Taouk v QBE Insurance (Australia) Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Taouk v QBE Insurance (Australia) Limited [2025] NSWPICMP 154
CLAIMANT:	Mansour Taouk
INSURER:	QBE (Insurance) Australia Limited
REVIEW PANEL
MEMBER:	Terence O’Riain
MEDICAL ASSESSOR:	Michael Couch
MEDICAL ASSESSOR:	Drew Dixon
DATE OF DECISION:	12 March 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; permanent impairment; review; insurer’s application; Medical Assessor’s (MA) certificate dated 9 May 2024 assessed cervical-thoracic spine at 5% permanent impairment; accident 3 December 2020; MA declined causative link with accident and referred neck pain causing impaired bilateral shoulder active range of movement (AROM); claimant applied for review; claimant re-examined; causation; application of Nguyen v The Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd (Nguyen) principle disputed; claimant made consistent best effort to demonstrate AROM; consistent with previous examinations; accident significant intervention; no objective evidence of pre-accident permanent impairment; 11% permanent impairment; combined impairment certificate; Held – secondary restriction of AROM in the shoulders due to the cervicothoracic spine injury; Nguyen principle applied; different causation and permanent impairment findings to original assessment; Review Panel revoked and replaced original medical certificate and combined impairment certificate; permanent impairment greater than 10%.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Review Panel assessment of degree of permanent impairment Replacement certificates issued under s 7.26(7) of the Motor Accident Injuries Act 2017 1. The Review Panel has assessed that the accident caused injuries with a different degree of permanent impairment to Medical Assessor Wallace's assessment and certificate issued on 9 May 2024. 2. Accordingly, the Review Panel revokes the earlier certificate and issues a new Permanent Impairment Certificate assessing the claimant’s permanent impairment that has resulted from the injuries caused by the accident as 11%. 3. Medical Assessor Adrian Vertoudakis’ certificate dated 17 May 2024 found the claimant’s referred dental injuries were not related to the subject accident. Accordingly, this Review Panel revokes Lead Medical Assessor Wallace’s combined assessment certificate dated 2 July 2024 and issues a replacement combined assessment certificate under s 7.26 (8) of the Motor Accident Injuries Act 2017 stating the combined permanent impairment that has resulted from the injuries caused by the accident were 11% which is greater than 10%.

REASONS

BACKGROUND

On 3 December 2020, the claimant Mr Mansour Taouk was driving his Ford Ranger utility on Gale Street Concord. He was wearing his seat belt. While he was stationary waiting to park, a car collided with the rear of his vehicle.
An ambulance attended the accident scene but the claimant did not go to hospital with the ambulance, but he presented soon after at Canterbury Hospital where he remained under observation.
The claimant underwent a spinal CT examination, and the attending doctor consulted the neurological registrar at Royal Prince Alfred Hospital (RPAH) before he was discharged with analgesia. He was treated with physiotherapy until early 2022.
QBE is the relevant insurer with liability for the injury under the Motor Accident Injuries Act 2017 (MAI Act).
Disputes arose between the parties relating to the claimant's permanent impairment resulting from injuries sustained in the accident. The insurer denied there was a causal link between the accident and the claimant’s physical conditions. These disputes were referred to the Personal Injury Commission (Commission) to resolve.
The Commission referred the following injuries for assessment on the question of permanent impairment to Medical Assessor Wallace:
·        cervical spine – disc injury with radiculopathy into the shoulders;
·        thoracic spine – disc injury with radiculopathy;
·        lumbar spine – disc injury with radiculopathy into the right leg;
·        right shoulder – rotator cuff injury/referred pain from the cervical spine, and
·        left shoulder – rotator cuff injury/referred pain from the cervical spine.

Medical Assessor Wallace assessed the claimant and determined in a medical assessment certificate dated 9 May 2024 that the accident caused injuries that gave rise to a permanent impairment of 5%, which is not greater than 10% as required by s 4.11 of the MAI Act regarding a claimant's entitlement to non-economic loss damages.
The Medical Assessor found the accident caused the cervical and lumbar spine injuries and assessed 5% permanent impairment for the cervical spine using the American Medical Association's Guides to the Evaluation of Permanent Impairment (fourth edition) (AMA 4 Guides) Diagnostic Related Estimate II (DRE).
The claimant also referred dental injuries to the Commission to assess whether permanent impairment arose from that condition. Medical Assessor Adrian Vertoudakis certified on

17 May 2024 that the claimant’s dental condition was not caused by the accident.
A combined certificate dated 2 July 2024 found that the injuries separately assessed, combined produced permanent impairment of 5%.
The claimant applied under s 7.26 of the MAI Act to refer Medical Assessor Wallace's certificate to a review panel on the basis that the medical assessment was incorrect in a material respect.
The Commission's Presidential delegate referred the medical assessment to a Review Panel (this Panel) on 9 May 2024.

STATUTORY PROVISIONS

The statutory provisions, relevant case law on causation and the applicable Motor Accident Permanent Impairment Guidelines (Guidelines) are set out at Appendix A.

Assessment under Review

Medical Assessor Wallace certified that the accident caused cervical spine and lumbar spine injuries because the Canterbury Hospital discharge referral, subsequent general practitioner (GP) reports and neurosurgeon Dr Brennan’s report dated 15 June 2021 objectively supported Mr Taouk injuring his cervical spine and lumbar spine as a result of the accident.
He determined that there was no objective medical evidence supporting a nexus between the accident and any injuries at his bilateral shoulders, bilateral hands, thoracic spine, or right leg.
The Medical Assessor recorded that Mr Taouk did not complain of any current symptoms at his bilateral shoulders, bilateral hands, thoracic spine, or right leg.
He assessed 5% permanent impairment for the cervical-thoracic spine at DRE category II.

Matters considered and decided by the Review Panel

The Panel met on 21 August 2024 to discuss how this matter may proceed.
The Panel considered re-examining the claimant was required. Medical Assessor Couch agreed to examine the claimant on the Panel’s behalf on 24 September 2024 and draft a report.
The Panel considered the parties’ submissions, in particular in the claimant’s submissions to the Presidential delegate that while the original Medical Assessor had correctly assessed the cervical spine, there was sufficient objective evidence to overturn the Medical Assessor’s finding that there was no support for a nexus between the accident and the claimant’s bilateral shoulder conditions:
(a)    the claimant referred to injuring the right and left shoulder in his Personal Injury Claim Form dated 21 January 2021;
(b)    the Canterbury Hospital discharge referral, for 3 December 2020 indicated that he had tenderness in the left shoulder, and
(c)    Dr Dryson’s report dated 5 December 2023 recorded:
“There is asymmetric loss of range of motion in both shoulders. No radiological investigations have been carried out in relation to the shoulders and the pathology causing impairment there is not known. Nevertheless, it is likely that reduced range of movement is due to referred pain from the cervical spine, and as such is assessable.”
This last submission is based on the principle in Nguyen.[1]
[1] Nguyen v The Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd [2011] NSWSC 351.
The original Medical Assessor found restrictions in the active range of movement (AROM), which would have supported permanent impairment findings if the Medical Assessor had considered the objective evidence and Nguyen.
There was an absence of evidence of any other reason for the claimant’s bilateral shoulder condition, and the claimant submitted it was the result of speculation to discount the probability of a nexus with the accident.[2]
[2] Insurance Australia Limited trading as NRMA Insurance v Brown [2019] NSWSC 1236.
The claimant also submitted that the original Medical Assessor could have assessed DRE category II resulting in 5% permanent impairment in the lumbar spine if the Medical Assessor had carefully considered the claimant’s history since the accident as well as his own findings.
The insurer provided detailed submissions addressing a nexus between the claimant’s work history as a plumber and any impairment he was experiencing. The insurer submits that the Panel must consider causation of the current complaints or determine whether there was pre-existing symptomatic impairment to deduct from the current impairment.
It also refuted that Nguyen could apply because of a lack of initial complaints and objective evidence. The insurer’s submissions are noted in more detail at Appendix B.

REVIEW PANEL FINDINGS

Documentation

The Panel considered the documentation in the parties’ bundles being Taouk - Compiled Bundle of Documents (Review Panel Directions) from the insurer and MANSOUR TAOUK Claimant's Paginated Bundle of Documents - Review Panel Directions.

Re-examination

Mr Taouk was re-examined over a period of one hour at the Commission’s medical suites on 24 September 2024. He attended early and was alone. Medical Assessor Couch commenced by clarifying the role of the Review Panel and this re-examination. The following history was obtained directly from Mr Taouk – where any documentation has been referred to this is clearly stated.

Pre-accident medical history and relevant personal details

Mr Taouk said that he grew up initially in Marrickville and his family moved to Canterbury when he was aged 5 years. He completed Year 12 at school and then completed a plumbing apprenticeship – he had always worked in this trade. He had operated his own plumbing company since 2008. Before the accident in December 2020, he had specialised in high value residential units, doing new plumbing installation. He said that because of injuries sustained in the motor vehicle accident, he is now mostly doing much lighter work. He said that this was mostly maintenance, particularly for strata management.
Mr Taouk said that he had never been married and is currently single. Before the accident he was living alone in a unit in Canterbury. He said that he had also previously been renovating an investment property in Hurlstone Park – he still owns this, and it is tenanted. Since the accident he had moved back with his mother in Canterbury.
Mr Taouk recalled that at the age of 21, while he was working, a heavy pipe had fallen off the back of a truck, damaging some teeth. He had also fallen over onto his left side and sustained a left ulnar nerve injury which had required surgery – he described a full recovery from this.
He was specifically asked about any history of neck, back or shoulder injuries or symptoms and he denied these.
He said that before the accident he was busy at work doing big projects. He had five or six employees and used up to 60 subcontractors on jobs at times. He described his duties as a combination of management and working as a plumber “on the tools.” He said that he had a business partner who did most of the management work. Mr Taouk preferred to work more “hands-on” – onsite and running the jobs.

History of the accident

Mr Taouk said that on 3 December 2020 he was driving his “brand new” Ford Ranger utility in Concord and was going to get lunch. He was stationary waiting for a parked car to pull out so that he could take their parking space. He said that an Isuzu DMax utility failed to brake at all and struck the rear of his vehicle. He estimated the speed of the other vehicle as

60kmph, and said the driver was on the phone. Mr Taouk’s vehicle spun, went up onto the footpath and he recalled it travelling towards the front fence of a house.
Bystanders helped him out of his vehicle. He said that his utility had a large, heavy towbar which protected it to some extent. It was towed away – he said that the vehicle really should have been written-off but because it was new, the whole rear end was replaced. He recalled that all the airbags in the offending vehicle activated and understood it had been a write-off. Ambulances attended, but his business partner came to the scene and drove him home.

Symptoms and treatment following the accident

Mr Taouk recalled that when he got home, his right leg was numb, and he was unable to get out of the car properly. He was later taken to Canterbury Hospital Emergency Department – he said that the hospital wanted to keep him overnight, but he preferred to go home – his mother and brother came to the hospital and were happy to look after him. He was instructed to call the hospital if he developed any new symptoms.
The discharge letter from Canterbury Hospital Emergency Department, dated

3 December 2020 from Dr Euphemia Floresca (Trainee Specialist), was quite detailed. She also obtained the history that his stationary vehicle was hit by another one travelling at about 60kmph with the airbags deploying in the offending vehicle. She noted:
“States that his body was all over the place – hands in the air – must have turned in his seat before hitting his buttocks on the door – denies hitting his chest, head nor abdomen – no loss of consciousness.”
Examination showed cervical spine tenderness at C5 to C7 and a Philadelphia collar was applied. Secondary survey also showed tenderness over the left shoulder and tenderness in the epigastric area and tenderness from T4-T6 and L1-L5.
Upper limb power was described as normal, but:
“Sensory – 50% deficit along the C-5,6 distribution (lateral aspect of the arm and forearm) on the left. 50% deficit along the L1-L5 on the right… no sensory deficit elsewhere, sensation intact on perineum, reflexes intact.”
CT of the whole spine was reported to show:
“Facet joint arthrosis in the cervical spine most severe on the left at L4/5 where there was associated neural exit foraminal stenosis but no spinal canal stenosis, fracture/dislocation or extradural haematoma or abnormal prevertebral soft tissue swelling.”
In the thoracolumbar spine there was noted to be incomplete closure of the posterior elements at S1 (likely to be congenital), but no other abnormalities.
The doctor discussed the case with Dr Richard Shaw, Neurosurgery Registrar at RPAH, and Mr Taouk was discharged home with analgesia in the form of Paracetamol and Oxycodone. He was advised to return to hospital if he developed any neurological symptoms, and to see his GP to organise an MRI if he had ongoing difficulties.
Mr Taouk said that he had in fact had little treatment subsequently-he put this down to the restrictions due to the Covid 19 pandemic. He was not referred to any specialist for treatment and said that it took a long time to get an MRI scan.
Mr Taouk went on to say he could not afford to take much time off work. Subsequently, he had a period off work because of the Covid lockdowns but said that he then felt obliged to get back to some work again.
He was asked if any of his symptoms had improved and he replied, “nothing – I lost my livelihood and my business partner. Very poor sleep – life upside down – I had to move back home.”

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

Mr Taouk denied any such further accidents, injuries, or conditions. Unrelated to the accident, he said that he had undergone bilateral inguinal hernia repair in June of this year and had a nose reconstruction because of blocked nostrils which he put down to boxing injuries years ago.

Current symptoms

Cervicothoracic spine

When asked what was troubling him most, Mr Taouk pointed to the proximal thoracic spine, where he described constant pain – “day and night.” He described constant sharp pain “like an ice pick in my back.” He tries to avoid any heavy manual handling. It gets worse with prolonged driving. He described adopting various postures, demonstrating some of these, which he tries to relieve pain in this area.
In association, he described “migraine” headaches, which he described as persistent and accompanied by nausea and dry retching. He described marked associated photophobia and some blurring of his vision. He said that if one of these occurs at work during the morning, he would have to go home at midday, have a hot shower and then lie down, and might sleep for two or three hours.

Upper limbs

When asked about any upper limb symptoms, he described pain in both antecubital fossae of the elbows. Regarding the shoulders he reported, “just tightness.” Mr Taouk went on to describe how difficult it was to get comfortable in bed, trying different positions, including lying on his stomach and lying on either side. At this stage of the interview, he also demonstrated elevation of the right upper limb, saying that he sometimes adopted this position for relief.

Low back

When asked about the lower back, Mr Taouk replied, “it’s stiffness – it’s a response to what’s at the top.” He was asked to stand and point to the painful area- he again pointed to the proximal thoracic spine rather than the lumbar area.

Weight loss

Mr Taouk said that he had lost considerable weight from about 90 to 75/80kg and his waist going down from 36 to 30 inches.

Sleep disturbance

Mr Taouk described his sleep as bad and said that it was, “killing me.” Sometimes he will go to bed at 8.00 or 9.00pm, but more typically at 9.00-10.00 pm. He often wakes suddenly at about 2.00 am in pain and feeling anxious and then will go for a walk. He may not get back to sleep again after this. He said that he tries to avoid naps during the day but sometimes must take one. He constantly feels tired during the day.

Present treatment

Mr Taouk said that earlier after the accident, when he was trying to get his rental house ready to be tenanted, he was taking, “hundreds” of Endone tablets. He found it difficult to cease these and no longer takes Endone at all, describing it as too addictive.

Lifestyle factors

Mr Taouk said he was currently smoking 60 cigarettes a day – he had increased his smoking after the accident and said that he was trying to cut down. He described intermittent binge drinking and said that he was trying to avoid this.

Current activities

Mr Taouk is currently living with his parents and brother. He said that his father had major surgery for head and neck cancer last year. His brother used to work with him and is now working alone – he said that his brother helps him a lot.
Mr Taouk said he tries to help around the home but cannot do very much. He was asked if he had a girlfriend/partner. He said that he did not, commenting, “I can’t even put up with myself!”

Physical examination

Mr Taouk attended the Commission’s Medical Suites early. He presented as a generally healthy-looking middle-aged man, but he did look quite tired – consistent with his history of disturbed sleep. He had short/receding hair, several days’ growth of beard, and some tattoos on his upper limbs.
He was very talkative and expressed considerable frustration with the compensation system – he said that he had both CTP and workers compensation claims and that “I never wanted wages – I just wanted treatment.”
He was co-operative throughout and gave a clear specific history, mainly localising pain to the upper back – as described above. He showed good effort, complying with all requested instructions, with no evidence of abnormal pain behaviours, self-limitation, or inconsistency. Height was 177 cm and weight 82 kg, giving a BMI of 26 (just minimally above the healthy weight range).

Cervical spine

Posture of the cervical spine was within normal limits. On palpation he described minimal tenderness over the cervical spine itself. Trapezius muscles were soft and nontender and there was no evidence of muscle spasm or guarding. There was moderate restriction of AROM of the cervical spine – there was minor variation with repetition of movements –

Mr Taouk appeared to be pushing himself to achieve the maximum range – this was not considered to be inconsistency. Flexion was one third to half of normal, and extension greater at two-thirds of normal. Rotation was two-thirds of normal bilaterally and lateral flexion half of normal bilaterally.
Thus, there was dysmetria of the cervical spine. There was no muscle guarding or spasm, and he was not describing non-verifiable radicular complaints in the upper limbs. As can be seen below under ‘Upper Extremities,’ there were no objective signs of radiculopathy.

Thoracic spine

On palpation of the thoracic spine Mr Taouk reported consistent moderate tenderness from about T3 to T8, with associated muscle guarding/tightness. There was also a slightly tender area over T11/T12. Spinal rotation (which mainly occurs in the thoracic spine) was tested with him seated in a chair to stabilise the pelvis. This was full and symmetrical bilaterally with some complaint of back pain.

Lumbosacral spine

There was no significant tenderness to palpation over the lumbosacral spine. AROM of the lumbosacral spine was tested with Mr Taouk standing with knees straight: flexion, extension and lateral flexion bilaterally were all within normal limits, with no evidence of muscle guarding or spasm.
Thus, there was no dysmetria, muscle guarding or spasm. Mr Taouk was not describing non-verifiable radicular complaints in the lower limbs. As can be seen below under ‘Lower extremities’ there were no objective signs of lumbosacral radiculopathy.

Upper extremities

The palms of the hands showed moderate calluses – consistent with his history of doing some lighter plumbing work at present. (Mr Taouk added that they were soft compared with what they had been in the past). The right (dominant) upper arm measured 31 cm in circumference as did the left. The right forearm measured 28 cm and the left 27.5 cm. Biceps, triceps and brachioradialis reflexes were normal and symmetrical.
A well-healed scar over the left elbow was noted from ulnar nerve surgery many years earlier. Power of all muscle groups in both upper limbs was normal and symmetrical and sensation was preserved bilaterally.
Abnormalities in the upper limbs were restricted to the shoulders. There was no significant tenderness to palpation over either glenohumeral joint, but AROM as measured with a goniometer with repetition was consistently slightly restricted as tabulated:

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	160°	160°
Extension	40°	40°
Adduction	40°	40°
Abduction	140°	150°
Internal Rotation	60°	90°
External Rotation	70°	70°

Mr Taouk appeared to be making good and considerable effort to achieve the maximum range possible. At the upper limits of movements, he described muscle tightness – pointing to the scapulae region. Medical Assessor Couch considered this was consistent with

Mr Taouk's repeated complaint of symptoms mainly in the upper thoracic area with tenderness to palpation found in this area. Impingement signs were negative bilaterally. Power of resisted shoulder movements was within normal limits, although with some pain reproduced.

Lower extremities

The right (dominant side) thigh, measured 10 cm above the patella, measured 48 cm in girth and the left 48.5 cm. The right calf measured 36.5 cm and the left 36 cm.
Both knee jerks were difficult to elicit but were present and approximately symmetrical. Ankle jerks were normal and symmetrical. Power of extensor hallucis longus (L5 nerve roots), ankle eversion (S1 nerve roots) and knee flexion and extension (L3 and L4) were all normal and equal. Light touch sensation was preserved in both lower limbs.
Straight leg raising tested supine was normal at 50 degrees bilaterally, with slight buttock pain but no evidence of positive neural tension.

Observation on further functional activities

Mr Taouk was able to take a few steps with weight on his forefeet and heels off the floor, and then on his heels with forefeet off the floor. He could do a full squat to the floor and recover without needing hand support, commenting that squatting was “my favourite position.”

Conclusions following re-examination

Mansour Taouk presented in a straightforward manner. He is now a 44-year-old man who describes working hard in his successful plumbing business before the accident. He describes a quite serious rear-end crash, when his stationary utility was hit by a similar vehicle travelling at around 60kmph. His vehicle was towed away and sustained major damage but was apparently repaired because it was almost new.
Although his business partner took him home, he described the almost immediate onset of symptoms, including numbness in the right leg. A detailed report from Canterbury Hospital Emergency Department was consistent with an injury to the cervical spine, upper thoracic spine, and lumbosacral spine, with documented sensory changes in the left upper limb and right lower limb. The trainee specialist in the emergency department was sufficiently concerned to contact a neurosurgical registrar at the RPAH, but after satisfactory imaging he was discharged home.
Mr Taouk describes relatively little treatment or investigation since then. He describes persistent symptoms and considerable restrictions on his ability to work as a plumber, such that he has cut down greatly and is mainly performing lighter maintenance duties.
He describes persistent symptoms, particularly in the upper thoracic area. Following detailed history taking and examination, the injury is best described as to the “cervicothoracic spine.” There is some dysmetria of cervical movement while tenderness and muscle guarding are mainly in the proximal thoracic spine. In addition, he has consistent slight to moderate painful restriction of AROM in both shoulders.
It is noted that at his threshold injury assessment in June 2023, Medical Assessor Alan Home also found well-localised tenderness in the upper thoracic spine and similar restriction of elevation of both shoulders (although shoulder injuries had not been referred to him). In addition, the finding of cervical spine dysmetria is consistent with the findings of Medical Assessor Wallace in the Certificate under review.
Restriction of AROM in the shoulders was fairly like that documented by Medical Assessor Wallace – although he concluded that there was no objective evidence that Mr Taouk had suffered injuries to his shoulders. The clinical picture Medical Assessor Couch’s re-examination found was of secondary restriction of AROM in the shoulders due to the cervicothoracic spine injury.
The cervicothoracic spine injury is assessed as DRE Cervicothoracic Category II, giving 5% whole person impairment (WPI). The tabulated AROM for each shoulder above is considered a reliable indication of impairment. Applying the tabulated AROM to Figures 38, 41 and 44 of AMA-4, there is a 6% upper extremity impairment for the right shoulder and 3% for the left. These, in turn, convert using Table 3 on Page 20 to 4% and 2% WPI, respectively.
Finally, 5%, 4% and 2% WPI are combined using the Combined Values Charts to give a total of 11% WPI.

Body Part or System	AMA4 Guides/ Guidelines References (chapter/ page/table)	Permanent (YES/NO)	Current %WPI*	*%WPI from pre-existing OR subsequent causes**	*%WPI due to accident**
1	Cervical spine	DRE Cervico-Thoracic Category II, page 104 AMA Guides Edition 4.	Yes	5%	0%	5%
2	Lumbar spine	DRE Lumbosacral Category I page 102	Yes	0%	0%	0%
4	Right shoulder	Figures 38, 41 and 44 of AMA-4	Yes	4%	0%	4%
Left shoulder	Figures 38, 41 and 44 of AMA-4	Yes	2%	2%

Panel deliberations

The Panel decided to adopt Medical Assessor Couch’s examination report with its conclusions and impairment assessment as evidence.
As the insurer submitted that the accident was less serious than claimed the Panel considered the forces on the claimant’s body in the accident, between two similar-sized utes.
The Panel noted that utes have a rigid rear ladder-chassis and this is likely to cause more jolting than passenger car with “crumple zones.” This supports how the claimant described the accident, which Dr Euphemia Floresca recorded in the Canterbury Hospital notes.
There is no evidence but for comments in a Medical Assist Network report, which supports the accident not being sufficiently severe to cause the injuries referred to this Panel.
The claimant has given a consistent history of persistent neck and proximal thoracic spine pain, accompanied by headaches, lesser low back pain, and poor sleep.
Soon after the accident the claimant went to the hospital near his home. The neck pain was immediate along with the early upper limb complaints noted as the left shoulder in the Canterbury Hospital discharge notice and as “sh” entered twice in the notes on the claimed injuries in the Application for Personal Injury Benefits.
He persevered with work but he says because of his pain since the accident he had to reduce the “on the tools workload” in his plumbing business.
Although the claimant has been attending work sites since the accident the insurer has offered no evidence that rebuts the claimant’s evidence. There are reports submitted with the insurer’s bundle referring to his psychological condition and conclusions about his consistency, but this was not borne out in the examination.
Throughout his re-examination he made a good and consistent efforts to show his full AROM.
The Panel considered the insurer’s submissions addressing a nexus between the claimant’s work history and his physical state. The Panel considered causation of the current complaints and whether there was pre-existing symptomatic impairment to deduct from the current impairment.
The Medical Assist Network reports referred to in the insurer’s submissions noted there were no neurological clinical signs from the accident. The reports also refer to neck pain symptoms during the three years before the accident.
The insurer’s submissions also refer to a 20 year history of residual neck pain following a traumatic injury detailed in Ms Karina Kristi, physiotherapist at Insync Physiotherapy, in the Allied Health Recovery Request (AHRR) #1 dated 10 March 2021 (R13) of the insurer’s bundle. The insurer points out that the claimant did not refer to this in the Application for Personal Injury Benefits dated 21 January 2021 (A2).
However, perusing the insurer’s bundle shows that although the Medical Assist Network reports refers to neck symptoms, there is no other material such as clinical notes referring to that condition. Further, R13 in the insurer’s bundle is a scan report, and there is no other material stating Mr Taouk required treatment in any relevant period before the accident.
The Panel considered the insurer’s submissions on Nguyen and concluded the restrictions in the AROM in both shoulders were related to the accident. Medical Assessor Couch addressed this, specifically in his report. The Panel noted the insurer’s submission on Nguyen and the reference to Allianz Australia Insurance Ltd v Argyle [2022] NSWPICMP 109.
Noting the Argyle approach the Medical Assessor in this case found that there were ongoing symptoms in the cervical-thoracic neck spine causing restricted shoulder movements. The soft tissue injuries have persisted and cause referred pain affecting the shoulders.
Despite Mr Taouk performing heavy physical work for many years before the accident and scans showing spinal degeneration there is no relevant evidence there were cervical, thoracic or shoulder symptoms before the accident. That changed after the accident.
It was reasonable to ask the Panel to question whether the claimant’s work could eventually have led to musculoskeletal impairment but the accident was a significant intervening event. It would go against Brown to ignore the accident and find that the claimant’s possible trajectory due to his work was more likely to happen rather than what has followed since the accident because there is no identifiable evidence, apart from the asymptomatic degeneration. The changes to his work and the need for strong pain killers for a significant time after the accident supports that.
Further, even if there was a nexus between the claimant’s work before the accident and his current impairment, the material provided did not satisfy the criteria for objective evidence following the Guidelines paragraphs 6.31 to 6.34 to assess impairment existing before the accident.
The Panel found the claimant’s lumbar spine condition related to the accident was almost resolved and could not be assessed higher than DRE category I.
The Review Panel found that the motor accident caused the following injuries:
·        cervical spine – soft tissue injury;
·        lumbar spine – soft tissue injury;
·        right shoulder – Nguyen principle, and
·        left shoulder – Nguyen principle.
The Review Panel found that the following injuries were symptomatic, but were assessed as 0% permanent impairment:
· lumbar spine – soft tissue injury.

Permanent impairment

The motor accident caused injuries with total percentage permanent impairment of 11%. The total WPI is greater than 10%.
Permanent impairment ratings take symptoms into account; however, the percentage WPI is not a direct measure of disability. 0% WPI indicates that the accident caused an injury and that there may be continuing symptoms, however, relevant Guides may rate the associated impairment at 0% WPI.

Conclusions

The Review Panel has assessed that the accident caused injuries with a different degree of permanent impairment to Medical Assessor Wallace's assessment and certificate issued on 9 May 2024.
Accordingly, the Review Panel revokes the earlier certificate and issues a new Permanent Impairment Certificate assessing the claimant’s permanent impairment that has resulted from the injuries caused by the accident as 11%.
Medical Assessor Adrian Vertoudakis’ certificate dated 17 May 2024 found the claimant’s referred dental injuries were not related to the subject accident.
Accordingly, this Review Panel revokes Lead Medical Assessor Wallace’s combined assessment certificate dated 2 July 2024 and issues a replacement combined assessment certificate under s 7.26 (8) of the MAI Act stating the combined permanent impairment that has resulted from the injuries caused by the accident were 11% which is greater than 10%.

APPENDICES

APPENDIX A

Statutory Provisions

Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines 9.2 (the Guidelines).

The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.

Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:

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

'Causation means that a physical, chemical, or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:

The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination
The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'

This, therefore, involves a medical decision and a non-medical informed judgement.

6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”

Clause 6.138 of the Guidelines defines radiculopathy as the impairment caused by dysfunction of a spinal nerve root or nerve roots. To conclude that a radiculopathy is present, two or more of the following signs should be found:

(a) loss or asymmetry of reflexes;

(b) positive sciatic nerve root tension signs;

(c) muscle atrophy and/or decreased limb circumference;

(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and

(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.

Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act regarding causation.

The decision in Peet v NRMA Insurance Ltd [2015] NSWSC 558 provides further guidance to the Panel on causation. Peet reviewed a number of Supreme Court decisions including the observations of Justice Campbell in Owen v Motor Accidents Authority of NSW [2012] NSWSC 560 who stated it was “well to emphasise the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by the Civil Liability Act 2002, s 5D”.

Further, in Hunter v Insurance Australia Ltd [2021] NSWSC 623 the Court observed (at [16]) a Panel was obliged to apply the Guidelines which incorporated “common law principles of causation. “Under s 63(3) of the MAC Act and Sch 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 Commission.

The Civil Liability Act 2002 (the CL Act) applies to the MAI Act in determining causation. In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13 (Raina) at [65] 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 CL Act 2002, ss 5D 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.”

Wright J in Briggs No. 2 [2022] NSWSC 372 reminds the Panel that the relevant legal test in relation to causation does not require scientific certainty. His Honour stated at [70]-[72]:

“70. This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce [2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):

‘138 Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:

‘An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference’.’

71. The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 as follows, at 242:

‘... it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability, and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.’

Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].”

These observations were made in the context of a review Panel of three medical experts unlike the present Panel’s composition following amendments to the MAC and MAI Acts.

In respect of any injury or impairment before or after the which would justify any negative causation findings, the basis for this needs to be higher than the level of ‘mere speculation’ in the absence of any identifiable evidence. Such speculation must be dismissed as per the principles enunciated in Insurance Australia Limited trading as NRMA Insurance v Brown [2019] NSWSC 1236.

In particular, such findings must follow the Guidelines paragraphs 6.31 to 6.34 which set out what must be considered when assessing impairment from conditions before or after the accident.

Section 41 (2) in Part 5 of the PIC Act enables the Commission to make rules concerning the practice and procedure before the Commission including proceedings before a Panel reviewing a decision of a Merit Reviewer or a Medical Assessor.

Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made under 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.

APPENDIX B

Insurer's submissions dated 21 December 2022

The insurer submitted that the accident was a rear-end collision. The mechanism described would not be sufficient to inflict assessable injuries, particularly because the claimant could get out of the car without assistance and he did not receive treatment at the scene.

Dr Dryson’s report dated 5 December 2023 records the claimant’s permanent impairment arising from the accident was:

cervical spine 15% WPI;
lumbar spine 5% WPI;
right shoulder 3% WPI; and
left shoulder 4% WPI.

The insurer relies upon treating evidence which supports permanent impairment arising from physical injuries sustained in the accident not exceeding 10%.

The insurer submits that the claimant had a good recovery despite minor ongoing symptoms.

Dr Dryson inflates his assessment and categorisation of the cervical and thoracic spine because the objective medical evidence does not demonstrate a significant injury to the cervical or thoracic spine.

The insurer relies on:

·A CT of the whole spine dated 3 December 2020 demonstrated pre-existing facet joint arthritis at C4/5 and no new injury.
·An MRI taken three months also demonstrates mild degenerative change at C5/6 with no obvious nerve impingement. Dr Jeffrey Brennan, neurosurgeon’s report dated 15 June 2021 states the MRI shows there were no hard neurological findings. The MRI images are normal for age. He recommends physical therapy, exercise physiology and perhaps consulting a rehabilitation physician.

Dr Dryson did not consider the history of similar cervical and thoracic symptoms before the motor accident, such as:

degeneration often caused by physical and laborious work such as the claimant’s pre-injury role of a builder and plumber.
The twenty-year history of residual neck pain following a traumatic injury referred to in the Allied Health Recovery Request (‘AHRR’) #1 dated 10 March 2021.This was not included in the Application for Personal Injury Benefits dated 21 January 2021.

Dr Dryson’s assessment occurred after the claimant was injured in the course of his employment on 21 November 2022, which the insurer refers to as R19. It refers to problems caused by ‘repetitive lifting’ which appears incongruent with the alleged cervical and thoracic symptoms. (The Panel notes the insurer’s bundle reference R19 refers to a medical certificate referring to the accident sequelae.)

Medical Assessor Home’s certificate dated 7 June 2023 did not diagnose a significant cervical or thoracic injury resulting from the accident, nor was he satisfied there was verifiable radiculopathy had been established in his or any earlier examination.

The claimant’s GP’s early opinion matches this opinion.

The Panel should prefer Medical Assessor Home’s opinions over Dr Dryson and note the improvement that physiotherapy provided to the claimant’s neck and back pain, range of motion and functional tolerances.

The claimant returned to plumbing in around May 2021 and has maintained this to date. There is no evidence to substantiate the claimant’s allegation he modified his duties.

The treating medical evidence does not demonstrate guarding, asymmetry of movement or spasm, so the cervicothoracic spine is better categorised as DRE I (0% WPI). If 5% is assessed this ought to be reduced on account of the pre-existing or subsequent injuries following cl 6.31 of the Guidelines.

The insurer submits that there is no assessable impairment for the lumbar spine despite Dr Dryson diagnosing an ‘aggravation of L5/S1 disc with annular fissure’.

The radiological imaging demonstrates there was degenerative pre-existing pathologies that would result in the kind of the alleged symptoms irrespective of the accident.

Medical Assist Network supplementary report dated 24 May 2021 (R21) concluded that there was no evidence of acute traumatic change, that the findings were longstanding in nature and due to the degenerative process, and

The insurer relies on Dr Brennan’s opinion that the pathology ‘may have related to the car accident although may have also related to previous lifting or twisting injury’ (A10).

The insurer submits that the Panel must consider causation of the current complaints or determine whether there was pre-existing symptomatic impairment to deduct from the current impairment.

DRE II is the most that will be assessed, and DRE I is more appropriate.

The insurer relies on:

Dr Dryson confirming that there is no verifiable radiculopathy.
Medical Assessor Home’s examination was unremarkable. There was no symmetry of movement, reflex abnormality, neurological abnormality (R8).
The Medical Assist Network reports note that the claimant suffered ‘neck and back strain with no clinical neurological signs.’ The claimant was subsequently discharged from the Doctors Support Program after Dr Wijetunga and Dr Douaihy concurred that there were no clinical signs to warrant further incapacity.
Ms Kristi noted that the symptomatology associated with the initial diagnosis of ‘L5/S1 disc bulge causing LBP and pain referring to right leg’ had mostly resolved by April 2021.
Dr Brennan was satisfied that the claimant’s low back discomfort was ‘manageable’ and does not cause ‘too much grief’ (A10).
The insurer instructed orthopaedic surgeon Stephen Rimmer. He reported on 30 January 2024 that he assessed DRE I in respect both the cervical and thoracolumbar spine yielding 0% permanent impairment. He did not address the shoulders and declined to comment on Dr Dryson’s assessment.

Dr Dryson’s findings contradict the evidence against any injury or symptomatology in the bilateral shoulders as follows:

Left shoulder x-ray taken on 3 December 2020 (R22) was normal.
Lack of right shoulder scans.
The claim form did not list injury to the right or left shoulder.
The Medical Certificate dated 15 December 2020 does not list shoulder injuries, nor does Dr Douiahy’s referral dated 15 December 2020, 27 January 2021, or Dr Antoun’s reports dated 2 March 2021, 7 April 2021, 17 May 2021, or 24 May 2021.
The claimant did not refer shoulders for threshold assessment on 8 July 2021. That supports an inference the shoulders were not symptomatic and could not be sustained directly in the accident.

Against Nguyen, Medical Assessor Home reported that the claimant ‘cannot recall any ongoing complaints in the upper extremities.’ He observed normal shoulder movement and stated that impingement signs were negative.

There was no contemporaneous evidence of objective pathology or restriction in the physiotherapist’s reports, the neurologist’s records or in the GP records.

If the Panel observes range of motion restrictions the accident did not cause these.

The claimant has not produced evidence demonstrating the accident caused these injuries, evidence that he has residual symptoms, limitations or that these body parts attract assessable impairment.

Dr Dryson’s reports details the claimant’s version of events that he struck his left hand and left index finger while being ‘thrown about’ in his vehicle also discussed symptoms in the past tense. There is no assessable impairment for the left hand.

Other examinations do not record assessable left or right hand symptoms

The claimant referred his right leg for assessment, but the submitted evidence points to that body part’s symptoms resolving.

Actions

Download as PDF Download as Word Document

Citations

Taouk v QBE Insurance (Australia) Limited [2025] NSWPICMP 154

Cases Citing This Decision

0

Cases Cited

3

Statutory Material Cited

0

Nguyen v Motor Accidents Authority of New South Wales and Anor [2011] NSWSC 351

Insurance Australia Limited trading as NRMA Insurance v Brown [2019] NSWSC 1236

Allianz Australia Insurance Ltd v Argyle [2022] NSWPICMP 109

[2025] NSWPICMP 154

12 March 2025