shoulder conditions.
However, the medical members of the Panel are of the view that what has occurred is that any increase in shoulder symptoms is due to symptoms of, and referred pain from,

Mr Sudan’s neck condition. The Panel will therefore include a WPI assessment in accordance with the Nguyen principle.

Did the claimant injure his right knee in the accident?

Based on the claimant’s history and the contemporaneous notes, the Panel is satisfied that the claimant injured his right knee in the accident as he moved upwards or when he was extricating himself from the vehicle. He told Medical Assessor Oates he banged his knee. The ambulance report documents complaints of right knee pain at the scene, and the claim form and medical certificate include right knee pain in the list of injuries and symptoms.
The William Street notes include complaints of knee pain in February 2013 but there do not appear to be any allied health records or radiology suggesting any major knee issues at that time. The Panel notes the MRI of 24 September 2018 suggests there may be evidence of a prior meniscectomy but the Panel has no records about any previous injury.
It is the clinical judgment of the medical members of the Panel that the claimant sustained a soft tissue injury to the right knee with aggravation of pre-existing, but at the time of the accident, asymptomatic degenerative (and primarily meniscal) changes.

What injuries did the claimant sustain to his spine?

Cervical spine

The Panel is satisfied the claimant sustained a soft tissue injury to his cervical spine with aggravation of pre-existing symptomatic cervical spine degenerative condition, based on the history given at the re-examination and the evidence on file. The Panel notes 6 April 2018 attendance at Mount Druitt and the contemporaneous complaint of neck pain. The claim form and Dr Majeed’s 29 April 2018 medical certificate also include a record of neck injury.
The claimant conceded the neck injury sustained in the 2015 accident was still symptomatic at the time of his 2018 accident. Radiology from August 2017 and from March 2018 (the week before the accident) demonstrate similar findings to those found in scans done after the accident. The Panel notes the clinical history for the pre-accident imaging studies were of complaints of cervical radiculopathy.
The nature then of the injury sustained in the car accident was a soft tissue injury to the cervical spine aggravating the pre-existing and symptomatic neck condition.

Thoracic spine

The Panel is also satisfied Mr Sudan sustained a thoracic spine soft tissue injury, based on the history given to Medical Assessor Oates and the contemporaneous evidence. The Mount Druitt entry of 6 April 2018 refers to thoracic back pain. The claim form and medical certificate of Dr Majeed also refer to thoracic back pain.
The claimant described this as “new” pain to both Mount Druitt and Medical Assessor Oates. The Panel notes pre-accident complaints of thoracic pain in radiology of the thoracic spine in August 2017, Dr Suttor’s report of 31 August 2017, records of Dr McAviney in November 2017 and the 3 April 2018 attendance at Excelsior where thoracic and lumbar spine MRIs were requested by the GP (although not done until after the accident).
In the light of the WPI assessment, the Panel does not propose to further consider the issue of causation of any thoracic spine injury. It is likely the thoracic spine injury was also an exacerbation of a pre-existing condition.

Lumbar spine

The claimant denied any new lower back pain telling Medical Assessor Oates that after the accident he felt the same lower back pain that he had before. The Mount Druitt entry of

6 April 2018, two days after the accident does not record lower back pain. The Excelsior practice note of 29 April 2018 however mentions upper lumbar spine. The claim form mentions simply “back” and does not distinguish between upper or lower, thoracic or lumbar. Dr Majeed’s medical certificate refers to “lumbar spine pain”.
The Panel notes the lengthy history of lumbar spine pain stemming from what appears to be the injury at the Balmoral wharf compounded by the motor accident in November 2015. Pre-accident radiology shows disc herniations or protrusions at L3/4 and L5/S1. The Panel notes that the claimant’s 2015 lumbar spine injury was assessed by Dr Giblin in June 2016 as causing a 5% impairment and continuing symptoms. In July 2017, Dr Ryan found few symptoms and 0% impairment. The day before the accident, the claimant was discussing with his doctor the MRI results of his cervical spine and she referred to requests for lumbar and thoracic scans. The Medical Assessors are of the view that the lumbar and thoracic scans would not have been requested without clinical findings to support the need for those scans and therefore that the claimant must have, at that time, been experiencing symptoms in his lower back.
While the Panel is of the view the claimant could have sustained a soft tissue injury to his lower back in the accident which temporarily aggravated or exacerbated his pre-existing lumbar spine condition, the Panel accepts the claimant’s evidence that he had no new lower back pain in the accident suggesting that he did not in fact sustained a lower back injury. Whatever symptoms the claimant is currently experiencing, and any associated impairment are due to the underlying pre-accident condition.

ASSESSMENT – WHAT IS THE PERMANENT IMPAIRMENT RESULTING FROM THE INJURIES SUSTAINED IN THE ACCIDENT?

Spinal impairment

Assessment of the spine required consideration of Chapter 3 of AMA 4 Guides. Only the diagnostic related estimate method of assessment is allowed (cl 6.111).
The spine is divided (cl 6.131) into three regions:
(a)   cervicothoracic;
(b)   thoracolumbar, and
(c)   lumbosacral.
If injury to the spine is alleged in more than one region, each of the regions is assessed and the percentage impairments combined to obtain a total spinal impairment (6.119).
There are five diagnostic related categories and a number of indicia provided (see Table 7) to assist in determining the most appropriate category. The first is DRE category I which is selected if there are symptoms which includes pain. In the circumstances of this claim DRE categories II and III are relevant.
An assessment of DRE category II requires there to be in a particular region:
(a)   pain with guarding or
(b)   non-uniform range of motion – dysmetria or
(c)   non-verifiable radicular complaints defined in table 6.8 as:
(i)symptoms (shooting pain, burning sensation, tingling)
(ii)which follow the distribution of a specific nerve root but no objective clinical findings such as loss or diminished sensation, loss or diminished power or loss or diminished reflexes.
An assessment of DRE category III requires radiculopathy to be found in a particular region which is defined in cl 6.138 as follows:
“Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination …
(a) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 8 in these Guidelines)
(b) positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 8 in these Guidelines)
(c) muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 8 in these Guidelines)
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
If any impairment to the claimant’s shoulders results from an injury to the neck, then, in accordance with the decision of the Court in Nguyen v Motor Accidents Authority of New South Wales and Anor[53] that impairment must be assessed, and its value included in the determination of the claimant’s total WPI[54].
[53] [2011] NSWSC 351.
[54] This is referred to as the “Nguyen Principle”.

Cervical spine

In the cervical spine, there were radicular complaints in a left sided C6 nerve root distribution including radiating pain and dysmetria of lateral flexion and rotation, placing Mr Sudan in DRE Cervicothoracic category II giving 5% WPI.
There were no signs of radiculopathy on examination and therefore Mr Sudan does not qualify for DRE category III.
Clause 6.31 provides for pre-existing impairments and says:
“If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value.”
Mr Sudan conceded that he had symptoms in his neck before the car accident and this is confirmed by the records. Mr Sudan’s long running neck complaint was associated with referred symptoms to the upper limbs, which indicates the presence, before the accident of non-verifiable radicular complaints.[55] Had Mr Sudan been assessed immediately before the 2018 car accident, it is the Panel’s view that his permanent impairment at that time would have been 5% on the basis of a DRE category II assessment.
[55] And the radiology request in the week before the accident refers to “radiculopathy”.
As the pre-existing impairment (5%) must be deducted from the current impairment (5%), this results in a net 0% WPI from the cervical spine attributable to the injury sustained in the current accident.

Thoracic spine

There was dysmetria of active motion of the thoracic spine found on examination placing

Mr Sudan in DRE Thoracolumbar category II which translates to a WPI of 5%.
There was no evidence of thoracic radiculopathy to justify placement in a higher DRE category.
While there is evidence of a previous thoracic condition, there was no indication or any evidence of a symptomatic permanent impairment and therefore the claimant’s accident related injury to his thoracic spine must be assessed as resulting in a 5% WPI.

Lower limb impairment and right knee

The assessment of lower extremity impairment is governed by Chapter 3, section 3.2 of the AMA 4 Guides. There are 13 methods of assessment provided for as follows:
(a)   limb length discrepancy (3.2a);
(b)   gait derangement (3.2b);
(c)   muscle atrophy (3.2c);
(d)   manual muscle-testing (3.2d);
(e)   range of motion (3.3e);
(f)    joint ankylosis (3.2f);
(g)   arthritis (3.2g);
(h)   amputations (3.2h);
(i)    diagnosis-based estimates (3.2i);
(j)    skin loss (3.2j);
(k)   peripheral nerve injuries (3.2.k);
(l)    causalgia and reflex sympathetic dystrophy (3.2l), and
(m)     vascular disorder (3.2m).
Each limb is assessed and each injury (if there are multiple injuries in each limb) is assessed separately. Clause 6.70 and table 6.5 states which of the above methods can and cannot be combined and table 6.6 provides guidance is selecting the most appropriate method. The Guidelines at cls 6.76 to 6.110 provides specific interpretation and guidance on the various methods of assessment.
At the right knee, there was discomfort complained of on patellofemoral compression with a single crack of crepitus palpable.
The Medical Assessors are of the view that the appropriate method of assessment is 3.2g, arthritis. Using the footnote to table 62 on page 83 of AMA 4 Guides, the claimant has a history of direct trauma to the right knee in the accident, a complaint of patellofemoral pain and crepitation on physical examination by Medical Assessor Oates but without evidence of joint space narrowing. This attracts a WPI of 2%.

Left and right shoulders

The assessment of upper extremity impairment (UEI) is governed by Chapter 3, section 3.1 of the AMA 4 Guides. The upper extremity is divided into four regions one of which is the shoulder. There are several methods of assessment permitted:
(a)   amputation (part 3.1b);
(b)   sensory loss of the digits (part 3.1c);
(c)   abnormal range of motion (part 3.1d);
(d)   peripheral nerve disorders (part 3.1k);
(e)   vascular disorders (part 3.1l), and
(f)    other disorders (part 3.1m)
In Mr Sudan’s case, the Panel’s view is that the most appropriate method of assessing shoulder impairment is in accordance with part 3.1d. The abnormal range of motion requires the measurement of three functional units of motion:
(a)   flexion and extension;
(b)   abduction and adduction, and
(c)   internal and external rotation
Measurement of motion is done using a goniometer and only active motion (not passive) is measured. Each of the six UEI figures is added to get a total UEI percentage impairment which is then converted to a WPI in accordance with table 3 on page 20 of the AMA 4 Guides.
Mr Sudan’s active range of motion (ROM) was measured three times with a goniometer, and the relevant upper extremity impairment (UEI) is reproduced below. While the claimant has minor deficits in some of the movements, figures 38, 41 and 44 provide no impairment percentage for those restrictions.

Shoulder Movement	Normal	ROM RIGHT	UEI	ROM LEFT	UEI
Flexion	180	180	0%	180	0%
Extension	50	50	0%	50	0%
Adduction	50	40	0%	40	0%
Abduction	180	180	0%	170	0%
Internal Rotation	90	90	0%	80	0%
External Rotation	90	90	0%	70	0%

The claimant’s left and right shoulder impairment resulting from the claimant’s neck injury is therefore assessed at 0%.

WHAT TREATMENT SHOULD BE ALLOWED?

There is a medical dispute between the claimant and the insurer concerning:
(a) two sessions of physiotherapy, and
(b) an initial consultation with Dr Ghahreman.
Neither party has made any submissions in respect of this dispute during the course of this review. The Panel does have before it the submissions filed in the original application.[56]
[56] Page 378 of the claimant’s bundle and page 9 of the insurer’s bundle.
While the insurer has provided copies of two internal review determinations none of them relate to physiotherapy. The claimant has not made clear in his submissions what areas of the body are or were to be treated and there are no invoices or accounts or requests for allied health treatment before the Panel.
It is therefore unclear to the Panel precisely what two sessions of physiotherapy is in dispute and with which provider and for what injuries.
The Panel is not therefore satisfied that the physiotherapy treatment is related to the accident or is reasonable and necessary in the circumstances. The Panel does make the observation, in the interests of encouraging settlement and the avoidance of any further disputation that if the physiotherapy related to the claimant’s neck or knee injury, in the light of his ongoing symptomatology at the time the dispute was referred for assessment, the Panel would be inclined to allow it.
The dispute concerning the referral to Dr Ghahreman stems from a referral dated

17 August 2020[57] the terms of which concern cervical and thoracic spine pain. The dispute was referred to the Commission in November 2020 on the basis of treatment to be provided. However it appears that the claimant has been to Dr Ghahreman and the dispute is about treatment that has been provided namely the consultation that is the subject of

Dr Ghahreman’s report dated 25 October 2021.[58]
[57] Page 53 of AD2.
[58] Page 389 of AD2.
The Panel has made findings that the claimant had pre-existing and symptomatic cervical, thoracic and lumbar spine conditions before the car accident and that Mr Sudan has exacerbated or aggravated those conditions. It is the Panel’s view that this consultation is related to the injuries sustained by the accident that is the exacerbation/aggravation of previous cervical spinal conditions and the investigation of what the doctor was told was “new” thoracic and lumbar spine pain.
It is the Panel’s view that the first consultation with Dr Ghahreman was reasonable and necessary in the circumstances in order to investigate the claimant’s whole of spine condition and advise as to treatment. The Panel is of the view this treatment should be allowed.

CONCLUSION

The claimant’s whole person impairment is:
(a)   Cervical spine        5% less 5%               0%
(b)   Thoracic spine       5%  5%
(c)   Lumbar spine        no injury and therefore no impairment
(d)   Right knee  2%
(e)   Right shoulder  0%
(f)    Left shoulder  0%
The combined total of the claimant’s impairments is 7%.
While the Panel has come to the same conclusion as Medical Assessor Wijetunga in respect of WPI, that is that the claimant has a whole person impairment of not greater than 10%, the Panel has come to a different conclusion as to the total, 7% and not 10%. As Medical Assessor Wijetunga included her finding of 10% WPI in her certificate, the Panel must therefore revoke her certificate in respect of WPI and issue a fresh certificate.
The Panel has come to the same conclusion as Medical Assessor Wijetunga in relation to the consultation with Dr Ghahreman and therefore her certification of that dispute is confirmed. The Panel has come to a different conclusion in respect of the physiotherapy dispute and it follows that her certification of that dispute is revoked.
Finally, the Panel notes Medical Assessor Wijetunga has addressed a dispute about whether or not the disputed treatment will improve the recovery of Mr Sudan. The Panel notes such a dispute arises under s 3.28(3) which is only relevant where there is a finding that the claimant’s only injuries are threshold (previously minor) injuries. As Mr Sudan has been certified (by Medical Assessor Reutens) as having a non-threshold psychological injury he is entitled to all reasonable and necessary, causally related treatment for his physical and psychological injuries and does not need to satisfy the “improve recovery” provision of s 3.28.

Shoulder Movements (in degrees)	Active range of motion Measured RIGHT	Active range of motion Measured LEFT
Flexion	180	180
Extension	50	50
Adduction	40	40
Abduction	180	170
Internal Rotation	90	80
External Rotation	90	70

[2023] NSWPICMP 548

1 November 2023