Tabassum v Allianz Australia Insurance Limited
[2025] NSWPICMP 317
•7 May 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Tabassum v Allianz Australia Insurance Limited [2025] NSWPICMP 317 |
CLAIMANT: | Tahiti Tabassum |
INSURER: | Allianz Australia Insurance Ltd |
REVIEW PANEL | |
PRINCIPAL MEMBER: | John Harris |
MEDICAL ASSESSOR: | Mohammed Assem |
MEDICAL ASSESSOR: | Shane Moloney |
DATE OF DECISION: | 7 May 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); motor accident; pedestrian claimant struck by vehicle; whether the degree of permanent impairment of the physical injuries was greater than 10%; inconsistency in accordance with clause 6.41 of the Motor Accident Guidelines; shoulder movement assessed by analogy based on mild loss of gleno-humeral joint; Held – claimant suffers from impairment not greater than 10%; MAC revoked and new certificate issued due to different assessments. |
DETERMINATIONS MADE: | Medical Assessment – Permanent Impairment Certificate WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER S 7.23(1) OF THE MOTOR ACCIDENT INJURIES ACT 2017 IS AS FOLLOWS: 1. The Panel revokes the medical assessment certificate dated 19 November 2024 and certifies that the degree of permanent impairment that has resulted from the following injuries caused by the motor accident is assessed at 6%: · left shoulder; · left hip; · cervical spine, and · lumbar spine. |
REASONS
BACKGROUND
Ms Tabassum (the claimant) was injured in a motor accident on 29 November 2021. The claimant was walking across a pedestrian crossing when she was struck by the insured vehicle sustaining injuries.[1]
[1] Insurer’s bundle, p 5.
Allianz Australia Insurance Ltd (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay to Ms Tabassum any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act).
The issue in this medical dispute is whether Ms Tabassum’s “degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%”. This constitutes a medical dispute within the meaning of the MAI Act.[2]
[2] See Division 7.5 and Schedule 2, cl 2 of the MAI Act.
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[3]
[3] Clause 6.2 of the Guidelines.
This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor McGrath (Medical Assessor) and dated 19 November 2024 (the medical assessment certificate).
THE REVIEW
The application for referral of a medical assessment to a Review Panel (Panel) was made by the claimant within 28 days after the parties were issued with the original certificate for which the review is sought.[4]
[4] Section 7.26(10) of the MAI Act.
The President referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[5]
[5] Section 7.26(5) of the MAI Act; claimant’s bundle, page 303.
Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F(2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Personal Injury Commission (Commission).
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Merit Reviewer or a Medical Assessor.[6]
[6] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[7]
[7] Rule 128 of the PIC Rules.
STATUTORY PROVISIONS
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAI Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act.[8] In Raina v CIC Allianz Insurance Ltd[9] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[8] See s 3B(2) of the Civil Liability Act 2002.
[9] [2021] NSWSC 13 (Raina) at [65].
Further, cls 6.5 to 6.7 of the Guidelines refer to causation of both injury and whether the degree of permanent impairment is caused by injury.
Clause 6.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable in 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 the sole cause as long as it is a contributing cause, which is more than negligible.”
ASSESSMENT UNDER REVIEW
The Medical Assessor noted the body parts referred for assessment were the left leg, left shoulder and hand, cervical spine and lower back.
The Medical Assessor noted symptoms in the left arm that did not conform to a dermatomal distribution, normal neurological examination of the upper limbs, asymmetrical movement in the lumbar spine with a normal lower limb neurological examination and disturbance into the left leg which do not conform to any dermatomal distribution.
Examination of the shoulders showed an almost normal range of motion with no clinical signs in the elbows, wrists and hands. There was mild loss of left hip abduction with discomfort and pain in the buttock region.
The Medical Assessor assessed the level of whole person impairment at 8% comprising 5% for the lumbar spine, 1% for the left upper extremity (shoulder) and 2% for the left hip.
MATERIAL BEFORE THE REVIEW PANEL
The parties filed bundle of documents for the Panel’s consideration.
Pre-existing conditions
There are no relevant pre-accident symptoms.
Medical records post-accident
The hospital notes refer to admission following a motor vehicle accident where the car was travelling at 60kmph with a principal diagnosis of left lateral thigh abrasion and left elbow abrasion. CT scans of the brain, facial bones, abdomen, cervical spine showed no abnormality or fractures.[10]
[10] Insurer’s bundle, p 61.
X-rays of the left hip, femur and shoulder showed no fractures.[11]
[11] Insurer’s bundle, pp 93-94.
The claimant consulted her general practitioner (GP) on 1 December 2021 with complaints of left sided headache and left shoulder pain with limited range of motion and multiple bruises on the left thigh and hip.[12] A certificate of capacity dated 1 December 2021 noted headache, left leg pain and left shoulder pain.[13]
[12] Insurer’s bundle, p 136.
[13] Insurer’s bundle, p 298.
The claim form dated 7 December 2021 referred to the motor accident causing injuries to the left hand, leg, headaches, bruises, abrasions, and blood clots.[14]
[14] Insurer’s bundle, p 5.
On 14 December 2021 the GP noted ongoing headaches, left shoulder and leg pain relieved by oxycodone.[15] Similar complaints were made to the GP on 21 December 2021.[16]
[15] Insurer’s bundle, p 135.
[16] Insurer’s bundle, p 133.
An Allied health recovery request for physiotherapy dated 14 December 2021 noted severe cervical, left shoulder, lower back, left hip and leg pain following the motor accident.[17] These injuries were repeated in further requests for physiotherapy treatment dated 15 March 2022[18] and 28 June 2022.[19]
[17] Insurer’s bundle, p 248.
[18] Insurer’s bundle, p 253.
[19] Insurer’s bundle, p 258.
An ultrasound of the left hip dated 24 December 2021 showed a probable haematoma with otherwise normal findings.[20]
[20] Insurer’s bundle, p 14.
The MRI of the brain and cervical spine dated 1 April 2022 showed no abnormal pathology in the brain, osteophytic spurring and foraminal stenosis at C3/4 and a broad-based protrusion with annual fissure compressing the spinal cord without signal change at C5/6.[21]
[21] Insurer’s bundle, p 12.
An ultrasound of the left hip dated 2 December 2022 showed a resolving haematoma loss plus induration of the subcutaneous fat of the mid left thigh with mild trochanteric bursitis.[22]
[22] Insurer’s bundle, p 15.
In December 2022 Mr Cooke, physiotherapist commenced further treatment for ongoing chronic left-sided upper trap, shoulder, lower back and left gluteal and leg pain.[23]
[23] Insurer’s bundle, p 55.
In a referral dated 26 April 2023 the GP noted the claimant was suffering from ongoing neck pain radiating to the left hand with numbness and tingling.[24]
[24] Claimant’s bundle, p 114.
In July 2023 Ms Richmond noted left-sided cervical spine and shoulder pain radiating into the left hand and pain in the left buttock with radicular pain in the left L5 dermatome.[25]
[25] Insurer’s bundle, p 24.
In August 2023 Dr Abraszko noted constant neck pain radiating to the left side of the body with normal power tone reflexes and sensation. An updated MRI scan of the cervical spine was requested.[26]
[26] Insurer’s bundle, p 16.
In December 2023 Dr Abraszko noted that nerve conduction studies of the left median ulnar and radial nerves were normal with ongoing complaints of numbness and pain in the left hand and left leg.[27]
[27] Insurer’s bundle, p 50.
The MRI of the cervical spine dated 10 May 2024 showed an annular tear and central disc protrusion at C5/6.[28]
[28] Claimant’s bundle, p 44.
Claimant’s statement
The claimant provided a statement dated 3 July 2023 noting that she had no underlying health conditions prior to the motor accident.[29]
[29] Claimant’s bundle, p 5.
The claimant stated that she was walking across a pedestrian crossing when the insured vehicle struck her travelling at approximately 70kmph sustaining injuries to the left side, specifically the neck, left shoulder, left arm and left leg.
The claimant stated that she experienced constant pain in the left side of the head, neck and left hand and describe various psychological symptoms arising from the motor accident.
Police report
The police report confirmed the claimant’s account of the motor accident.[30]
[30] Claimant’s bundle, p 13.
Qualified opinions
Dr Richa Rastogi, psychiatrist, was qualified by the claimant and provided a report dated
25 August 2023.[31] Dr Rastogi opined that the motor accident caused post-traumatic stress disorder with anxiety.[31] Claimant’s bundle, p 14.
Dr James Bodel, orthopaedic surgeon, was qualified by the claimant and provided a report dated 7 September 2024.[32] The doctor noted that the X-rays taken at hospital showed no fractures.
[32] Claimant’s bundle, p 35.
Dr Bodel opined that the claimant suffered a soft tissue injury to the neck, rotator cuff injury to the left shoulder, soft tissue injury to lower back as well psychological sequelae. The doctor assessed whole person impairment of left upper extremity at 8%, cervical spine at 5% and the lumbar spine at 5%.
We note that the opinion of Dr Robin Mitchell, referenced in submissions, was not in the bundles provided to the Panel.
SUBMISSIONS
Claimant’s submissions
These submissions were filed seeking leave to review the medical assessment.
The claimant submitted there was no reference in the medical assessment certificate to the assessment of impairment of the left leg.
The claimant otherwise submitted that the Medical Assessor failed to give adequate reasons why the injury to the left hand had resolved.
Insurer’s letter dated 13 July 2023[33]
[33] Insurer’s bundle, p 9.
This letter was in response to the claimant’s request for the insurer to concede that the threshold for permanent impairment had been met. The insurer noted that the motor accident caused soft tissue injuries to the lumbar spine, left shoulder and left knee but did not concede that the claimant’s impairment resulting from injuries exceeded the threshold.
Insurer’s submissions dated 16 January 2025[34]
[34] Insurer’s bundle, p 1.
These submissions were filed opposing leave to review the medical assessment and disputed that the medical assessment was incorrect in a material respect.
The insurer submitted that the allegation of left leg injury was limited to an assertion of radicular pain and/or soft tissue injury.
The insurer submitted that the issue of lower extremity radiculopathy was relevant to an assessment of the lumbar spine. The Medical Assessor found no radiculopathy and no non-verifiable radicular complaints.
The insurer also submitted that the Medical Assessor assessed the left leg and provided an assessment of lower extremity impairment. Accordingly, it submitted that the claimant’s submission on this ground lacked any evidential foundation.
With respect to the alleged left-hand injury, the insurer noted that the symptoms in the left hand did not conform to a dermatomal district distribution and otherwise found no clinical signs on examination of the elbow, wrist and hands.
RE-EXAMINATION
Ms Tabassum was examined by Medical Assessor Moloney on 23 April 2025. The examination report is as follows:
“Mrs Tabassum attended the medical suites at PIC on 23 April 2025. She was unaccompanied.
Pre-accident history
Mrs Tabassum stated that she was in good health prior to the accident and had been working full-time as a dental assistant. She is married and lives with her husband and now has a one-year-old daughter. She migrated from Bangladesh in 2018. There were no previous injuries to those assessed today. She has recently completed a Masters in Public Health.
History of motor accident
Mrs Tabassum was a pedestrian and hit by a car at speed. She stated that the collision was on her left side of the body causing her to fall onto the right side on the road. The ambulance and police attended the scene of the accident, and she was taken to Liverpool Hospital for assessment where x-rays and CT scans were done.
History of symptoms and treatment since the accident
At Liverpool Hospital, abrasions were noted to the left lateral thigh, and left elbow but x-rays reported no fractures of the left hip, femur and left shoulder. After a one-day admission she was discharged and followed up by her treating GP 2 days later, who prescribed analgesics and recommended one month of rest. She was later referred to physiotherapy and rehab.
Mrs Tabassum returned to work but attended the hospital again with vomiting and faintness. She also transferred GP as their address relocated. There were follow-up consultations with a psychologist.
The physiotherapist treated her left shoulder, left upper leg and low back. The treating GP referred her to a neurosurgeon, Dr Abrazho who organised an MRI, and ultrasound of the left hand and nerve conduction studies of the upper limbs by Dr Griffith. She consulted a pain specialist Dr Richmond who noted cervical spine and left shoulder pain radiating into the left hand and low back pain with pain in the left buttock. Nerve conduction studies of the left median and radial nerves were normal. Dr Richmond has been treating her in a pain management group in 2024.
More recently, Mrs Tabassum has consulted a neurologist, Dr Abdul Manun on 31 March 2025 who requested a left occipital nerve block and then the right occipital nerve block which has not been approved for treatment yet.
Mrs Tabassum states that there had been no further injuries sustained since the accident.
Current symptoms
Mrs Tabassum has left-sided neck pain but occasionally on the right which is variable in intensity she states that the left hand gets cold and stiff occasionally with discomfort in the left shoulder, but the right arm and shoulder are asymptomatic. There is lumbar pain centrally and laterally in the left which increases with bending or carrying her daughter. She gets relief from wearing a lumbar brace whenever she is mobile.
There is pain and numbness in the left leg but the right leg is asymptomatic.
Mrs Tabassum is a non-driver and walks 10 minutes at a time. She continues to work as a dental assistant for 8 hours 4 times a week and catches the train and bus to work.Present treatment
Present medication is gabapentin one at night, Celebrex 200 mg a day, amitriptyline 50 mg at night, Panadeine Forte one at night, Panadol 2 tabs 3 times a day and medication for hypertension.
She states that physiotherapy was helping but funding ceased 2 months ago. She consults her GP when necessary and has a consultation arranged with her new neurologist Dr Manum in July for follow-up and possibly Dr Richmond, the pain specialist.
Clinical examination
Mrs Tabassum walked into the rooms with a normal gait and sat comfortably during the interview. She stated she is right-handed. The height was measured at 158 cm and weight of 78 kg. Mrs Tabassum was wearing a lumbar brace which she says has been utilised long-term.
Cervical spine
On testing range of movement, flexion/ extension to 50% of expected range and side bending and rotation were 60% of expected range bilaterally with no asymmetry. On palpation there was tenderness bilaterally in the suboccipital region and she is very sensitive to touch in the left trapezius muscle and lateral left neck, but no guarding or spasm was noted.
On neurological examination of the upper limbs, reflexes were equal and brisk bilaterally with normal power and a global decrease in sensation in the left arm to light touch which was not in a dermatomal pattern. No muscle wasting was apparent with circumferences the upper arms 28 cm bilaterally (10 cm above the olecranon process) and in the upper forearm 24 cm bilaterally (5 cm below the olecranon process).
There was a normal range of movement of the elbows, wrist and hands with no muscle wasting noted on examination on testing at the hands.
Lumbar spine
Mrs Tabassum walked with a normal gait but was unable to walk on heels and toes due to unsteadiness. On testing range of movement, flexion/extension was 50% of expected range and side bending was 70% of expected range bilaterally with no asymmetry. On palpation there was tenderness globally over the lumbar musculature, but no guarding or spasm was noted. Straight leg raise when lying was 80° on the right and 60° on the left which was limited by pain in the left thigh and calf. Sciatic nerve root tension signs were negative. There was a full range of movement of the knees.
On neurological examination of the lower limbs, reflexes were equal bilaterally with normal power and no sensory changes were noted. No muscle wasting was apparent with the circumferences of the lower thighs 44 cm bilaterally (10 cm above the superior patella pole) and at the maximum circumference of the calves 36 cm bilaterally.
Hips
Hip Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
120°
100°
Extension
0°
0°
Adduction
20°
10°= 2 % WPI
Abduction
30°
20° = 2 % WPI
Internal Rotation
30°
20°
External Rotation
40°
20° = 2 % WPI
Shoulders
On inspection of the shoulders, no muscle wasting was apparent and on passive movement there was a normal range of movement of the right shoulder but pain on any passive movement greater than 90° abduction of the left. On palpation there was a global complaint of pain to light touch of the left shoulder with no referral of pain from the cervical spine. Active movements were measured using a goniometer and repeated 3 times.
Shoulder Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
170°
90°
Extension
40°
20°
Adduction
40°
20°
Abduction
170°
90°
Internal Rotation
80°
70°
External Rotation
90°
60°
I noted that there had been a significant decrease in range of movement of the left shoulder in the last 6 months. Mrs Tabassum stated that in this time physiotherapy had been ceased which increased pain in the left shoulder region. I explained to her that due to this recent deterioration in range of movement it was not possible to determine impairment by this method and another method would be needed to be used. She stated that she understood this reasoning.”
FINDINGS
The review is by way of new assessment of all matters with which the medical assessment is concerned.[35] The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[36]
[35] Section 7.26(6) of the MAI Act.
[36] Section 7.26(6) of the Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[37] and Insurance Australia Ltd v Marsh.[38]
[37] [2021] NSWCA 287 at [40], [41] and [45].
[38] [2022] NSWCA 31 at [11], [21], [64].
The Panel adopts the examination report provided by the Medical Assessor supplemented by the following further reasons.
The nature of the motor accident is clearly consistent with the applicant suffering injury when struck by the insured vehicle and falling to the ground.
On admission to Liverpool Hospital a CT scan of the cervical spine was undertaken. The nature of the motor accident is clearly consistent with, and Panel accepts that there has been a soft tissue injury to the cervical spine in the subject accident.
This signs and symptoms on examination before Medical Assessor Moloney show a classification DRE category l which is 0% WPI. This is because there was no dysmetria on testing range of movement, no guarding on palpation and no signs of radiculopathy or non-verifiable radicular complaints conformed to a dermatomal pattern in the upper limbs. The global decrease in sensation was not dermatomal. There were no signs of radiculopathy.
The Panel accepts that Mrs Tabassum sustained a soft injury to her lumbar spine with the impact of the collision. She landed heavily on the left hip with haematoma formation but no fractures. This has a classification DRE category l which is 0% WPI on the recent examination because there was a symmetrical reduction in range of movement of the lumbar spine which is not dysmetria. There was no guarding or spasm on palpation of the lumbar musculature and no signs of radiculopathy or non-verifiable radicular complaints. There was a global feeling of numbness and occasional pain in the left leg which was not dermatomal. Sensation was normal on clinical testing.
At Liverpool Hospital an abrasion to the left lateral hip was noted with a negative X-ray. The Panel considers that this injury was caused by the subject accident. The left hip is assessed by range of movement which is 2% WPI using table 41 of AMA 4. There were no signs of trochanteric bursitis at the time of the recent examination.
The Panel accepts that there has been an injury to the left hip but no injury to the left knee or ankle. On examination, apart from slight loss of range of movement of the left hip there was a normal range of movement of the left knee and ankle with no muscle wasting and no sensory changes noted on testing.
There is no documented injury to the left hand sustained in the motor accident.
Mrs Tabassum stated that her left hand and arm gets cold at times but on examination no abnormality was noted, and nerve conduction studies were negative. There was no evidence of a carpal tunnel syndrome. Considering the absence of pathology in the left hand, the absence of explanation of how the left hand was injured in the motor accident and the clinical examination by Medical Assessor Moloney, there is no assessable impairment of the left hand.Mrs Tabassum complained to her GP two days after the accident that she had left shoulder pain which was recorded in the certificate of capacity. The Panel accepts that Mrs Tabassum sustained a soft tissue injury to the left shoulder in the subject accident when she was struck by the vehicle and fell to the ground. This condition was also treated by a physiotherapist.
There has been a significant decrease in range of movement this year in comparison to the previous documentation by Medical Assessor McGrath. Mrs Tabassum states that due to increased pain in the last six months she has had significant loss of range of movement and attributed this to cessation of physiotherapy.
Medical Assessor McGrath assessed loss of range at 1% impairment of the left shoulder. In October 2023 the physiotherapist recorded “shoulder active range is full with pain at end range”.[39] Medical Assessor Moloney on behalf of the Panel found an 8% impairment due to loss of active movement at the recent examination.
[39] Claimant’s bundle, p 439.
In these circumstances, the gross change in loss of motion over the last six months is not medically explicable despite the cessation of physiotherapy. There is inconsistency of the left shoulder movement as found by Medical Assessor Moloney within the meaning of cl 6.41 of the Guidelines.
The Panel is required to modify the impairment estimate in accordance with cl 6.40 of the Guidelines in light of this finding of inconsistency. The left shoulder is assessed by analogy by using the gleno-humeral (shoulder) joint in Table 18 of AMA 4 which is 36% permanent impairment for complete loss. Applying Table 19 of AMA 4 this is mild crepitus which is 10% of joint impairment. Accordingly, providing a beneficial analogy in favour of the claimant, we assess left shoulder impairment at 3.6% rounded up to 4% permanent impairment.
There are no relevant pre-existing physical symptoms and no objective evidence of impairment at the time of the motor accident. There is no basis to make any deduction for pre-existing impairment.
We are satisfied that the impairment is permanent within the meaning of cls 6.19 and 6.20 of the Guidelines because the condition is well stabilised, the claimant does not require further surgery and treatment in the foreseeable future. The suggestion of proposed treatment by Dr Manun will have no impact on potential assessable impairment as it is designed to relieve occipital pain.
The Medical Assessor’s clinical examination of the claimant and the Panel’s view is that there is unlikely to be a change of greater than 3% impairment over the next year.
CONCLUSION AND ORDERS
The Panel concludes that the degree of permanent impairment of the claimant that has resulted from the injuries caused by the motor accident is 6%. A new certificate is attached at the commencement of these Reasons.
Westmead Children’s Hospital
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