1. The Review Panel revokes the certificate of Medical Assessor Oates dated 7 December 2023.
2. The Review Panel finds that the following injuries caused by the accident and assessed by the Review Panel give rise to a total permanent impairment of 0%;

(a) cervical spine - strain - 0% whole person impairment (WPI);

(b) lumbar spine - strain - 0% WPI, and

(c) thoracic spine - strain - 0% WPI.

1. The Review Panel finds that the accident did not cause injury to the claimants left and right shoulders and his right sternoclavicular joint.
2. The Review Panel revokes the combined certificate dated 10 May 2024 and issues a new combined certificate determining that the following injuries caused by the motor accident give rise to a WPI assessment of 0%:

(a) certificate of this Review Panel at 0% WPI, and

(b) certificate of Medical Assessor Veerabangsa dated 4 January 2024 for assessment of injury to the claimant's head arising out of the accident at 0% WPI.

1. This is an application by Haitham Al Laimouni (the claimant) for review of a certificate of Medical Assessor Oates (the Medical Assessor) dated 7 December 2023.
2. The Medical Assessor had conducted an examination of the claimant for the purposes of determining his whole person impairment (WPI) arising out of his physical injuries.
3. The certificate was relied upon in a Combined Certificate, issued in accordance with

s 7.23 (8)(b) of the Motor Accident Injuries Act 2017 (the Act) on 10 May 2024. According to the Combined Certificate a total WPI of 7% was assessed. 4. The Medical Assessor found that the claimant's injuries as a result of the subject accident gave rise to a 7% WPI as follows:

(a) cervical spine v 0% soft tissue injury;

(b) lumbar spine - 5% soft tissue injury;

(c) right shoulder - 2% soft tissue injury, and

(d) umbilical hernia - 0% consequential injury.

1. The Medical Assessor determined that the following injuries caused by the motor accident had resolved and give rise to no assessable permanent impairment:

1. The following injuries were referred by the Personal Injury Commission (the Commission) for assessment:

(a) cervical spine injury;

(b) hernia injury;

(c) injury to left knee lumbar spine injury;

(d) injury to right sternoclavicular joint;

(e) injury to left and right shoulders;

(f) injury to middle back, and

(g) injury to upper back.

1. An injury to the claimant's head was separately reviewed by Medical Assessor Veerabangsa in his certificate of 4 January 2024. He found 0% WPI. The Review Panel (Panel) is not required to review this assessment.
2. At the commencement of this review, the claimant was legally represented however the claimant has subsequently become self represented.
3. The Panel had sought additional documentation from the claimant and since early February 2025 the Panel has been in receipt of messages from the clamant that he was obtaining this. Ultimately the claimant produced no new information or documentation despite messages that this would be lodged immediately. The Panel cannot wait indefinitely and in the interests of justice, now issue these reasons.

1. The parties have each presented their respective bundles of documents upon which they rely. The Panel have read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel or a Panel Member has not read it, in much the same manner as parties not referring to or not specifically relying on a document in their own bundle and submissions.
2. The fact that evidence is not referred to in these reasons does not mean it has been overlooked and nor is it required that each piece of evidence be mentioned - see WAEE v Minister for Immigration and Citizenship (2003) 75 ALO 630 at [46].The Panel is not required to "analyse every piece of information from every opinion contained in a document with which he [it] was provided" - see Farr v Insurance Australia Limited t/as NRMA Insurance Ltd [2014] NSWSC 1435 at [46]. The Panel has come to its own conclusion and has taken its own history.

1. The accident occurred on 22 March 2019. The claimant was approaching an intersection, facing a red light and he slowed down. As he was approaching the intersection, the traffic light turned green and he started moving forward. It had been raining and the road was wet. The insured car turned in front of him, possibly having passed through a red light. The claimant applied his brakes. He was unable to stop because it was a wet day and he collided with the other car. He injured his right side of his shoulder, right side of his neck. He was wearing a seatbelt. Notwithstanding the impact, the claimant was able to drive his car home.

1. Whilst this is a hearing de novo, the Panel notes that the claimant's submissions are only with respect to his left shoulder and right sternoclavicular joint.
2. Regarding the left shoulder, the claimant referred to the conclusion of the Medical Assessor when he said:

"The injury to left shoulder has resolved giving no assessable permanent impairment although there is some restriction of range of movement which was not limited by referred symptoms from elsewhere. I made a medical determination that the restriction was as a result of fear-avoidance behaviour and not the result of injury caused by the accident."

1. The claimant also referred to an earlier comment by the Medical Assessor when he said;

"The claimant presented with florid fear-avoidance behaviour. He was asked to demonstrate his best range of motion so that an accurate assessment of impairment could be made but nevertheless inconsistency remained with co-contraction and give way during power testing of upper and lower extremities. There was inconsistent range of movement between formal testing and informal observation of undressing and redressing.

This was brought to the claimant's attention but there was no reason given for the inconsistency apart from stating that he was in pain."

1. The claimant says that the Medical Assessor, when referring to the claimant presenting with florid fear-avoidance behaviour in relation to the testing of his upper and lower extremities, is inconsistent with how he treats his findings of fear-avoidance behaviour in relation to the claimant's left and right shoulders. In paragraph 30 of his certificate, under the sub-heading "Upper Limbs" the claimant says that the Medical Assessor finds the claimant's restricted range of movement in his right shoulder to be disproportionate to the extent of pathology demonstrable on investigations and yet still assesses the right shoulder using Part 3.lm of Chapter 3 of to the American Medical Association Guides to the Assessment of Permanent Impairment fourth edition (AMA 4).
2. However, the claimant says that in the same paragraph, when assessing the left shoulder, the Medical Assessor finds that the injury to the left shoulder has resolved giving no permanent assessment impairment and finds that the restriction of movement was as a result of fear-avoidance behaviour.
3. In support of this, the claimant says that the Medical Assessor failed to refer, in his certificate, to numerous references to the claimant's left shoulder being injured in the accident as follows;

(a) 29 August 2019 general practitioner (GP) referral to Dr McKechnie to neck pain referred to upper limbs;

(b) 2 October 2019 GP referral to Dr Al Khawaja re neck pain referred to upper limbs, back pain and lower limbs and left shoulder (Application p10.);

(c) 27 February 2020 GP referred to Dr Al Khawaja neck pain radiating to his upper limb, back pain radiating to his lower limbs and left shoulder pain started post a car accident (Application p 111);

(d) 30 March 2020 GP referral to Dr Guirgis re neck pain radiating to upper limbs, shoulder and back pain started after accident (Application p 91), and

(e) 3 January 2020 diagnostic request Dr Al Khawaja re severe neck pain arms pain. (Application p 135).

1. The claimant submits that the Medical Assessor ought to have accepted ongoing left shoulder symptoms.
2. Further, the claimant says that the Medical Assessor ought to have undertaken the permanent impairment assessment in accordance with Medical Assessment Guidelines (the Guidelines). The claimant notes the Guidelines refer to range of motion as an appropriate method of assessment with a goniometer. However, the claimant notes that the Guidelines stipulate that if there is any inconsistency then three separate measurements ought to be undertaken. The claimant notes that the Medical Assessor failed to take three separate measurements for the left shoulder as required.
3. In relation to the right shoulder, the claimant says that the Medical Assessor accepted that the claimant sustained soft tissue injury to the right and left shoulder, with subsequent development of severe restriction of range of movement in the right shoulder. Notwithstanding such diagnosis and acceptance of the severity of the right shoulder injury, the claimant says that the medical Assessor inexplicably discounted measurements taken with the goniometer which were largely consistent and instead assessed impairment by other means resulting in an assessment of 2% WPI. The claimant submits that the Medical Assessor has not explained his pathway of reasoning for determining a diagnosis of subsequent development of severe restriction of range of movement in the right shoulder yet proceeded not to assess the injury by range of motion method.
4. The claimant submits that this error is material to the assessment as had the Medical Assessor found that the claimant's complaints of his left shoulder were related to the motor vehicle accident, he could have assessed the impairment resulting therefrom which would have increased the total impairment from 7% WPI. Further, the claimant submits that had the Medical Assessor assessed the right and left shoulder by range of motion method, the assessment would have exceeded the threshold.
5. At paragraph 30 of his certificate, under the heading "Upper Limbs", the Medical Assessor found: "The injury to the sternoclavicular joint gives zero percent whole person impairment, as there is no history given or evidence available on the limited permitted clinical examination and file evidence of any persisting instability at the joint."
6. It is submitted by the claimant that the Medical Assessor has fallen into error in finding that there is no history given and no file evidence of any persisting instability of the joint.
7. The claimant submits that the Medical Assessor has failed to refer to the following relevant medical evidence, namely, the ultrasound of the right clavicular joint dated 7 June 2021 which showed the presence of moderate synovitis/active synovitis of the right sternoclavicular joint. It is submitted that the ultrasound does show persisting instability at this joint. The claimant submits that this error is material to the outcome of the assessment as had the Medical Assessor taken it into account it would have increased the WPI assessment of the right shoulder.

1. The insurer summarised and responded to the grounds for review submitted by the claimant as follows:

(a) an alleged failure to correctly apply the guidelines and AMA 4;

(b) an alleged failure to consider relevant medical evidence, and

(c) an alleged failure to provide sufficient reasons for the findings.

Ground 1: an alleged failure to correctly apply the Guidelines and AMA 4

1. The insurer referred to the claimant's submission that the Medical Assessor has failed to correctly apply AMA 4 and Guidelines, submitting that the Medical Assessor failed to take separate measurements of the claimant's left shoulder. The insurer submits that the claimant's position is incorrect, and, in support refers to page 8 of the Medical Assessor's certificate which displays range of motion testing for both shoulders as follows:

(measured with the elbows at the sides, as he could not demonstrate sufficient abduction to test rotation in the usual position)

1. The insurer specifically highlights the following from the Medical Assessor's certificate:

"The claimant presented with florid fear avoidance behaviour. He was asked to demonstrate his best range of motion so that an accurate assessment of impairment could be made, but nevertheless inconsistency remained with co- contraction and give way during power testing of upper and lower extremities. There was inconsistent range of movement between formal testing and informal observation of undressing and redressing.

This was brought to the Claimant's attention but there was no reason given for the inconsistency, apart from stating that he was in pain.

'The injury to left shoulder has resolved, giving no assessable permanent impairment, although there is some restriction of range of movement, which was not limited by referred symptoms from elsewhere. I made a medical determination that the restriction was as a result of fear-avoidance behaviour and not the result of injury caused by the accident."

**"**Injury to the right shoulder has restricted range of movement which is disproportionate to the extent of pathology demonstrable on investigations, making range of movement an unreliable method for use to assess permanent impairment_"._

1. The insurer says that It is open to a Medical Assessor to modify their findings in the event medical evidence does not verify that an impairment of a certain magnitude exists.
2. The insurer submits that the Medical Assessor has not erred in his application of the AMA 4 or the Guidelines in assessing the claimant's shoulders. The insurer seems that the Medical Assessor has provided an explanation why he found a 0% impairment of the claimant's left shoulder, and why he made a finding of 2% for the right shoulder. Both conclusions were the culmination of the Medical Assessor's physical examination of the claimant, his review of the treating evidence before him, and an application of his medical expertise. The insurer says that the Medical Assessor clearly stated that these inconsistencies were put to the claimant, and his response is recorded within his certificate.
3. The insurer says that the function of the Medical Assessor's examination is for him to give his own opinion on the medical question referred, by applying his own medical experience and expertise. The insurer submits that the Medical Assessor has done exactly this, and there is no material error.
4. The insurer addressed the claimant's submission that the Medical Assessor "inexplicably discounts measurements taken down in with the goniometer which were largely consistent" when examining the claimant's right shoulder. The insurer submits that this is M10572337-23 incorrect. The insurer says that on page 14 of his certificate, the Medical Assessor provided a thorough explanation for the discount applied to the measurements taken. The insurer says that the Medical Assessor noted a diagnosis of "subsequent development of severe restriction of range of movement in the right shoulder", however the Medical Assessor went on to state that the restricted range of motion was unreliably disproportionate when compared to the pathology demonstrable on investigations. To this end, the insurer noted the following:

(a) an X-ray of the right shoulder taken on 7 November 2019 revealed mild to moderate degenerative change.

1. Regarding osteoarthritis of the right acromioclavicular joint, referred to in the claimant's application, the insurer notes;

(a) an X-ray of the clavicles and sternoclavicular joints taken on 31 May 2021 revealed mild degenerative osteoarthritis in the right acromioclavicular joint, and

(b) an MRI of the right shoulder taken on 17 August 2021 revealed advanced degenerative changes.

1. Against the context of above radiological investigations, the insurer has referred to the following;

(a) the claimant had a history of right shoulder pain in 2016, as noted on a GP referral dated 20 March 2018.

(b) On 28 April 2021, the claimant's GP reported that the claimant's right sided upper extremity range of motion was full but appeared to cause pain. Left sided upper extremity testing was normal.

(c) In a report dated 20 January 2022 Dr Teychenne, neurologist, stated the claimant "could not elevate the right shoulder" but that "he didn't have any obvious weakness in the sternomastoid muscles". Dr Teychenne went on to state that it was difficult to determine if the claimant was presenting genuinely.

(d) In her report of 6 April 2022, physiotherapist Ms Stewart was unable to consistently record range of motion in the claimant's right shoulder.

(e) In his report of 30 August 2022, Dr Wallace found that the claimant had exhibited poor effort on range of movement testing at his bilateral shoulders. Dr Wallace also reported that the claimant did not make any complaint of current pain in both shoulders.

1. The insurer submits that it was open to the Medical Assessor to conclude, as he did, that the claimant's testing results did not align with the pathology revealed on radiological investigations, particularly noting that several other medical professionals reached similar conclusions.

Ground 2: an alleged failure to consider relevant medical evidence

1. The insurer refers to the claimant's submission that the Medical Assessor erred by way of a failure to consider relevant medical evidence, alleging the Medical Assessor failed to refer to "numerous references to the claimant's left shoulder being injured in the motor vehicle accident". The insurer submits that the Medical Assessor has not erred in this manner.
2. The insurer says that the Medical Assessor is not required to adjudicate amongst competing expert opinions, nor necessarily agree with other medical opinions. The insurer submits that Medical Assessors are explicitly not required to answer to every medical opinion that may differ from their own.
3. The insurer also refers to the submission of the claimant that the Medical Assessor failed to consider evidence of injury to his left shoulder against the context of a 0% WPI finding due to pain behaviour. The insurer reiterated that the Medical Assessor accepted that the claimant sustained an injury to the left shoulder as a result of the subject accident however that the left shoulder had recovered and that any residual restriction in the shoulder was as a result of fear-avoidance behaviour.
4. The insurer submits that the Medical Assessor's conclusion is in line with the documentary evidence before him, and submits the following in support of this:

(a) on 28 April 2021, the claimant's GP reported that the claimant had full range of motion in the left upper extremity.

(b) In a report of Dr Casikar dated 17 February 2022, the doctor did not report any ongoing left shoulder complaint. The claimant reported numbness in the left hand, however Dr Casikar was unable to attribute the unusual nature of this symptom to any injury.

(c) In his report of 30 August 2022, Dr Wallace found that the claimant had exhibited poor effort on range of movement testing at his bilateral shoulders. Dr Wallace also reported that the claimant did not make any complaint of current pain in both shoulders.

(d) On 6 September 2022 the claimant was examined by Dr Sheikh, pain specialist. The claimant did not report any ongoing symptoms or injury to the left shoulder.

(e) The claimant did not report any ongoing left shoulder pain during an examination on 11 October 2022 by Dr Keller. He also noted that the claimant's range of motion testing in both shoulders was "grossly inconsistent". Dr Keller also stated "there was a much greater range when putting his jacket on and when lying down on the examination couch and putting his arms behind his back".

1. The insurer referred to the claimant's submission that the Medical Assessor fell into error in finding that there was no evidence of any persisting instability of the right sternoclavicular joint.
2. The insurer submits that the Medical Assessor has not erred in this finding. The insurer relies on clause 6.21 of the Guidelines which it says unequivocally states that WPI assessment should only consider the impairment as it is at the time of the assessment. The Medical Assessor stated:

"The injury to the sternoclavicular joint gives 0% whole person impairment, as there was no history given or evidence available on the limited permitted clinical examination and file evidence of any persisting instability at the joint."

1. The insurer noted the Medical Assessor's use of the phrase "persisting instability". The insurer says the claimant referred to an ultrasound of that joint from 2021, a period of 2.5 years before the examination. The insurer submits that the Medical Assessor made a conclusion based on his findings during the examination in accordance with clause 6.21. The insurer says that the Medical Assessor simply did not find any evidence of persisting instability in the joint. The insurer says that the Medical Assessor has not erred as he has reached a conclusion that was supported by the evidence and his examination, but that differed from the claimant's own opinion.

Ground 3: an alleged failure to provide sufficient reasons for the findings

1. The insurer noted that the claimant submitted that the Medical Assessor failed to provide "any reasons for coming to the conclusion that the injury to the claimant's left shoulder has resolved or provide his path of reasoning to that conclusion". The claimant also submitted that the Medical Assessor did not provide an explanation for determining a diagnosis of "subsequent development of severe restriction of range of movement in the right shoulder".
2. In response, the insurer submits that the Medical Assessor has provided sufficient reasons for his findings. The insurer submits that the Medical Assessor has directly explained his findings, including reductions, in relation to both shoulders. Furthermore, the Medical Assessor stated that he could not engage the range of motion testing method for the right shoulder, due to the claimant's pain behaviour. The Medical Assessor then went on to explain his path of reasoning for the 2% WPI finding:

"It is assessed by analogy from Table 19, mild impairment from joint crepitation, giving 10% impairment of the joint and Table 18 noting acromioclavicular joint at the shoulder gives 25% upper extremity impairment. 10% of 25% is 2.5% rounded to 3% upper extremity impairment, equivalent to 2% whole person impairment".

1. The insurer specifically referred to the opinion by Dr Keller dated 11 October 2022, who said the claimant did not suffer "any injuries to the musculoskeletal system or other physical organs at the time of the accident". The insurer referred to Dr Keller saying that given the "minimal force involved in the accident and the lack of physical evidence to confirm objective findings", there was no impairment of the claimant's musculoskeletal system.
2. The insurer says that the minimal force of the accident described by Dr Keller is supported by the reports of Professor Anderson dated 27 March 2022 and 15 June 2022. The insurer submits that Professor Anderson said the accident was a minor sideswipe collision and there was "no risk of injury in a crash producing such low levels of force".

1. The insurer submits that the claimant has a pre-existing degenerative condition in his right shoulder that is unrelated to the accident, and the claimant sustained a soft tissue injury to his right shoulder in the subject accident, which does not attract any assessable impairment. The insurer says this is supported by the following contemporaneous clinical evidence:

(a) the claimant did not report an injury to his right shoulder in his claim form dated 21 May 2019.

(b) An X-ray taken of the claimant's right shoulder on 7 November 2019 revealed "mild to moderate degenerative osteoarthritis of the acromioclavicular joint".

(c) An MRI taken on 17 August 2021 revealed:

"...there is a large inferior paralabral cyst with an underlying inferior labral tear. There is thickening of the axillary recess with minor oedema at the rotator interval suggestive of chronic inflammatory changes. There is tendinopathy within the proximal intra articulation of the long head of biceps with features of intrasubstance injury. Advanced degenerative changes are noted at the acromioclavicular articulation with underlying subacromial/subdeltoid bursitis. Tendinopathy changes in the supraspinatus. There is partial thickness of articular surface tears within the infraspinatus and subscapularis.".

(d) In his report dated 17 February 2022, Dr Casikar, neurosurgeon, diagnosed a "soft tissue to the right shoulder".

(e) In his report dated 30 August 2022, Dr Wallace, orthopaedic surgeon, said "There is no objective medical evidence that Mr Al Laimouni suffered any injury at his right shoulder as a result of the index motor vehicle accident". The insurer says that Dr Wallace accordingly said there was no impairment arising from the right shoulder.

1. The insurer submits that the claimant did not injure his left shoulder in the subject accident and there is no assessable impairment in this region. The insurer says that this is supported by the following contemporaneous clinical evidence:

(a) the claimant did not report an injury to his left shoulder in his claim form dated 21 May 2019.

(b) In his report dated 11 October 2022, Dr Keller observed an inconsistency between the formal and informal examination of the claimant's left shoulder:

"On the left side [shoulder] he demonstrated flexion 60 degrees, extension 20 degrees, adduction 40 degrees, abduction 80 degrees, internal and external rotation 90 degrees. The range of motion in both shoulders was grossly inconsistent. There was a much greater range when putting his jacket on and when lying down on the examination couch and putting his arms behind his back."

(c) Dr Keller did not assess an injury to the left shoulder as a result of the subject accident.

1. The insurer submits that the claimant sustained only a soft tissue injury to the cervical spine as a result of the subject accident, and this has since resolved.
2. The insurer submits that any ongoing impairment arising from the cervical spine is unrelated to the accident and is a result of a pre-existing degenerative condition. The insurer says that this is supported by the following clinical evidence:

(a) the referrals in the A2Z Medical Centre treatment reports and referrals list a history of neck pain with radiculopathy since August 2016.

(b) On 25 March 2019, three days after the accident, the claimant's GP, Dr Alsayed, observed full range of motion in the claimant's cervical spine.

(c) On 26 March 2019, Dr Alsayed recorded the claimant's neurological examination remained 'normal' but then reported "neck pain with radiculopathy" although no radicular symptoms were specified.

(d) An MRI of the cervical spine taken on 17 June 2019 identified degenerative findings:

"Multilevel degenerative changes... moderate canal narrowing at C6/7. Multilevel foraminal narrowing that is most pronounced bilaterally from C3/4 to C6/7, with potential multilevel exiting nerve root impingement. Consideration could be given to perineural injection at the level of dominant radiculopathy".

(e) Dr Wallace said the claimant's "cervical spinal symptoms are due to pre-existing multilevel degenerative cervical spondylosis aggravated by his previous injury as a result of an assault on 23 August 2016".

(f) Dr Wallace went on to diagnose a "Minor musculoligamentous strain cervical spine - now resolved" and an "Aggravation of pre-existing multilevel degenerative cervical spondylosis - now resolved". Accordingly, the insurer submits, Dr Wallace said there was no resulting impairment arising from the cervical spine.

1. The insurer noted that the claimant's cervical spine range of motion had apparently declined over three years following the subject accident, despite having a reasonably full range of motion in the weeks and months following the accident. The insurer submitted that this decline was unrelated to the accident. The insurer says that this is supported by the following clinical evidence:

(a) in a report dated 28 April 2021, Dr Alsayed recorded a reasonably full range of motion in the claimant's cervical spine. He observed flexion, extension, left and right lateral flexion to 45 degrees, and left and right rotation to 80 degrees.

(b) In a report dated 22 January 2021, the claimant's treating neurologist, Dr Teychenne, reported that "Formal testing appeared to be significantly weaker than general movement such as when he was dressed and walking."

(c) In his report dated 11 October 2022, Dr Keller recorded the range of motion in the claimant's cervical spine as "0 (degrees) flexion, extension or rotation in the cervical spine and 10 degrees lateral flexion." Dr Keller observed the claimant breaching this range of motion when putting on his jacket and moving around when not being formally examined. Dr Keller said the claimant did not sustain any musculoskeletal injuries in the subject accident and assessed no impairment arising out of the cervical spine, or any other region.

(a) the claimant sustained a soft tissue injury to the cervical spine in the accident, which does not attract any assessable impairment, and

(b) any ongoing impairment is the result of a pre-existing, degenerative condition.

(a) The insurer submits that the claimant did not injure his thoracic spine in the subject accident and there is no assessable impairment in this region. The insurer says this is supported by the following clinical evidence:

(i) Dr Alsayed did not mention an injury to the thoracic spine in his report dated 28 April 2021;

(ii) Dr Casikar and Dr Wallace did not diagnose any injury to the thoracic spine mas a result of the subject accident, and

(iii) Dr Keller said the claimant did not sustain any musculoskeletal injuries in the subject accident and assessed no impairment arising out of the thoracic spine.

1. The insurer submits that any impairment arising out of the claimant's lumbar spine is unrelated to the accident and is a result of a pre-existing degenerative condition. The insurer says this is supported by the following clinical evidence:

(a) an MRI of the lumbar spine taken on 17 June 2019 revealed:

"There is a mild scoliosis of lumbar spine convex to the left. There is grade I anterolisthesis of L4/L5 secondary to advanced bilateral L4-5 facet joint osteoarthrosis. There is mild degenerative disc disease at T12-L1, L1-2, L4-5 and L5-S1 levels. At L4- 5 level, the combination of disc bulge, anterolisthesis and ligamentum flavum thickening results in moderate to severe central canal stenosis. There is potential for compression of the emerging L5 nerve roots on both sides. Moderate to severe bilateral foraminal stenosis is also present at this level with potential for irritation of the exiting L4 nerve roots on both sides."

(b) An MRI of the lumbar spine taken on 25 September 2020 revealed "mild bilateral facet joint arthrosis at L4- 5 and L5-S1. Degenerative disc disease and spondylosis throughout the lumbar spine is noted with small insignificant central annular bulges at L4-5 and 5-S1".

(c) In a report dated 20 January 2021, the claimant's treating neurologist, Dr Teychenne, reported the claimant did not "have any marked pain over the lumbar spine on movement of the lumbar spine".

(d) Dr Casikar and Dr Wallace did not diagnose any injury to the lumbar spine as a result of the subject accident.

(e) Dr Keller said the claimant did not sustain any musculoskeletal injuries in the subject accident and assessed no impairment arising out of the lumbar spine.

1. The insurer submits the claimant did not sustain a head injury in the subject accident that would attract any assessable impairment.
2. The insurer submits the claimant has not provided any expert evidence in support of an injury to the head that would give rise to any impairment.
3. The insurer says the clinical records of Dr Alsayed in the claimant's Application do not refer to a head injury.

1. The insurer says the claimant has not provided any expert evidence in support of vertigo, balance or hearing loss as a result of the accident that would give rise to any impairment.
2. The insurer submits that any hearing loss is pre-existing and unrelated to the accident, and does not attract any assessable impairment. The insurer says that this is supported by the following clinical evidence:

(a) on 30 June 2009 the claimant attended Dr Ghabrial regarding bilateral sensorineural hearing loss from working in a noisy environment for five years. An audiogram revealed a "moderate degree of bilateral sensorineural hearing loss".

(b) The referrals in the A2Z treatment reports and referrals list a history of vision flashes, headaches and loss of smell since August 2016.

(c) On 4 October 2016, the claimant was referred to Dr Kokkinos, neurologist, for treatment of the claimant's "headache and memory disturbance since he was assaulted 2 months ago and hit on his occipital area".

1. The insurer submits that any injury to the sternoclavicular joint is unrelated to the accident. The insurer says that this is supported by the following clinical evidence:

(a) the claimant did not report an injury to his sternum or sternoclavicular joint in his claim form dated 21 May 2019.

(b) Dr Alsayed did not record an injury to the sternum or sternoclavicular joint in the certificate of capacity dated 21 May 2019.

(c) An X-Ray report of the clavicles and sternoclavicular joints dated 1 June 2021 revealed "both sternoclavicular joints are normal. Both clavicles are normal. There is mild degenerative osteoarthritis of the right acromioclavicular joint. The sternum is normal."

(d) An MRI of the sternoclavicular joint taken on 3 March 2022, three years after the subject accident, revealed a "Lump grown over the last few weeks... Features are in keeping with moderate to severe degenerative change involving the right sternoclavicular joint associated with minor anterior subluxation."

(e) The claimant has not provided any expert evidence in support of an injury to the sternum that would give rise to any impairment.

1. The insurer submits the claimant did not sustain an injury to the left knee in the subject accident. This is supported by the following contemporaneous clinical evidence:

(a) the claimant did not report an injury to his left knee in his claim form dated 21 May 2019.

(b) The claimant's GP, Dr Alsayed, did not record an injury to the left knee in the certificate of capacity dated 21 May 2019.

(c) The claimant has not provided any expert evidence in support of an injury to the left knee that would give rise to any impairment.

1. The insurer submits that the claimant did not sustain an umbilical hernia injury in the subject accident as this condition was pre-existing and unrelated to the accident. The insurer says this is supported by the following clinical evidence:

(a) the claimant did not report a hernia injury in his claim form dated 21 May 2019.

(b) The claimant's GP Dr Alsayed, did not record a hernia injury in the certificate of capacity dated 21 May 2019.

(c) In the past medical history section of his report dated 11 October 2022, Dr Keller reported "He had a left inguinal hernia surgically repaired around 2007 or 2008 with mesh and states he has no lifting limit from this."

(d) In the past medical history section of his report dated 30 August 2022, Dr Wallace reported "He has had no medical problems. He has had a [inguinal] hernia repair."

1. The insurer submits that based on the above, the claimant's injuries do not exceed the 10% WPI threshold.

1. Medical Assessor Oates provided a certificate dated 7 December 2023.
2. His diagnosis was a soft tissue injury to cervical spine with aggravation of a pre-existing symptomatic cervical spine injury dating from an assault in 2016.
3. He noted that there was an umbilical hernia which was present clinically and on an ultrasound performed in 2021.
4. There was also a left knee injury which presumably was a soft tissue injury, although he said that this had resolved.
5. Medical Assessor Oates said that there was a lumbar spine soft tissue injury.
6. There was an injury to the right sternoclavicular joint which the Medical Assessor said was presumably a subluxation.
7. There was also soft tissue injury to the right and left shoulders, with subsequent development of severe restriction of range of movement in the right shoulder.
8. The Medical Assessor said that was no evidence of injury to the thoracic spine.
9. Regarding causation, the Medical Assessor said that the accident was a cause of cervical spine, left knee, lumbar spine, right and left shoulder, including sternoclavicular joint injuries, as these injuries were mentioned in the claim form and medical certificate, in the GP record of 2 September 2019 and GP record of April 2021, and the GP letter of 2 September 2019.
10. The umbilical hernia was not caused directly by the accident but by increased abdominal pressure from straining at defaecation due to the constipating effect of codeine-containing analgesics taken for pain arising from musculoskeletal injuries caused by the accident. This was not a pre-existing condition based on the evidence available.
11. The Medical Assessor said that there was no specific reference in the contemporaneous medical evidence to a thoracic spine injury. The claimant had stated that his injuries were to the neck, the shoulders, lower back and both knees.
12. The Medical Assessor assessed WPI as follows:

1. The total WPI was 7%.
2. Dr Casikar provided a report dated 17 February 2022 for the insurer but submitted by the claimant. He said:

"The neurological examination of the upper limbs was very unsatisfactory. Mr Al Laimouni's responses were very difficult to comprehend. I could not make any neurological opinion about the state in the upper limbs because of the way he was responding. The interpreter also tried very hard to try to explain to him this was not possible...

His symptoms are predominately due to soft tissue injury to the shoulder. However, his various other symptoms are difficult to explain and neurological examination was non-diagnostic...

1. Dr Casikar said the diagnosis was a soft tissue injury to the neck, back and rotator cuff pathology in both shoulders. There was a contusion on the front of the left knee. The injuries had left ongoing pain, stiffness, weakness and loss of function. Dr Casikar said that the claimant had not reached maximum medical improvement at the time of examination and that an assessment of impairment would be more realistic in about six months.
2. Dr Wallace assessed the claimant on 13 August 2022 and Dr Keller on 11 October 2022. They were both of the view that he suffered soft tissue injuries and they had recovered.
3. Dr Keller assessed the claimant at 0% WPI. Dr Keller said that because of evidence of minimal force involved in the accident and lack of physical evidence to confirm objective findings of lasting physical injury attributable to the accident, there was no rateable impairment of the musculoskeletal system in accordance with the assessment guidelines.
4. Dr Bodel provided a report of 14 November 2023. He said the diagnosis was that of soft tissue injury to the neck, back and with rotator cuff pathology in both shoulders. There was a contusion on the front of the left knee. Dr Bodel said that the injuries had left ongoing pain, stiffness, weakness and loss of function.
5. Regarding WPI, Dr Bodel said there was a diagnosis related estimate (DRE) Cervicothoracic Category II level of assessable impairment in accordance with the description in Table 73 on Page 3/110 of AMA 4. This gave a 5% WPI.
6. There is also a DRE Lumbosacral Category II level of assessable impairment in accordance with the description in Table 72 on Page 3/110 of AMA 4. Dr Bodel said that there was asymmetry of movement and guarding but no clinical sign of radiculopathy and a 5% WPI rating.
7. Dr Bodel said that there was a rateable restriction of shoulder movement in both shoulders. This was assessed using Figure 38 on Page 43, Figure 41 on Page 44 and Figure 44 on Page 45 of AMA 4. The degree of the recorded restriction of movement constituted a 13% upper extremity impairment in each shoulder and that converted to an 8% WPI for the right upper extremity and an 8% WPI for the left upper extremity.
8. The combined WPI assessment by Dr Bodel was 23%.
9. A report of Dr Al Khawaja, neurosurgeon, dated 8 October 2020 noted that the claimant started to experience lower back pain and neck pain within a few hours of the accident. He reported that the symptoms increased in severity and the claimant was getting numbness in both hands, the left more than the right. He had right leg pain at the S1 distribution.
10. The claimant complained of swelling in his hands. He had neck pain episodes in 2006 but this was treated conservatively and he said he had no pain before the accident. There was moderate limitation of neck movements on all sides, weak grip in both hands and his hands were moderately swollen.
11. The medical records from the A2Z Medical Centre, from 28 March 2007 to 28 September 2021 note the following;

(a) an entry dated 20 September 2016 states the claimant was tired, had changes in his sleep, early morning awakening, depressed mood, low self-esteem, irrational fear, panic attacks. Mood changes - depression and was given advice with counselling and reassurance.

(b) An entry dated 28 September 2016 stated the claimant was lethargic and tired, had changes in sleep, early morning awakening, depressed mood, low self-esteem, irrational fear and panic attacks. It stated he has depression. It notes that he had visual disturbances and abnormal hearing bilaterally.

(c) An entry dated 4 October 2016 lists the same psychiatric symptoms and states that he had mood changes - depressed.

(d) An entry dated 10 October 2016 listed the same psychiatric symptoms. He had mood changes - depressed. It stated he was given counselling and reassurance. It also stated that he had neck pain with radiculopathy, right shoulder injury, was missing a tooth on the left hand side and had broken teeth and is unable to work.

(e) The entry dated 25 October 2016 stated he had an unexplained severe headache which started after an assault and he injured his head. He possibly had a loss of smell and a fracture. He also had neck pain.

1. These entries follow an assault on the claimant on 23 August 2016.
2. An entry dated 19 January 2017 stated the claimant had been complaining of the following symptoms in the previous few weeks.

(a) difficulty concentrating and remembering details and making decisions;

(b) fatigue and decreased energy;

(c) feelings of guilt, worthlessness and/or helplessness;

(d) feelings of hopelessness and/or pessimism;

(e) insomnia, early morning wakefulness or excessive sleeping;

(f) irritability, restlessness;

(g) loss of interest in activities or hobbies;

(h) overeating;

(i) persistent aches or pains, headaches, cramps or digestive problems, and

(j) persistent sad, anxious or empty feelings but no thoughts of suicide.

1. The past medical history at the beginning of the medical records lists the following symptoms:

(a) 2010 osteoarthritis;

(b) 2016 nightmares;

(c) 2016 smell loss;

(d) 2016 vision - flashes;

(e) 2019 back pain - buttock L2/3, L3/4;

(f) 2019 motor vehicle accident with neck pain, back pain, shoulder pain and headaches;

(g) 2019 neck pain with radiculopathy C2/3, C3/4, C4/5, C5/6 and C6/7;

(h) 2019 right active synovitis of the sternocleidomastoid;

(i) 2020 adjustment disorder, chronic with depressed and anxious mood due to car accident;

(j) 2020 hypercholesterolemia;

(k) 2020 hyperthyroidism;

(l) 2020 neck pain with radiculopathy;

(m) 2021 back pain;

(n) 2021 depression, and

(o) 2021 post-traumatic stress disorder.

1. These are all listed as the active conditions. The inactive condition is listed as 2018 inguinal hernia repair left with mesh.
2. The report by Dr Davydenko, radiologist, dated 1 November 2016 of an MRI scan of the brain states no evidence of an acute intracranial abnormality or mass, minimal to bilateral ethmoidal and axillary sinusitis is suggested.
3. The clinical history is of "severe unexplained headache post injury. ? lntracranial pathology, ?fracture".
4. A report by Dr Azimi-Tabrizi, radiologist, of an MRI scan of the lumbar spine dated 17 June 2019 reports a clinical history of back pain radiating to lower limbs with the right limb. The conclusion was a mild scoliosis of the lumbar spine convex to the left. There was Grade 1 anterolisthesis of L4 on L5 secondary to advanced bilateral L4/L5 facet joint arthrosis.
5. There was mild degenerative disc disease at T12/S1, L1/S2, L4IL5 and L5/S1.
6. The L4/L5 level was a combination of a disc bulge, anterolisthesis and ligamentum flavum thickening which resulted in moderate to severe central canal stenosis. There was said to be potential for compression of the emerging L5 nerve roots on both sides. Moderate to severe bilateral foraminal stenosis is also present at this level with potential for irritation of the exiting L4 nerve roots on both sides.
7. A discharge referral of St George Hospital Emergency Department stated that the claimant was discharged on 23 August 2016 having presented that day with an alleged assault. He sustained a left medial orbital wall blowout fracture with blood extending into his left maxilla.
8. A report by Dr Kuo of a CT scan of the facial bones, sinuses and brain on 23 August 2016 states the claimant had a history of alleged assault being hit on the occiput with a gun and kicked in the left orbital area. It reports that the CT scan of the brain showed no fractures, no midline shift, no intracranial haemorrhage or extra-axial collection.
9. A CT scan of the facial bones showed a blowout fracture of the left orbit with herniation of the medial rectus muscle and orbital fat into the adjacent left middle ethmoidal air cells. There were blood products in the left maxillary sinus. There was soft tissue thickening of the left superior and inferior palpebrae.
10. There were minimally displaced fractures involving the nasal bones with overlying soft issue thickening.
11. A report by Dr Bardouh stated that the claimant presented for consultation after an accident which he suspected had caused some visual fluctuation, red eyes and discomfort. Aided vision in both eyes was 6/6. Eye pressure was within normal limits. A view of the anterior eye did not reveal any indicators of blood trauma. The corneas were clear in both eyes and had some mild dry eyes. Posterior retina showed healthy optic nerves and the macula are healthy.
12. A report by Dr Ishrat Ali, psychiatrist, dated 7 October 2016 states that the claimant reported he was assaulted in Belfield by various people on 22 August 2016 when he collapsed a was taken to St George Hospital.
13. A Certificate of Capacity/Certificate of Fitness by Dr Aiman Alsayed from 31 October 2019 to 9 January 2020 lists the claimant's injuries as a result of the motor accident as disc prolapse C2/3, C3/4, C4/5, C5/6, C6/7, L2/3, L3/4 and depression/anxiety.
14. A report by Mr Metry, psychologist, dated 11 February 2020 stated the claimant was suffering from Major Depressive Disorder.

1. 17 June 2019 MRI Cervical spine. The conclusion states: Multilevel degenerative changes with moderate canal narrowing at C6/7, multilevel foraminal narrowing that is most pronounced bilaterally from C3/4 to C6/7 with potential for multilevel exiting nerve root impingement.
2. 17 June 2019 MRI lumbar spine. The conclusion states: There is a mild scoliosis of lumbar spine convex to the left. There is Grade I anterolisthesis of L4/L5 secondary to advanced bilateral L4/5 facet joint osteoarthrosis. There is mild degenerative disc disease at T12/L1, L1/2, L4/5 and L5/S1 levels. At L4/5 level, the combination of disc bulge, anterolisthesis and ligamentum flavum thickening results in moderate to severe central canal stenosis. There is potential for compression of the emerging L5 nerve roots on both sides. Moderate to severe bilateral foraminal stenosis is also present at this level with potential for irritation of the exiting L4 nerve roots on both sides.
3. 17 November 2019 X-ray right shoulder. A five view X-ray examination of the right shoulder was performed. There was mild to moderate degenerative osteoarthritis of the acromioclavicular joint. There was no, evidence of a fracture or dislocation of the right shoulder. There was mild to moderate down sloping of the acromion process. There was no radiopaque soft tissue calcifications overlying the right humeral head.
4. 18 August 2020 ultrasound of both wrists. Clinical history: pain, weakness and numbness. ?carpal tunnel syndrome. Incidental note is made of ganglion cysts along with radial volar margin of the radiocarpal components of both wrists which are asymptomatic and of doubtful significance. The ultrasound examination of both wrists was normal. There was no evidence of median nerve entrapment/carpal tunnel syndrome in either wrist.
5. 25 September 2020 MRI lumbar spine. The comment reported: There was mild bilateral facet joint arthrosis at L4/5 and L5/S1. Degenerative disc disease and spondylosis throughout the lumbar spine was noted with small insignificant central annular bulges at L4/5 and 5/S1. There was no central stenosis or foraminal narrowing noted at any level.
6. 31 May 2021 X-ray clavicles and sternoclavicular joints. Sternoclavicular joints were normal. Both clavicles are normal. There was mild degenerative osteoarthritis of the right acromioclavicular joint.
7. The sternum was normal. There was no presternal or retrosternal soft tissue swelling. The impression states: Essentially normal conventional X-ray examination of the clavicles and both sternoclavicular joints. An ultrasound examination of the right sternoclavicular joint was strongly recommended for further assessment if clinically indicated. Alternatively, an MRI examination of the sternoclavicular joints could be performed for further assessment of the claimant's lump, if clinically indicated.
8. 07 June 2021 ultrasound of right sternoclavicular joint. Clinical history: lump for investigation. Report stated there was moderate to marked thickening of the synovium of the right sternoclavicular joint associated with mildly increased blood flow located within the thickened synovium of the right sternoclavicular joint. The impression stated findings were consistent with the presence of moderate synovitis/effect of synovitis of the right sternoclavicular joint at the site of the region of interest.
9. 17 August 2021 MRI right shoulder. There was a large inferior paralabral cyst with an underlying inferior labral tear. There was thickening of the axillary recess with minor oedema at the rotator interval, suggestive of chronic inflammatory changes. There was tendinopathy within the proximal intraarticular portion of the long head of biceps with features of intrasubstance injury. Advanced degenerative changes were noted at the acromioclavicular articulation with underlying subacromial/subdeltoid bursitis. Tendinopathy changes in the supraspinatus. There was partial thickness of articular surface tears within the infraspinatus and subscapularis.
10. 3 March 2022 MRI right sternoclavicular joint. Clinical history states Lump grown over the last few weeks. There is subchondral sclerosis and cortical irregularity involving the right sternoclavicular joint associated with moderate synovial thickening, small volume joint effusion and minor anterior subluxation of the right clavicular head with respect to the manubrium. Overall features were suggestive of osteophytic change. No discrete collection. The left sternoclavicular joint was enlocated, and normal in appearance. The conclusion stated: Features are in keeping with moderate to severe, degenerative change involving the right sternoclavicular joint associated with minor anterior subluxation.
11. There is a report from the Vocational Capacity Centre dated 6 April 2022. The results of this assessment did not identify any significant dysfunction as a result of the injuries sustained in the subject accident. However, the claimant demonstrated significant functional disabilities, which he attributed to the accident, but which were said to be likely to be longstanding. The claimant was also noted as suffering significant psychological distress with the diagnosis of major depressive disorder and post-traumatic stress disorder after a physical assault in August 2016, for which he received treatment with a psychologist during 2017.
12. It was noted that medical records from Dr Alsayed's practice indicated that the claimant was still consulting doctors regarding neck and mental health problems in December 2018, more than two years after the assault in Belfield in 2016. Against this though, the claimant had reported that all symptoms related to the assault had ceased by January 2017 and he was able to live a normal life. As this information is inconsistent with information included in the medical records, it was noted that the accuracy of the history he reported could not be relied upon.
13. In the application for personal injury benefits dated 21 May 2019, two months post-injury, the claimant listed physical injuries. They included injuries to the head, neck, back and left shoulder. No mention was made of any injury to the right shoulder.
14. In a request for an MRI study of the right sternoclavicular joint dated 3 March 2021, Dr Alsayed reported a "lump that has grown in the last few weeks." The request was made two years post-injury and the nexus with the accident was reported to be likely tenuous, particularly given the degenerative changes evident and the claimant's long history of body building.
15. Dr Wallace provided a report for the insurer dated 30 August 2022. He said that at worst, the claimant suffered a minor musculoligamentous strain at his cervical spine which would have settled within a month of his injury on 22 March 2019.
16. Dr Wallace also referred to a report which the insurer had relied on by a mechanical engineering expert report of Prof Anderson dated 27 March 2022.
17. Prof Anderson had concluded that on analysis of the accident, "The collision was mild in respect to crash forces and general risks of the injury. The change and speed of the van produced by the collision was likely to have been below 3kph producing forces on the van below 1G".

"There is no risk of injury in crashes producing such low levels of force."

1. Following on from this, Dr Wallace said that the claimant suffered a significant injury at his cervical spine as a result of a previous assault on 23 August 2016. He required neurosurgical review at that time. Dr Wallace noted that the claimant was reviewed by his local medical officer on multiple occasions in 2018 with the last being on 14 December 2018 complaining of ongoing cervical spinal symptoms.
2. Dr Wallace said that the claimant had evidence of significant multilevel degenerative cervical spondylosis on MRI investigation carried out in September 2019, 2.5 years prior to the accident on 22 March 2019.
3. Dr Wallace said that the claimant's minor cervical spinal injury sustained in accident of 22 March 2019 had resolved. He said that his current cervical spinal symptoms were due to pre-existing multilevel degenerative cervical spondylosis aggravated by his previous injury as a result of an assault on 23 August 2016.
4. Dr Wallace said that the claimant complained of no current pain at his bilateral shoulders and in view of the mechanism of injury described by Prof Anderson, there was no objective medical evidence that the claimant had suffered any injury at his lumbar spine in the accident.
5. Dr Wallace said that there was no objective medical evidence that the claimant suffered any injury at his right shoulder as a result of the accident. He said that the mechanism of injury described and on the expert mechanical engineering report, the conclusion was that the level of force involved in the accident was so low as to be associated with no risk of injury.
6. Dr Wallace assessed WPI at 0%.
7. In Prof Anderson's report of 27 March 2022, he said that although the damage extended across the front of the insured vehicle, the damage did not appear to have included much lateral or longitudinal deformation of the vehicle structure. The damage was said to be highly consistent with what is often seen in side-swipe crashes where the damage can extend over some length of the vehicle but is not associated with high levels of momentum transfer. In his opinion, it was reasonable to describe the damage as the result of a heavy scrape across the front of the vehicle rather than an impact that would have involved a significant level of energy and momentum transfer.
8. Below is a photograph of damage reported to be on the insured vehicle.

1. Two photographs below show damage to the claimant's car. The Panel does not know when these photographs were taken and it is not confirmed that the damage represents the damage suffered in the accident although Prof Anderson's report is prepared on this basis.

1. Prof Anderson said that it was his opinion that the circumstances were that the insured car was heading straight across the intersection and that the claimant's van scraped across the front of the insured's car. He said that the interaction was sufficient to deflect the van to the position of rest in which it was photographed.
2. Prof Anderson said that the collision was mild in respect of crash forces and general risks of injury. The change in speed of the van produced by the collision was likely to have been below 3kmph, producing forces on the van below 1 g. Prof Anderson concluded that there is no risk of injury in crashes producing such low levels of force.

1. The claimant was examined by Senior Medical Assessor Cameron on 3 December 2024. His report follows.

On 3 December 2024 Mr Al Laimouni was re-assessed by Dr Cameron at Ultimo. He was accompanied by his brother, Mr Husam Al Laimouni, and Ms El Brihi, Arabic interpreter.

The reasons for the review panel re-assessment were explained.

Mr Al Laimouni is a 59-year-old man who lives at Belfield. He said that he had relocated to a ground floor apartment. He said that it had been adapted to his disabilities.

Mr Al Laimouni is divorced. His brother lives in Canberra. He said he has sisters and nephews who live in Sydney. There is a history of an assault in 2016.

At the time of the motor vehicle accident Mr Al Laimouni said that he was working as an interior designer, decorator and shop fitter.

On 23 March 2019 Mr Al Laimouni was the driver of a van. A vehicle turned in front of him and there was an impact on the front on the passenger side from the other vehicle. No police or no ambulance attended.

Mr Al Laimouni made comments about the occupants of the other vehicle and subsequent investigations.

Mr Al Laimouni said his vehicle was drivable and, with difficulty, he drove home. He contacted his general practitioner Dr Alsayed because he had significant pain. Dr Alsayed said that he could not see Mr Al Laimouni on that day.

Mr Al Laimouni said that Dr Alsayed did a home visit assessment for him the next day. He said that there was a second consultation at Dr Alsayed's office two days after the accident. Mr Al Laimouni said that his symptoms at that time were neck pain, back pain and shoulder pain, right worse than left.

Mr Al Laimouni has had continuing symptoms. He has experienced gradually increasing disability. He said he is not able to return to work. He said that his driving was for limited distances only.

Mr Al Laimouni said he had numbness in both hands which comes and goes but it was mostly present. Mr Al Laimouni said his neck movements were restricted as a result of neck pain. He wore a cervical collar. He said when the collar is not on at home there are noises from his neck.

Mr Al Laimouni said he had pain felt in both shoulders. The right side was worse than the left.

Mr Al Laimouni said he had low back pain. He said as a result he cannot bend and cannot kneel. He said that he had pain in both legs. He wears a lumbar support.

Mr Al Laimouni said he had help from his family for showering and other aspects of personal care.

Mr Al Laimouni said he feels that he is a different person. He was previously physically active and lifted weights and this is now impossible.

Mr Al Laimouni said he has been psychologically distressed. He had considered returning to Syria to try and find a new wife as he is divorced but he is now unable to consider that.

Mr Al Laimouni said that his walking is limited. He has also had infections in the fingernails on both hands. Mr Al Laimouni is driving short distances only.

The general practitioner is now Dr Alsayed at Lakemba. Current medications are desvenlafaxine, ezetimibe, Largactil 25 mg at night, celecoxib, rabeprazole, Panadeine Forte, Lyrica, thyroxine and vitamins.

Mr Al Laimouni said he had weight loss. He said the recent MRI had shown major changes in his left shoulder.

There was an MRI of the left shoulder from 22 November 2024 which showed small tears in the supra and infraspinatus in the insertional regions. It said there was biceps tendinopathy. The report said that there were findings 'suggestive of adhesive capsulitis'.

Mr Al Laimouni was concerned about his condition and was talkative. He spoke in Arabic.

Mr Al Laimouni has prominent pain complaints and he had non consistent movements as a result of pain. The presence of pain markedly and variably restricts movements at multiple body regions.

At the cervical spine there was markedly and symmetrically reduced range of motion (to 30% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present. Nerve tension signs were negative.

At both shoulders there was inconsistent movement that Mr Al Laimouni said was due to variable pain. The maximum observed movements at the right shoulder were flexion 40 degrees, extension 30 degrees, abduction 50 degrees, adduction 30 degrees, external rotation 70, internal rotation 70. At the left shoulder the maximum observed movements were flexion 90 degrees, extension 30 degrees, abduction 70 degrees, adduction 30 degrees, external rotation 80 degrees, internal rotation 70 degrees. When asked about the variability Mr Al Laimouni said that there was pain from the shoulders that was restricting him and he said that it was getting worse with time.

There was a full range of motion at other upper extremity joints.

There were no neurological abnormalities in the upper extremities.

Circumferences of the upper extremities were right 25cm and left 25cm.

At the thoracic spine there was markedly and symmetrically reduced range of motion (to 40% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present.

There is a prominent right sternoclavicular joint which is significantly subluxed.

At the lumbar spine there was markedly and symmetrically reduced range of motion (to 30% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present. Nerve tension signs were negative.

There was a full range of motion at both knees. There was no crepitus or instability.

There was a full range of motion at other lower extremity joints.

There were no neurological abnormalities in the lower extremities.

Circumferences of the lower extremities were right 39cm and left 38cm. This is consistent with limb dominance.

Mr Al Laimouni has a large number of pain complaints. As a result, he finds it difficult to move multiple parts of his body. For this reason, some injuries are assessed by analogy.

The neck injury (injury to the cervicothoracic spine) is assessed with reference to the Diagnosis Related Estimate method from Chapter 3.3h of AMA4. Mr Al Laimouni has 'no significant clinical findings' with reference to this spinal region, and therefore DRE Cervicothoracic Category I (0% WPI) is the appropriate evaluation. There are no symptoms or signs, that are currently present, that justify assessment of DRE II in this spinal region. Specifically, no atrophy, no muscle spasm, no muscle guarding, no dysmetria were present, while non-verifiable radicular complaints were not present. Reflexes were within normal limits, nerve tension signs were negative and there was no weakness or loss of sensation.

The lumbar spine injury (injury to the lumbosacral spine) is assessed with reference to the Diagnosis Related Estimate method. Mr Al Laimouni has 'no significant clinical findings' with reference to the lumbosacral spine, and therefore DRE Lumbosacral Category I (0% WPI) is the appropriate evaluation. There are no symptoms or signs, that are currently present, that justify assessment of DRE II in this spinal region. Specifically, no atrophy, no muscle spasm, no muscle guarding, no dysmetria were present, while non-verifiable radicular complaints were not present. Reflexes were within normal limits, nerve tension signs were negative and there was no weakness or loss of sensation.

Due to pain, movements of this shoulder were inconsistent. In this regard the Motor Accident Guidelines, clause 6.40 are noted: 'The medical assessor must utilise the entire gamut of clinical skill and judgment in assessing whether or not the results of measurements or tests are plausible and relate to the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears not to verify that an impairment of a certain magnitude exists, the Assessor should modify the impairment estimate accordingly, describing the modification and outline the reasons in the impairment evaluation report'. It is, in the judgment of the assessor, not appropriate to rely on the measured range "of motion in this case.

The clinical information does not show that there are major significant pathological changes present in this shoulder. If there was an assessment of permanent impairment it would be made by analogy and the impairment would be equivalent to mild crepitation (Section 6.24 of the Motor Accident Guidelines) and see Table 19 page 59 AMA4 Guides) at the acromioclavicular joints (see Table 18, page 58 AMA4 Guides) and would be 10% of 25% UEI, which rounds to 3% UEI and converts to 2% WPI.

However, there were pre-existing degenerative changes at the right shoulder and at the sternoclavicular joint. The imaging findings are not related to the motor accident.

Due to pain, movements of this shoulder were inconsistent. In this regard the Motor Accident Guidelines, clause 6.40 are noted: 'The medical assessor must utilise the entire gamut of clinical skill and judgment in assessing whether or not the results of measurements or tests are plausible and relate to the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears not to verify that an impairment of a certain magnitude exists, the Assessor should modify the impairment estimate accordingly, describing the modification and outline the reasons in the impairment evaluation report'. It is, in the judgment of the assessor, not appropriate to rely on the measured range of motion in this case.

The clinical information does not show that there are major significant pathological changes present in this shoulder. Therefore the assessment of permanent impairment could be made by analogy and the impairment would be equivalent to mild crepitation (Section 6.24 of the Motor Accident Guidelines) and see Table 19 page 59 AMA4 Guides) at the acromioclavicular joints (see Table 18, page 58 AMA4 Guides) and therefore would be 10% of 25% UEI, which rounds to 3% UEI and converts to 2% WPI.

However, the claimant was driving his van and as far as the Panel is aware, he was wearing his seatbelt. The impact could explain injury to the claimant's right shoulder but not how the left shoulder injury might arise. This is particularly so as the accident described by Prof Anderson seems to have been a sideswipe rather than a direct collision.

It is not considered that the claimant would have suffered an injury arising out of the accident to his left shoulder noting both the mechanism of injury, the opinion of Prof Anderson and the delay in reporting symptoms concerning the left shoulder.

With reference to Table 7, page 247 AMA4 Guides there is no assessable impairment because there is no 'palpable defect in supporting structures of the abdominal wall'.

Pre-accident the claimant had suffered from an inguinal hernia but this is unrelated to the disability of an umbilical hernia.

Therefore the total assessed permanent impairment is 0% WPI."

1. The Panel adopts the report of Senior Medical Assessor Cameron.

1. The Guidelines identify the test for causation in cls 6.6 and 6.7.[1]
2. The approach in cl 6.6 of the Guidelines requires a medical and a non-medical assessment station the non-medical edge is by reference, test of causation. Concerning that issue, the Panel must determine causation by the application of legal notion of causation.

1. In Ackling v QBE Insurance (Aust) Ltd,[2] Johnson J indicated that the task of a Review Panel in assessing whether an injury was caused by the relevant accident is "a practical one". His Honour also observed that a review panel will derive practical assistance from the Guidelines when undertaking the task of assessing causation.[3]
2. The Guidelines in clauses 6.6 and 6.7 are not a statement of some of the legal principles needing to be applied in respect of causation. The legal principles in respect of causation must be applied, including section 5D of the Civil Liability Act (CLA). This requires a detailed analysis about whether the claimant's subsequent complaints of injury arose as a consequence of the subject accident. The non-medical approach requires an approach in accordance with Varga v Galea [2011] NSWCA 76 at (9) that the accident was a necessary condition of the harm - see also Warth v Lafsky [2014] NSWCA 94.
3. At common law, causation is a question of fact, to be approached in a common sense manner, in which the "but for" test plays an important role: March v E & HM Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 (at [5l5]-[546]) per Mason CJ (Toohey and Gaudron JJ agreeing).
4. Section 5E of the CLA provides that in determining liability for negligence, the defendant always bears the onus of proving, on the balance of probabilities, any fact relevant to causation.
5. Campbell J in Owen v Motor Accidents Authority (NSW),[4] adopted Justice Johnson's approach with a caution touching upon the CLA:

"Given that the task of the Medical Review Panel in determining the causation question is not solely a medical determination within the expertise of the assessor's constituting the Panel, the position has, with respect, been aptly put by Johnson J in Ackling at p 500 [87] that the Assessors will derive practical assistance from this part of the Permanent Impairment Guidelines. But it is well to emphasise that 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 Civil Liability Act 2002, s 5D. (See s 3B(2)) of the CLA."[5]

1. The two-step process in s 5D of the CLA takes into account the previous position at common law. In Wallace v Kam [2013] HCA 19 it was held that a determination about causation involves two questions. The first question is a question of historical fact as to how a particular harm occurred and the second question is about whether legal responsibility for that particular harm occurring in that way should be to be attributed to a particular person. The Court held that the determination under s 5D(1)(a) involved nothing more or less than the application of a "but for" test. The Court noted at (16);

"...that is to say, a determination in accordance with section 5D(1)(a) that negligence was a necessary condition of the occurrence of the harm is nothing more or less than a determination on the balance of probabilities that the harm that in fact occurred would not have occurred absence the negligence".

1. Following Justice Campbell and his comments in Owen, s 5D of the CLA must be considered when assessing causation.
2. Section 5D of the CLA provides:

(1) A determination that negligence caused particular harm comprises the following elements:

(a) that the negligence was a necessary condition of the occurrence of the harm ('factual causation), and

(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ('scope of liability')."

1. Accordingly, there are two elements to address when assessing causation under s 5D(1):

1. Making these assessments of "factual causation" and "scope of liability" involves making value judgments.[8]
2. In Briggs v IAG Limited t/as NRMA Insurance[10] Harrison AsJ considered an application for judicial review of medical certificate issued by a Review Panel involving the application of s 1.6 of the Act. Section 1.6 of the Act refers to the definition of causation in the Glossary at page 314 of the AMA 4. This is in relation to the assessment of permanent impairment as in the same terms as cls 6.6 and 6.7.
3. In Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance [2021] NSWSC 804 Justice Walton set aside the decision of a Medical Review Panel. The issues to be determined involved applying the definition of "minor injury" (now referred to as threshold injury") and involved a question of causation in respect of an amputated toe.
4. In Kinchela the correct principles to apply relating to causation were discussed as set out below:

"[38] The second defendant's task was not to answer the question of whether there was any contemporaneous evidence, or corroborative evidence, to support an injury to the right 2nd toe, but whether the accident contributed to the right 2nd toe infection, avulsion of the nail and ultimate right 2nd toe amputation. By focussing only on whether there was a contemporaneous record of complaint in the clinical notes or the ambulance notes, the actual question it was required to consider was overlooked - did the motor vehicle accident materially contribute to the right 2nd toe amputation?

[39] The second defendant fell, therefore, into the type of error identified in Owen v Motor Accidents Authority of NSW (2012) 61 MVR 245; [2012] NSWSC 650 at [51]- [52]; Bugat v Fox (2014) 67 MVR 150; [2014] NSWSC 888 ('Bugat'); AAI Ltd t/as GIO v McGiffen (2016) 77 MVR 348; [2016] NSWCA 229 ('McGiffen'). The error identified is in treating the absence of a contemporaneous complaint or report of injury as determinative of the issue of causation. Associate Justice Harrison cited the decision in Bugat with approval in Briggs. Her Honour said at [64]-[65]:

[64] In Bugat, RS Hulme AJ held that the lack of contemporaneous evidence cannot be determinative of causation. His Honour stated at [31]-[32]:

'[31] One of the pivotal questions for the panel was whether the injuries of which the plaintiff complained had been caused (or materially contributed to) by the motor accident she alleged. To that question the presence or absence of contemporaneous evidence of injury was relevant but not determinative in circumstances where there was other evidence, in particular the plaintiff's claim form made but 15 days later, the remarks of Dr Hor in his report of 13 July 2011, and the plaintiff's statements which the certificate discloses were made to the panel to the effect that at the time of the accident she suffered "pain in her neck going out to both shoulders".

[32] While I accept that, as an administrative decision-maker, the panel's reasons should not be subjected to "minute and detailed textual criticism in the hope of finding something on which to base an argument" [Allianz Australia Insurance Ltd v Motor Accidents Authority (NSW) (2006) 47 MVR 46, [2006] NSWSC 1096 at [36]] in expressing themselves the way they have, the panel have clearly shown that they have regarded what they perceived as the absence of contemporaneous evidence as determinative on the issue of causation. In doing so they erred, the error being one apparent on the face of the record.'

[65] In McGiffen, the Court of Appeal held at [64] - [65]:

'[64] The question that the review panel was required to address was not simply whether there was any contemporaneous evidence of complaint about an injury to the lumbar thoracic spine. It included whether Mr McGiffen's lumbar thoracic spinal injury was causally related to the 'gait derangement', itself caused by the accident. That is, was the accident a contributing cause of a lumbar thoracic spinal injury by reason of the gait derangement caused by the accident.

[65] In deciding causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury to the thoracic spine the review panel only partially addressed the question posed by s 58(1)(d). For that reason, the decision recorded in the panel's certificate must be treated as a purported and not real exercise of its statutory function under s 58(1)(d), leaving that function unexercised, and the Authority and the panel liable to the relief granted by the primary judge for jurisdictional error.'

[40] The second defendant failed to apply the correct test of causation as set out in the relevant Guidelines informed by s 5D of the Civil Liability Act 2002 (NSW) and the common law. As result, the second defendant failed to apply the appropriate legal test in order to discharge its jurisdictional function."

1. In Briggs v IAG Limited trading as NRMA Insurance [2022] NSWSC 372, Wright J, regarding causation and the issues to be addressed, said;

"67 The second ground of review concerned the second review panel's approach to the issue of causation. It was submitted that the panel applied an erroneous test in relation to causation and thus failed to exercise its jurisdiction.

1. As to whether the motor vehicle accident trauma was a cause of a 'left posterolateral annular tear' with 'mild disc desiccation' shown on Mr Brigg's MRI test results, the second review panel concluded that causation had not been established because:

(1) '[a]t present, causation cannot be determined by medical imaging, unless there are sequential studies, either side of a motor vehicle accident and within a short time period', and Mr Briggs only had post-accident MRI results;

(2) 'a delamination may not fall within the definition of a tear'; and

(3) the defect may not be the source of his pain and disability'.

1. The substance of the reasoning was that since there could be no scientific certainty that the L4/5 left posterolateral annular tear with mild disc desiccation was caused by the accident based on medical imaging and there was a possibility that the injury was not a tear and may not have been what led to Mr Brigg's pain and disability, causation had not been established.
2. 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."'

1. 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.'

1. 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].
2. The second review panel did not address the question of whether on the balance of probabilities the motor vehicle accident caused the annular tear even though there might be no scientific certainty. Furthermore, the second review panel's reasoning did not reflect the approach to determining causation in cll 6.6 and 6.7 of the Guidelines, which in my view is consistent with the legal principles I have outlined.
3. The present case is not one where medical science established that there was no possible connexion between the motor accident and Mr Brigg's relevant injuries. From the material available, the second review panel accepted that the motor accident in this case could have caused or contributed to Mr Brigg's L4/5 left posterolateral annular tear. Indeed, the panel expressly accepted that:

'the plaintiff was involved in relatively severe front-end collision. The medical and biomechanical literature supports the conclusion that spinal injuries with resulting pain and disability can arise from this type of trauma.'

1. This being so, it was necessary for the panel to consider whether the motor accident did cause or contribute to Mr Brigg's condition. This required, not a consideration of material derived as a result of an internet search for 'all past and recent high-quality research articles pertaining to MRI imaging of the lumbar spine, with a focus on injury, degeneration and pain', but rather a consideration of the material referred to in cl 5.6 of the Guidelines, namely all the evidence available to the panel including all relevant findings derived from:

(1) a comprehensive, accurate history, including pre-accident history and pre-existing conditions;

(2) a review of all relevant records available at the assessment;

(3) a comprehensive description of the injured person's current symptoms;

(4) a careful and thorough physical examination; and

(5) diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.

1. In Mr Briggs's case that would include, without attempting to be exhaustive:

(1) Mr Briggs's age, circumstances and relevant medical history at the time of the motor accident, including whether there was any previous history of lumbar spine pain;

(2) the particular nature and extent of the accident and the forces that would have been operative on Mr Briggs as a result of the accident; and

(3) Mr Briggs's circumstances and relevant medical history including the MRI results and results of other medical examinations and testing, after the motor accident.

1. In light of all that material and in accordance with cll 6.6 and 6.7 of the Guidelines, the panel should then have made 'a non-medical informed judgment' as to whether it was likely that the motor accident caused or contributed to Mr Briggs's injury in question".
2. The Panel must ask itself whether the accident materially contributed to the claimant's physical injuries as referred to it by the Personal Injury Commission.
3. The Panel is satisfied that on the balance of probabilities, the motor accident caused injury to the claimant which has given rise to the development of injury to his head, his cervical spine, his thoracic spine and his lumbar spine, The Panel is not satisfied that the accident has caused injury to the claimant's left and right shoulders and his right sternoclavicular joint.
4. The insurer relies on a report of Prof Anderson dated 27 March 2022. Prof Anderson has attached several photographs to his report which are referred to earlier in these reasons. The damage to the insured vehicle is primarily to the right rear of the van and the damage to the claimant's car appears to be predominantly to the front left side of the car.
5. Prof Anderson said that it was his opinion that the claimant's car scraped across the front of the insured's van. Prof Anderson said that the collision was mild in respect of crash forces and general risks of injury. He said that the change in speed of the van produced by the collision was likely to have been below 3kmph reducing forces in the van below 1g.
6. The accident occurred on 22 March 2019. The claimant completed his claim form on 21 May 2019. In the claim form, the claimant noted his injuries as follows

(a) Head;

(b) Neck;

(c) left shoulder;

(d) back, and

(e) psychological/psychiatric.

1. The claimant made no complaint in his claim form about any injury to his right shoulder, thoracic spine, left knee and right sternoclavicular joint. Similarly, no record of complaints to these body areas were recorded by the claimant's GP.
2. The claimant first had an X-ray of his right shoulder on 17 November 2019, seven months after the accident. This showed mild to moderate degenerative osteoarthritis of the acromioclavicular joint
3. If the claimant suffered an injury to his right and left shoulders of the nature complained of, in the opinion of the Panel this would have been immediately painful and likely to be reported.
4. There are pre-existing degenerative changes at the right shoulder and at the sternoclavicular (not acromioclavicular) joint. The imaging findings are not related to the motor accident. There is inconsistency.
5. In a request for an MRI study of the right sternoclavicular joint dated 3 March 2021, Dr Alsayaed reported a "lump that has grown in the last few weeks." The request was made two years post-injury and the nexus with the accident was reported to be likely tenuous, particularly given the degenerative changes evident and the claimant's long history of body building.
6. It is the sternoclavicular joint that is subluxed and there is no evidence that the joint was injured in the motor accident. The symptoms occurred two years after the accident and causation is not established.
7. With the lumbar and thoracic spines, the Panel notes that while Senior Medical Assessor Cameron reported that there was a markedly and symmetrically reduced range of motion. however, there were no significant clinical findings. The Panel notes that restriction in range of motion at the lumbar and thoracic spines and the cervical spine is common in association with non specific pain. The restriction is symmetrical and this is consistent with DRE I. None of the differentiators for DRE II were present.
8. Regarding the claimant's complaint of injury to his lumbar spine and cervical spine, his middle and upper back, his left and right shoulders including his right sternoclavicular joint the Panel is of the finding that whilst the impact of the collision, accepting the opinion of Prof Anderson, was not likely to generate sufficient forces to cause serious injury, some injury could nevertheless have occurred.
9. The Panel notes the conclusion of Prof Anderson that the impact was of the nature of a mild sideswipe collision and that there was no risk of injury in a crash producing such low levels of force. There is no other evidence refuting this conclusion.
10. The Panel must consider whether, with the claimant's complaints, the disability is causally related when there was little or no complaint about some areas of disability for six months post-accident.
11. The Panel is mindful that a lack of reported complaint should not preclude a conclusion that this condition arose from the accident.
12. The Panel must also ask itself in considering whether the accident contributed to the claimant's physical injuries as referred to it by the Personal Injury Commission, whether the claimant's condition arises because of contribution by the accident, and whether the accident materially contributed to that condition and need for treatment.
13. On the balance of probabilities, can it be said that the injuries said to have been suffered by the claimant but not complained of in some instances for several months post accident, were caused by the accident? The Panel is not satisfied that this is the case, for the reasons provided above, concerning injuries to the claimants left and right shoulders, his lumbar spine and his right sternoclaviciar joint.
14. Would the impairment have occurred, if not for the accident? The Panel notes that the claimant was the victim of an assault which occurred in 2016, before the accident. The claimant suffered injuries from that assault, but these were primarily not physical injuries apart from having neck pain and injuries to his head as well as a right shoulder injury as noted within GP clinical notes of 10 October 2016.
15. The Panel is not satisfied that on the balance of probabilities, the motor accident caused injury to the claimant which has given rise to the development pain in his right shoulder and left shoulders, and the development of an umbilical hernia.
16. The Panel is not satisfied that the accident was a contributing cause to the development of disability to the aforementioned areas. However, the level of disability has not been significant in any event, as evidenced by the examination results of Senior Medical Assessor Cameron.
17. With respect to the claim of the claimant that he suffered an umbilical hernia as a consequence of the accident, at the time the claimant was examined by Senior Medical Assessor Cameron, there was no assessable impairment. No palpable defect in supporting structures of the abdominal wall could be detected. In any event, the Panel is not satisfied that any injury to the claimant could have caused an umbilical hernia.
18. The Panel is also not satisfied that, in light of the conclusion of Prof Anderson, the nature of the impact was such that it could have caused injuries to the claimant of such a nature that he would have required strong analgesic medication which might ultimately have given rise to an umbilical hernia in the manner discussed by the Medical Assessor.
19. The Panel must consider would this injury have occurred if not for the accident? The answer is possibly, and possibly not. The occurrence of an umbilical hernia is a gradual process however the Panel is not satisfied that the nature of the impact and limitations of injuries following that could have caused a need for medication of the nature complained of by the claimant.

1. The Panel is satisfied the claimant was involved in a motor vehicle accident on 22 March 2019 which did not involve significant force as evidenced by the report all Prof Anderson.
2. The Panel is satisfied that as a result of the accident the claimant injured his cervical spine, lumbar spine and thoracic spine.
3. The Panel is not satisfied that complaints of injury not made contemporaneously at the time of the accident are causally related.
4. The Panel assesses the claimant as having 0% WPI.

1. The Panel revokes the certificate of Medical Assessor Oates dated 7 December 2023.
2. The Panel finds that the following injuries caused by the accident and assessed by the Panel give rise to a total permanent impairment of 0%;

(a) cervical spine - strain - 0% WPI;

(b) lumbar spine - strain - 0% WPI, and

(c) thoracic spine - strain - 0% WPI.

1. The Panel finds that the accident did not cause injury to the claimant's left and right shoulders and his right sternoclavicular joint.
2. The Panel revokes the combined certificate dated 10 May 2024 and issues a new combined certificate determining that the following injuries caused by the motor accident give rise to a WPI assessment of 0%:

(a) certificate of this Panel at 0% WPI, and

(b) certificate of Medical Assessor Veerabangsa dated 4 January 2024 for assessment of injury to the claimant's head arising out of the accident at 0% WPI.

[1] Causation is defined in the Glossary at page 316 of the American Medical Association Guides 4th edition (AMA 4 Guides).

"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:

(a) The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.

(b) The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination."

"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."

[2] [2009] 75 NSWLR 482; [2009] NSWSC 881.

[3] At [87]. Justice Johnson was then referring to the predecessors to clauses 6.5 - 6.7 of the Motor Accident Guidelines, being clauses 1.7 - 1.9 of the Permanent Impairment Guidelines.

[4] [2012] 61 MVR 245; [2012] NSWSC 650.

[6] See s 5D(1)(a) of the CLA - this is the statutory restatement of the "but for" test (see Adeels Palace Pty Ltd v Moubarak [2009] 239 CLR 420; [2009] HCA 48 at [45]) i.e. but for the negligent act or omission, would the harm have occurred?

[7] See s 5D(1)(b) of the CLA. See Adeels Palace at 42; Wallace v Kam [2013] 250 CLR 375; [2013] HCA 19 at [12].

[8] There is a conflict between s 5D and the Guidelines. Section 5D requires the use of the "but for" test and the Guidelines state that while the "but for" test may be useful in some cases, it "is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes."9

[10] [2020] NSWSC 1318.