Younes v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	Younes v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 710
CLAIMANT:	Massoud Younes
INSURER:	Insurance Australia Limited t/as NRMA
REVIEW PANEL
MEMBER:	Terence O'Riain
MEDICAL ASSESSOR:	Margaret Gibson
MEDICAL ASSESSOR:	Mohammed Assem
DATE OF DECISION:	15 September 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; permanent impairment; review; insurer disputed causation and permanent impairment; Commission referred upper limb injuries with cervical spine injury to assess permanent impairment; Medical Assessor’s certificate assessed 0% permanent impairment; referred for review; re-examination; claimant was cooperative and consistent; accident was capable of causing all referred injuries; 6% permanent impairment; different clinical findings; Held – different permanent impairment findings to original assessment; Review Panel revoked original medical assessment certificate; permanent impairment not greater than 10%.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Review Panel Assessment of Degree of Permanent Impairment Certificate issued under s 7.26(7) of the Motor Accident Injuries Act 2017 1. The Panel has found that the degree of permanent impairment of the claimant that has resulted from referred injuries caused by the accident is 6%. 2. Accordingly, the Panel revokes Medical Assessor Truskett’s certificate dated 11 June 2024 and issues a new certificate certifying that the degree of permanent impairment of the claimant resulting from the injuries caused by the accident is not greater than 10%.

REASONS

BACKGROUND

The claimant was injured in an accident on 26 March 2021.
The insurer is responsible for loss arising from the claimant’s injuries from the subject accident under the Motor Accidents Injuries Act 2017 (MAI Act).
The insurer and the claimant are in a dispute about the claimant’s permanent impairment from injuries caused by this accident.
The claimant applied to the Personal Injury Commission (the Commission) to resolve this dispute.
The Commission referred the following injuries for assessment:
(a)    Elbow – partial tear common extensor tendon on background of diffuse tendinosis. Full thickness tear of biceps tendon at insertion site with tendon retraction.
(b)    Supraspinatus tendinosis with overlying subacromial bursitis and bursal impingement on abduction. Full-thickness incomplete tear of the anterior and mid supraspinatus tendon.
(c)    Cervical spine – mild spondylitic changes, C3/4 mild disc desiccation with disc bulge. At C4/5 disc dehydration and disc bulge. There are mild degenerative changes with mild disc bulges at C4/5 and C5/6 levels, no significant neural tissue compression. Central and mild left paracentral disc bulge at C6/7 level causing left neural foraminal narrowing and minimal impression upon the left exiting C7 nerve root.
(d)    Lumbar spine – L2/3 disc bulge indenting the anterior aspect of the thecal sac, no significant narrowing. L3/4, moderate disc bulge indenting anterior aspect of the thecal sac on top of the slightly shortened pedicles. L4/5, marked facet arthropathy, anterolisthesis of L4 over L5 vertebrae resulting in spinal canal stenosis and pressure on nerve roots with narrowing neural exit foramina at L4/5.

On 11 June 2024 Medical Assessor Phillip Truskett certified the claimant’s permanent impairment at 0%.
The claimant applied for review on the basis there was a material error in the assessment.
On 8 October 2024 the President of the Commission’s delegate constituted this Review Panel (the Panel) to review the original certificate (the Review).
Pursuant to cl 128(1) of the Personal Injury Commission Rules, 2021 (the PIC Rules) the Panel “is to conduct and determine the proceedings in accordance with procedures determined by the panel.”
The Panel considered whether the submissions with the claimant's review application read as if the original examination was considered valid, but the findings on pathology are contested. There were other points that needed clarification.
The Panel sought submissions on this point and three other issues which the claimant addressed as follows:
(a)    The factual and complaint medical issues warrant re-examining to determine impairment following AMA 4 38-41. The Panel must assess arm weakness in reference to range of motion. Medical Assessor Truskett’s certiﬁcate ignored the tear, ROM and arm weakness. Examining the claimant was required on this point and non-speciﬁc pain or disfunction to the anterior arm and antecubital fossa to assess impairment.
(b)    The threshold injury evidence was relevant because it analyses causation and injury. The review panel’s decision dated 12 September 2024, Medical Assessor Woo’s certificates dated 23 July 2023 and 28 October 2022 would assist the Panel to resolve whether the right elbow injury – partial tear common extensor tendon on background of diffuse tendinosis, full thickness tear or biceps tendon was related to the accident and assess permanent impairment.
(c)    The photos included in the bundle include the claimant’s injured thumb on the day of the accident.
(d)    The claimant would attempt to provide up to date clinical notes with visible entry dates before the examination.
The Panel arranged for Medical Assessor Assem to examine Mr Younes on the Panel’s behalf on 29 April 2025.

Legislative framework

Schedule 2(2)(a) of the MAI Act declares:
“the degree of permanent impairment of the injured person that has resulted from the injury caused by the accident (including whether the degree of permanent impairment is greater than a particular percentage)” is a medical assessment matter.”
If there is a dispute about the degree of permanent impairment of an injured person being sufficient to award non-economic loss damages i.e. greater than 10%, then those damages may not be awarded unless the degree of permanent impairment has been assessed by a Medical Assessor under Division 7.5: s 4.12(1) MAI Act.
Division 7.5 of the MAI Act provides for the Commission to assess declared medical disputes including provisions relevant to an original medical assessment and for appointing Panels to review those medical assessments.[1]
[1] Sections 7.20, 7.24 and 7.26.
Parties may apply to the President of the Commission for review of a medical assessment on grounds that the assessment “was incorrect in a material respect (sub-s (1)).” If the President, or his delegate is satisfied “there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect” then the President refers the application to a review panel consisting of a member of the Commission and two Medical Assessors (sub-ss (2) and (2B)) to reassess the dispute.
The review is not confined to the issues raised in the application (or the reply) but is “a new assessment of all the matters with which the medical assessment is concerned (sub-s 3A).”
Rule 128 of the Personal Injury Commission Rules 2021 (the Rules) permits the Panel to determine its own proceedings, and the rules of evidence do not bind the Panel, which may inquire into relevant matters as it thinks fit, while observing procedural fairness.
The method of assessing the degree of impairment is dealt with in s 7.21, which is in the following terms:
“7.21 Assessment of degree of permanent impairment
(1) The assessment of the degree of permanent impairment of an injured person for the purposes of this Act is to be made in accordance with the Motor Accident Guidelines. The assessed degree of permanent impairment is to be expressed as a percentage.
(2) Impairments that result from more than one injury arising out of the same accident are to be assessed together to assess the degree of permanent impairment of the injured person.
(3) In assessing the degree of permanent impairment, regard must not be had to any psychiatric or psychological injury, impairment, or symptoms, unless the assessment of the degree of permanent impairment is made solely with respect to the result of a psychiatric or psychological injury.
(4) A medical assessor may decline to make an assessment of the degree of permanent impairment of an injured person until the assessor is satisfied that the impairment caused by the injury has become permanent.”
Pre-existing impairment is addressed in cls 6.31-6.33 of the Guidelines. Clause 6.34 deals with subsequent injuries.
The Guidelines state as follows with respect to causation of injury:
“Causation of injury
6.5    An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.
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:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7    There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the accident. The 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.”
It is necessary for the Panel to consider whether the accident caused or contributed to the diagnosed condition: Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372 at [75]. The accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible: Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 at [50]. Further, the provisions of the Civil Liability Act 2002 apply, in particular s 5D and s 5E.

ASSESSMENT UNDER REVIEW

Medical Assessor Truskett examined the claimant on 6 June 2024. The referred injuries listed above. He assessed the referred injuries being bilateral elbows, bilateral shoulders with the neck and back as soft tissue injuries with 0% permanent impairment.
He recorded the claimant as having intense pain in all body parts.
The claimant told him he had back pain, but it had not been symptomatic for the last

20 years. The claimant treated his condition with regular pain medication.
Reviewing the evidence including cervical X-rays taken on 31 March 2021 and cervical spine MRI taken on 19 April 2021 he judged those scans as showing degenerative changes, which could not be attributed to the accident.
The Medical Assessor reviewed the right shoulder ultrasound report taken on

26 October 2022. He noted degenerative change within the AC joint.
There were no neurological signs during this assessment.
He would not accept the nexus between the accident and the right elbow symptoms because the elbow symptoms, which involved a bicep tendon rupture arose 18 months after the accident.
The permanent impairment assessment was 0%, because the spinal conditions were rated DRE Category I and the upper extremities displayed full ranges of motion.

EVIDENCE

The claimant’s statement dated 19 March 2024 refers to his 2001 work-related injuries, which seriously injured one of his ankles and caused lumbar spine pain without neurological impingement.
He describes the subject accident and how he did not want to attend the hospital because he was worried about his wife safety and wanted to return home and rest.
Relevantly, his statement refers at paragraph 15 to immediate pain in the right arm, shoulders and neck and lower back when the airbags deployed. He does not describe the trajectory of the shoulder condition.
Dr Peter Conrad’s medico-legal report dated 24 October 2023 described the claimant as having asymmetric neck movements plus full ranges of movement for all the referred injuries with the ankles and hips.
He assessed that the accident caused a new cervical spine injury and aggravated the 2001 lumbar spine condition. Dr Conrad foresaw the future need for back surgery including fusion. In his opinion the accident caused significant lumbar disc changes.
There was asymmetry in straight leg raising the right and left leg, with neurological sensitivity in the right leg and loss of pinpoint discrimination of the L5 nerve root.
The cervical spine was categorised as DRE Category II and the lumbar spine as DRE Category III to produce 15% permanent impairment. He attributed all of that permanent impairment to this accident.
Dr Vijay Maniam examined the claimant and provided a detailed report dated

8 December 2021. This doctor examined the bilateral elbows, bilateral hands, neck and lumbar spine. The lumbar spine demonstrated radiculopathy. Dr Maniam treated the claimant for his 2001 accident. This doctor referred to the upper extremity conditions as if they had resolved.
The claimant’s general practitioner (GP) referred the claimant to see orthopaedic surgeon

Dr George Kirsh on 31 August 2022, noting the right inner forearm pain and swelling.
The insurer also disputed that the claimant’s injuries could satisfy the threshold injury test for the purposes of s 1.6 of the MAI Act.
The original dispute referred to Medical Assessor Woo was about the lumbar spine. The certificate issued 28 October 2022 resolved that the lumbar spine injury was soft tissue only.
The Commission later referred the cervical spine and upper limbs threshold injury dispute to Medical Assessor Woo who produced a certificate dated 23 July 2023. That Medical Assessor assessed that the accident had only caused soft tissue injuries to the cervical spine and left hand/wrist. That Medical Assessor did not accept the nexus between the accident and the upper extremities’ injuries due to the amount of time from the date of accident until the earliest symptom reports for those body parts.
The threshold injury Review Panel referred to the claimant’s GPs notes referring on

6 May 2021 to the neck and lower back pain with bilateral elbow pain and hand numbness. An Allied Health Recovery Request dated 3 June 2021 refers to left and right elbow pain.
The Review Panel opined on the upper extremity injuries that the accident mechanism was sufficient to cause the referred injuries.
In respect to the left elbow the complaints were contemporaneous with the accident.
In respect to the right elbow the Review Panel considered the accident dynamics involving the airbag exploding against the right forearm and hand, which could cause a right elbow injury including a tear in the extent saw tendon. It was likely the claimant’s arm was flexed at the elbow gripping the steering wheel which could produce hyperflexion of the elbow stressing the relevant tendon. The claimant had never complained of right elbow pain before the accident.
They did not find any nexus with the accident and the bicep tendon tear due to the lack of contemporaneous complaint.
The Review Panel did not find a nexus between the bilateral shoulder conditions and the accident.
Ultimately, that Review Panel found the accident caused cervical, left elbow and hand/wrist and right elbow injuries.

Claimant’s submissions

The claimant's undated initial submissions to Medical Assessor Truskett tabulated the referred injuries but did not make any submissions on causation.
The undated review application submissions referred relevantly to causation in that the Medical Assessor did not engage with the contemporaneous complaints contained in the application for personal injury benefits dated 18 May 2021, the AHRR report dated

3 June 2021 referring to right elbow pain, the GP referring the claimant to Dr Maniam on

6 May 2021 addressing bilateral elbows and hands, and Dr Maniam responding on

16 June 2021 confirming those complaints.
In respect to the right elbow the clinical notes do not refer to right elbow problems before the accident, and the right elbow ultrasound does not refer to degeneration.
The right bicep is also the subject of early complaints soon after the accident. A Medical Assessor must consider the question of causation, including addressing the accident mechanism, the history before the accident and the probability that the accident could have contributed to the referred injury.
The claimant referred to authorities that the test of causation is not confined to the immediate effects of the accident.
The right elbow and forearm ultrasound taken on 30 August 2022 demonstrates partial tear of the common extensor tendon at the background of diffuse tendinosis, calcific tendinosis of the common flex or tendon and full thickness tear of biceps tendon at its insertion site with the tendon retraction. The scan does not refer to degenerative changes. Medical Assessor Truskett did not address how the degeneration in those changes could have gone unnoticed before the accident. There were no intervening causes after the accident.

Insurer’s submissions

In respect of the right elbow forearm the insurer submits the claimant's medical reports did not assess a permanent impairment as being due to the accident.
Medical Assessor Woo found the accident did not cause an injury to that body part.
The claimant's application did not specify that an assessment was required for the left or right or both shoulders.
The medical reports provided for the assessment did not contain evidence regarding permanent impairment at either shoulder with a nexus to the accident.
Dr Conrad's report noted full movement in both shoulders with no neurological signs in either arm.
Medical Assessor Woo's certificate dated 23 July 2023 found nearly full movement at both shoulders with the exception of a symmetrical loss of movement into internal rotation. Medical Assessor Woo also stated there was a normal neurological examination in both arms despite the presence of numbness in both hands.
Medical Assessor Woo determined that there was no nexus between the accident and both shoulder conditions.
Dr Conrad had assessed 5% permanent impairment for the neck due to the presence of muscle spasm and a moderate restriction of movement in an asymmetrical fashion.
During assessment on 13 October 2022 and 29 June 2023 Medical Assessor Woo found the claimant’s neck displayed a normal range of movement, without muscle guarding and a normal neurological examination of both upper limbs.
There were no non verifiable radicular complaints recorded during the earlier Medical Assessor Woo’s assessment despite those symptoms being present on 29 June 2023. Medical Assessor Woo did not determine that these symptoms were due to specific nerve root dysfunction.
The claimant has not presented consistent evidence of neck impairment.
Dr Conrad assessed 10% permanent impairment at the claimant's lumbar spine due to the presence of radiculopathy.
Medical Assessor Woo assessed the claimant's lumbar spine at both assessments to have a normal range of movement, no muscle guarding and a normal neurological examination of both lower limbs.

Medical Assessor Woo did not see non-verifiable radicular complaints at the earlier assessment and he did not determine the symptoms were due to specific nerve root dysfunction.
Consequently, the insurer submits there was no consistent evidence of radiculopathy at the claimant's lumbar spine based on the medical reports provided for these assessments and no evidence of impairment.
Dr Conrad did not assess that body part.
Medical Assessor Woo found the accident did not cause an injury to that body part.
The claimant's application did not specify that an assessment was required for the left or right or both shoulders.
The medical reports provided for the assessment did not contain evidence regarding permanent impairment at either shoulder with a nexus to the accident.
Dr Conrad's report noted full movement in both shoulders with no neurological signs in either arm.
Medical Assessor Woo's certificate dated 23 July 2023 found nearly full movement at both shoulders with the exception of a symmetrical loss of movement into internal rotation. Medical Assessor Woo also stated there was a normal neurological examination in both arms despite the presence of numbness in both hands.
Medical Assessor Woo determined that there was no nexus between the accident and both shoulder conditions.
Dr Conrad had assessed 5% permanent impairment for the neck due to the presence of muscle spasm and a moderate restriction of movement in an asymmetrical fashion.
During assessment on 13 October 2022 and 29 June 2023 Medical Assessor Woo found the claimant’s neck displayed a normal range of movement, without muscle guarding and a normal neurological examination of both upper limbs.
There were no non verifiable radicular complaints recorded during the earlier Medical Assessor Woo’s assessment despite those symptoms being present on 29 June 2023. Medical Assessor Woo did not determine that these symptoms were due to specific nerve root dysfunction.
The submissions dated 16 September 2024 address the claimant's application for review. The following is relevant to this assessment.
In respect to the causal nexus between the accident and the claimant's partial tear common extensor tendon on a background of diffuse tendinosis, full thickness tear of biceps tendon at the right elbow the insurer submits the intent of the claimant’s submissions are not clear. At paragraph of 6 and 7a of the claimant’s submissions, the claimant submits the Medical Assessor incorrectly determined that the right elbow and biceps injury was unrelated to the effects of the accident
The ultrasound dated 30 August 2022 which both referred to the partial tear at the common extensor tendon and the full thickness tear at the biceps tendon and the claimant argued the full thickness tear should have been determined to be related to the accident.
However, the claimant then refers to the injury at the right elbow relating to the partial tear, which presumably relates to the common extensor tendon, should have been found to be related to the effects of the accident. The insurer submits this is not consistent with the claimant's submissions. The insurer did not understand the claimant's submission and the extent of any Medical Assessor error.
Dr Conrad's report dated 24 October 2023 refers to the ultrasound reports relating to the partial tear to the common extensor tendon and full thickness tear to the biceps tendon at the right elbow however Dr Conrad did not assess permanent impairment of the claimant's right elbow.
Dr Maniam's report dated 8 December 2021 stated the claimant's “pains in the elbows were mild and gradually improved and he has minimal symptoms at this stage and the elbow movements have returned to normal.” The Insurer also noted Dr Maniam did not assess permanent impairment for the right elbow.
The GPs referral to Dr George Kirsh dated 31 August 2022 listed a clinical history of symptoms which developed one week ago in the right inner forearm (proximal) swelling/tenderness. This also included the right elbow and forearm ultrasound dated

30 August 2022. The scan reported there was a partial tear of the common extensor tendon at the background of diffuse tendinosis. There was calcific tendinosis of the common flexor tendon. There was a full thickness tear of the biceps tendon at its insertion side of 5.9 x 1.7 x 1.4cm.
The insurer noted there were two aspects related to this scan being the partial tear of the common extensor tendon at the background of diffuse tendinosis and a full thickness tear of the biceps tendon.
Considering the contemporaneous medical notes from Dr Salam, there was evidence of right elbow pain following the accident but there was no request for imaging or carried out in light of the immediate symptoms after the accident. The associated with the partial tear of the common extensor as listed within the ultrasound, the Insurer noted there being the presence of mild arthritic changes, tiny foreign bodies within the elbow joint. There was a thickened and heterogenous with calcification. The summary of this condition was described as a partial tear of the common extensor tendon on the background of diffuse tendinosis. The insurer submitted that an online search in Healthline defines tendinosis as “Tendonosis (or tendinosis) is a chronic condition involving the deterioration of collagen (a structural protein) in the tendons. There is no inflammation in tendonosis, but rather the actual tissue in the tendons is degrading.” That refers to deterioration.
With regards to the full thickness tear at the biceps tendon, there is a history of pain within a week in the right inner elbow, which was at least 18 months after the accident. The biceps tendon inserts into the inner elbow. The findings are unrelated to the accident. The contemporaneous medical notes do not record the claimant experiencing any symptoms immediately after the accident in light of the report of right elbow pain.
Dr Maniam recorded on 8 December 2021 that, “the pains were mild and gradually improved and he has minimal symptoms at this stage.” This is inconsistent with a nexus with the accident and developing a full thickness tear at the right biceps tendon.

RE-EXAMINATION

On 29 April 2025, Mr. Younes attended a medical assessment with Medical Assessor Assem at the Personal Injury Commission medical suites located at 1 Oxford Street, Darlinghurst. He arrived unaccompanied.

Pre-accident medical history and relevant personal details

Mr Massoud Younes is a 64-year-old right-hand dominant man whose primary employment was with O'Brien Glass as a storeman for approximately 25 years. In 2001, while working as a storeman, Mr Younes sustained a lumbar spine injury after a manual handling incident. He was diagnosed as a disc lesion at the L4/5 level that was managed conservatively with physiotherapy.
At the time, Mr Younes also sustained a left ankle fracture after jumping off a forklift onto foam-rubbish material scattered on the warehouse floor. He has remained off work since 2001 or 2002 and assumed the role of full-time carer for his wife, who suffers from chronic anxiety and depression.
He denied any history of neck, shoulder, elbow, or hand injuries, surgeries, or significant complaints requiring treatment prior to the subject accident. He denied any previous workers’ compensation claims or third-party personal injury claims aside from the 2001 back injury that later subsided.

History of the accident

On 26 March 2021, Mr Younes was driving his Mazda 3 sedan with his wife as a front seat passenger on Stoney Creek Road, Hurstville when a vehicle travelling from an easterly direction attempted to merge aggressively into the slow-moving traffic. Without warning, the offending vehicle collided with the front right-hand side of Mr Younes’ vehicle, striking it near the front right wheel.
He was wearing a seatbelt restraint and the airbag facility was deployed. Although he could not clearly recall any direct impact with any part of his body within the cabin, he believed his right shoulder may have sustained a jarring injury. In addition, he sustained an injury to his left thumb that later resolved.
Emergency services, including the police and fire brigade, attended the scene. Mr Younes and his wife declined ambulance transport at the time, as they appeared to have no immediate life-threatening injuries. They were transported home from the scene by his wife’s nephew.

History of symptoms and treatment following the accident

Later that evening, Mr Younes began to experience worsening symptoms, including widespread body pain, bruising to his left thumb, and a burning sensation in his right hand, prompting him to attend Bankstown Medical Centre for medical review. At that initial consultation, his primary complaint was left thumb pain and bruising. An X-ray of the left hand was performed and showed no fracture or dislocation.
The healthcare providers on that occasion did not record complaints relating to the neck, back, shoulders, or elbows. Mr Younes later acknowledged that he was focused solely on his thumb, and he could not recall whether he had experienced symptoms in other areas such as the cervical spine, shoulders, or lumbar region.
He also recalled that additional X-rays were either requested or performed during those early visits; however, no contemporaneous radiological reports of imaging other than the left hand were available for review. He was prescribed analgesic medication but there was no formal injury management plan initiated at that stage.
Approximately six weeks after the accident, on 7 May 2021, Mr Younes presented to his GP, Dr Berlanty Salama, with complaints of bilateral elbow pain, neck pain, lower back pain, and numbness in both hands. He described difficulty raising his arms due to pain extending “from top to bottom” bilaterally.
Dr Salama referred him for physiotherapy and exercise physiology and ordered MRI scans of the cervical and lumbar spine. Contemporaneous physiotherapy notes documented symptoms involving the cervical spine, left thumb, and bilateral elbows, with numbness reported in both hands. Notably, there were no references to shoulder-specific complaints in these early allied health records.
Mr Younes was subsequently referred to orthopaedic surgeon Dr Vijay Maniam, who first assessed him in May 2021. In a later report dated 8 December 2021, Dr Maniam documented a musculoligamentous strain of the cervical spine with aggravation of pre-existing degenerative changes, as well as severe spinal canal stenosis at L4/5, with positive neural tension signs suggestive of pressure on the cauda equina. He also recorded complaints of bilateral elbow pain and numbness in both hands but did not refer to shoulder complaints.
An MRI of the cervical spine performed on 19 April 2021 revealed mild disc bulges at C4/5 and C5/6, and a left paracentral disc bulge at C6/7 causing mild foraminal narrowing. A lumbar spine MRI dated 29 June 2021 demonstrated severe spinal canal stenosis at L4/5, anterolisthesis of L4 over L5, and crowding of the cauda equina. A cervical spine X-ray taken on 1 April 2021 showed mild spondylotic changes. Collectively, these imaging findings were consistent with aggravation of pre-existing degenerative spinal disease.
On 30 August 2022, an ultrasound of the right elbow and forearm revealed a partial tear of the common extensor tendon, calcific tendinosis of the common flexor tendon, and a

full-thickness tear of the biceps tendon with retraction.
Medical Assessor Alexander Woo examined Mr Younes on 28 October 2022, concluding that the lumbar spine injury constituted a minor injury under the Motor Accident Injuries Act 2017, and therefore not compensable beyond statutory limits.
On 11 June 2024, Medical Assessor Phillip Truskett acknowledged that there was demonstrable pathology in both the right elbow and lumbar spine but attributed both conditions to pre-existing degenerative processes rather than the motor vehicle accident. He therefore assessed 0% permanent impairment in relation to the claimed injuries.

Current symptoms

Mr Younes describes intermittent neck discomfort, primarily located in the mid-cervical region, with radiation posteriorly into the upper back and shoulder girdles. The neck pain fluctuates in intensity and occurs “on and off” throughout the day without any clearly identifiable triggers. As the discomfort often travels from the base of his neck into both shoulders, he had difficulty in distinguishing whether the primary source of his shoulder symptoms originates from the cervical spine or from intrinsic shoulder pathology.
He also reports constant bilateral shoulder pain, rating the severity at 9/10 on the pain scale. He was unable to identify specific activities that reliably exacerbate or alleviate the shoulder symptoms. He has an associated restriction in shoulder motion.
With respect to his lumbar spine, Mr Younes reports constant lower back pain, which he rates at 9.5 to 10/10 in severity. The pain is most severe in the mornings and is aggravated by walking, prolonged standing, and other physical activities. He also describes on-and-off shooting pain into both legs, more pronounced on the right side. The radiation is characterised as a sharp, nerve-like pain travelling from the lower back through the buttocks and into the posterior thighs.
He is unable to sit or stand for prolonged periods. Walking is limited to 15-minute intervals. Prior to the accident, he was capable of walking for several hours without difficulty.
He lives with his wife and three of their four children in a property at Condell Park. He continues to be the primary carer for his wife. He does the cooking, light cleaning, and basic household chores. His adult children assist with heavier domestic chores. He takes Mobic or Panadol when needed.

Examination

Mr Younes was 171cm tall and weighed 103kg. He was informed at the time of the examination, not to engage in any manoeuvre beyond what he could tolerate, or which may cause harm or injury. All movements performed in today’s examination were active and voluntary.

Cervical Spine

He had a normal posture. On palpation there was no tenderness over the cervical spine. Cervical range of motion was normal in all planes except for rotation, which was symmetrically reduced to 3/4 of normal range bilaterally and accompanied by pain behaviours, including grimacing and vocalisation. There was no muscle spasm or guarding. The neurological examination was normal, with with normal power, tone, sensation and reflexes.

Lumbar Spine

Examination of the lumbar spine revealed mild tenderness over the lower lumbar region. Flexion and extension were reduced to approximately 2/3 of normal range. Rotation and lateral flexion were similarly reduced to 2/3 of normal range. There was no asymmetry of movement or spinal dysmetria. There was muscle spasm or guarding.
Neural tension signs were negative. Lower limb power, reflexes, and sensation were grossly intact.

Shoulders

On palpation, both shoulders were non-tender. Shoulder movements were variable on repeated testing. When this was brought to his attention, he explained the variability by noting that "today was a good day" and that his movement capabilities varied depending on the level of background pain.
The limitations observed appeared to be due to global upper limb discomfort rather than focal shoulder pathology. He was unable to localise his symptoms to any specific area in his shoulder or symptoms referred from the cervical spine. Active range of motion was as follows:

Movement	Right Shoulder	Left Shoulder
Flexion	130°, 150°, 140°	130°, 150°, 140°
Abduction	150°, 150°	150°, 110°
Adduction	20°, 20°	20°, 20°
Internal Rotation	80°	80°
External Rotation	50°	50°

Elbows

Examination of both elbows demonstrated no tenderness over the lateral or medial epicondyles. Range of motion at the elbows was normal bilaterally in flexion, extension, pronation and supination. There was no focal swelling or deformity.

Hands

There was no callus formation or wasting of the intrinsic hand muscles. Sensation, circulation, and grip strength were preserved bilaterally.

Determination

Cervical Spine

There is no evidence of any documented cervical spine symptoms, treatment, or imaging before the accident. A head-on collision with airbag deployment — is consistent with a whiplash-type injury to the cervical spine.
Contemporaneous records by Dr Salama, dated six weeks post-accident, document neck pain and numbness in both hands. These complaints were also recorded in early physiotherapy notes, which consistently referenced neck-related symptoms.
Radiological imaging was notable for mild disc bulges at C4/5 and C5/6, and a paracentral bulge at C6/7 causing mild foraminal narrowing, findings consistent with underlying degenerative changes but plausibly aggravated by trauma.
Given the absence of prior cervical complaints, the plausible mechanism of injury, and the early documented onset of symptoms, causation is accepted for the cervical spine injury as a direct consequence of the accident.

Bilateral shoulder symptoms

Mr Younes denied any prior history of shoulder injury, and there is no contemporaneous documentation of direct trauma to the shoulders in relation to the accident.
Although shoulder symptoms were mentioned in the Claim Form, there were no recorded complaints involving the shoulders in the early clinical records, including those of his general practitioner, physiotherapist, or treating orthopaedic surgeon, Dr Maniam.
Bilateral shoulder pain was first reported retrospectively during subsequent medicolegal assessments. Mr Younes was unable to consistently localise his symptoms to the shoulder joints or describe a pattern consistent with intrinsic shoulder pathology. Notably, the shoulder movement demonstrated during clinical examination was variable on repeated testing and appeared to arise from global upper limb discomfort, rather than a definable shoulder disorder or mechanical restriction secondary to cervical spine pain.
While he reported that neck symptoms occasionally radiated into the shoulders, clinical findings did not support a diagnosis of referred pain severe enough to cause functional limitation. There was no evidence of cervical muscle guarding or spasm, and both Medical Assessors Woo and Truskett had previously documented full, symmetrical shoulder range of motion.
Accordingly, the Nguyen principle (Nguyen v Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd [2011] NSWSC 351) does not apply. There is no clinical basis to assess shoulder impairment as a consequence of cervical spine injury, as there is no objective evidence that the neck pathology is functionally limiting shoulder motion.

Right elbow injury

There was no history of right elbow pathology before the accident. The mechanism of injury — including airbag deployment and possible bracing reaction during the impact — provides a plausible biomechanical explanation for elbow trauma.
Contemporaneous medical records, including GP and physiotherapy notes from May 2021, documented bilateral elbow symptoms. Although imaging was delayed, an ultrasound performed on 30 August 2022 identified a partial tear of the common extensor tendon, calcific tendinosis, and a full-thickness tear of the biceps tendon with retraction.
Given the early reporting of elbow symptoms, the consistent documentation, and the plausible mechanism of injury, causation is accepted for the right elbow injury as arising from the accident.

Left elbow

There is no history of left elbow complaints before the accident. The same biomechanical forces that affected the right side may plausibly have impacted the left upper limb.
Contemporaneous documentation from May 2021 does record left elbow symptoms, though these appear to have been less severe and not followed by further specialist assessment or imaging.
Given the initial reporting but lack of ongoing documentation or objective pathology, it is likely the left elbow injury was minor and transient. Causation is accepted for a mild soft tissue strain, but there is no evidence of significant or ongoing injury.

Lumbar spine

Mr Younes sustained a workplace-related lumbar spine injury in 2001, diagnosed as a disc lesion at L4/5. However, no ongoing treatment or complaints are documented in his GP records in the years preceding the accident.
Six weeks after the accident, Dr Salama and physiotherapy notes recorded new complaints of lower back pain, which persisted and were later corroborated by MRI findings of severe canal stenosis at L4/5, anterolisthesis, and crowding of the cauda equina.
The biomechanical forces of a head on collision — particularly compressive and flexion forces through the lumbar spine — are capable of aggravating underlying degenerative disease.
Given the absence of recent complaints before the accident, the mechanism of injury, and imaging correlates, causation is accepted for an aggravation of pre-existing lumbar spine pathology.

Assessment of permanent impairment

Cervical spine

He reported intermittent neck discomfort and demonstrated a symmetrical restriction in cervical rotation without any asymmetry or spinal dysmetria. There were no radicular complaints or focal neurological deficits on examination. His presentation is consistent with a DRE Cervicothoracic Category I, corresponding to 0% WPI (AMA 4, Table 70, p. 104).
Although Mr Younes reported that his neck symptoms sometimes radiated into the shoulders, clinical examination revealed that his observed limitations in shoulder movement were variable on repeated testing and arose from global upper limb discomfort rather than any intrinsic shoulder pathology or secondary mechanical restriction due to cervical spine pain.
Importantly, there was no muscle guarding or spasm in the cervical spine that would explain or contribute to a true limitation of shoulder motion. Furthermore, Medical Assessor Woo and Medical Assessor Truskett had documented a normal range of shoulder motion. For these reasons, the Nguyen principle (Nguyen v Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd [2011] NSWSC 351) is not applicable here.

Lumbar Spine

He reported persistent lower back pain with associated stiffness and intermittent radiation of discomfort into both lower limbs, more prominent on the right. Examination revealed symmetrical reduction in flexion, extension, and lateral flexion to approximately two-thirds of normal range. Given the presence of non-verifiable radicular complaints, he has a DRE Lumbosacral Category II, corresponding to a WPI of 5% (AMA4, Table 72, p. 110).

Right elbow

He reported ongoing right elbow discomfort. Examination revealed full range of motion without tenderness. An ultrasound dated 30 August 2022 confirmed a partial tear of the common extensor tendon, calcific tendinosis, and a full-thickness tear of the biceps tendon with retraction. Although motion was preserved, persistent symptoms associated with imaging-confirmed soft tissue injury support an impairment rating. He was therefore assessed by way of analogy (MAA Guidelines, paragraph 6.24,p 88). An analogous condition would be mild restriction in forearm pronation to 60 degrees giving 1% RUEI (AMA 4, Figure 35, p 41) or 1% WPI (AMA 4, Table 4, 3/20).

Left elbow

He reported no significant ongoing symptoms involving the left elbow. Examination findings were normal with full range of motion and no tenderness. There was no pathology identified on radiological imaging. His presentation is consistent with 0% WPI (AMA 4, Figure 32, p 40).

Combined Whole Person Impairment 6%

DETERMINATIONS

Diagnosis and reasons

For the reasons set out in Medical Assessor Assem’s examination report the Panel found that the accident caused injuries to all the referred body parts, except for a nexus between restricted shoulder range of motion and the cervical spine injury.
Summary of injuries referred by the parties:
·        elbows;
·        bilateral shoulders – supraspinatus tendinosis with overlying subacromial bursitis and bursal impingement on abduction. Full-thickness incomplete tear of the anterior and mid supraspinatus tendon;
·        cervical spine, and
·        lumbar spine.
The following injuries were not caused by the accident:
bilateral shoulders – supraspinatus tendinosis with overlying subacromial bursitis and bursal impingement on abduction. Full-thickness incomplete tear of the anterior and mid supraspinatus tendon.
The following injuries were caused by the accident:
·        right elbow - partial tear common extensor tendon on background of diffuse tendinosis;
·        lumbar spine - soft tissue injury;
·        left elbow, and
·        cervical spine.
The following injuries that have been caused by the accident have resolved:
· cervical spine - soft tissue injury, and
· left elbow.
The Panel found that the following injuries caused by the 26 March 2021 accident gave rise to permanent impairment:
· lumbar spine, and
· right elbow.

Permanent impairment table

Body Part or System

AMA Guides/ Guidelines References

(chapter/ page/table)

Permanent (YES/NO)

Current %WPI*

%WPI* from pre-existing OR subsequent causes

%WPI* due to accident

Lumbar spine

Table 72 on page 110

Yes

Right elbow

MAA Guidelines, paragraph 6.24,p 88 and AMA4, Table 4, 3/20

Yes

* %WPI = percentage whole person impairment or permanent impairment

Apportionment

All of the calculated impairment is the outcome of the accident.

Pre-existing/subsequent impairment

There was no pre-existing impairment.

PERMANENCY OF IMPAIRMENT

Permanent impairment is defined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) (AMA 4 Guides) (p 315) as follows:
“Permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment.
A permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment.”

Outcome

The entire Panel has considered Medical Assessor Assem’s examination report, evidence relating to the claimant’s condition and the parties’ submissions on this point.
The Panel has also considered the earlier certificates, the claimant’s treating doctors’ opinions and the claimant’s IME.
The Panel has given weight to its medical Members’ opinion and clinical judgment who, following a thorough consideration of the claimant’s medical history concluded that there was insufficient objective evidence to calculate any existing impairment at the date of the accident, which could be deducted in accordance with the relevant Guidelines.
The Panel is satisfied that the claimant suffered physical injury as a result of the accident, including rendering any referred asymptomatic conditions symptomatic, because the accident mechanism was capable of causing such injuries, and there were sufficiently contemporaneous complaints regarding the referred body parts.

CONCLUSION

The Panel has found that the degree of permanent impairment of the claimant that has resulted from the referred injuries caused by the accident is 6%.
Accordingly, the Panel revokes Medical Assessor Truskett’s certificate dated 11 June 2024 and issues a new certificate certifying that the degree of permanent impairment of the claimant resulting from the injuries caused by the accident is not greater than 10%.

[2025] NSWPICMP 710

15 September 2025