MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claimant's review of Medical Assessment Certificate (MAC) under section 7.26; permanent impairment dispute; referred injuries include cervical spine, thoracic spine, lumbar spine, both shoulders, and consequential injury to the right ankle; claimant involved in prior and subsequent motor accidents; previous injuries to the cervical spine and lumbar spine; subsequent injuries to the cervical spine and right shoulder; original assessment of permanent impairment of 0%; re-examination by the Review Panel; Held - MAC revoked; permanent impairment assessed at 7%; subsequent injury to the right ankle not related to the motor accident.

Issued under s 7.23(1) of the Motor Accident Injuries Act 2017

The issue determined by the Review Panel is whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.

1. The Review Panel revokes the certificate of Medical Assessor Alexander Woo dated

10 November 2023. 2. The Review Panel issues a new certificate determining that the following injuries caused by the motor accident give rise to a permanent impairment that is not greater than 10% (7%): * cervical spine - soft tissue injury; * thoracic spine - soft tissue injury; * lumbar spine - soft tissue injury; * right shoulder - soft tissue injury, and * left shoulder -soft tissue injury.

1. On 24 June 2019, the claimant, [CWN], was involved in a motor accident when the vehicle she was driving was hit on the rear driver's side by a vehicle (insured by GIO) that made a right hand turn into the path of her vehicle (the 2019 accident).
2. As a result of the accident, the claimant claimed that she sustained physical injuries. She also claimed that she developed psychological injury, although this aspect of her injuries is not the subject of this dispute. She also claimed that she suffered an injury to the right ankle which was consequential upon the physical injuries she sustained in the accident.
3. The insurer accepted liability to pay the claimant statutory benefits and damages under the Motor Accident Injuries Act 2017 (the MAI Act). As part of her claim for damages, the claimant pursued damages for non-economic loss. According to s 4.11 of the MAI Act, no damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by a motor accident is greater than 10%.
4. The insurer did not concede that the threshold for permanent impairment of the claimant's physical injuries caused by the accident, was crossed.
5. To resolve the dispute, the claimant made an application for a medical assessment by the Personal Injury Commission (Commission) pursuant Division 7.5 of the MAI Act.
6. The nature of the claimant's physical injuries referred to the Commission for assessment meant that two Medical Assessors were each required to assess the different types of injury, according to their area of expertise.
7. The claimant's referred injuries to the cervical spine, thoracic spine, lumbar spine, right shoulder, left shoulder and right ankle were assigned by the Commission to Medical Assessor Alexander Woo for assessment. The referred head injury was assigned to Medical Assessor Ahamed Veerabangsa for assessment.
8. On 10 October 2023, Medical Assessor Veerabangsa issued a certificate finding that the head injury (mild concussion) caused by the accident, gave rise to no assessable permanent impairment as the injury had resolved.
9. On 10 November 2023, Medical Assessor Woo issued a certificate finding that the physical injuries assigned to him for assessment, gave rise to a permanent impairment of 0%.
10. On 15 January 2024, a combined certificate was then issued by the Commission to the effect that the claimant's physical injuries gave rise to a permanent impairment of 0%.
11. The dispute in this matter relates only to the certificate of Medical Assessor Woo issued on 10 November 2023.

1. On 13 February 2024, pursuant to s 7.26 of the MAI Act, the claimant made an application to the President of the Commission to refer the medical assessment of Medical Assessor Woo to a review panel for review. The review application was made within the time prescribed by s 7.26(10) of the MAI Act.
2. The President referred the application to a review panel for review, being satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect, having regard to the particulars set out in the application.[1]

1. According to s 7.26(5A) of the MAI Act, the Review Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission. On this occasion, the Review Panel is constituted by Medical Assessor Gorman, Medical Assessor Moloney and Member Castagnet (the Panel).
2. Part 5 of the of the Personal Injury Commission Act 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[2]
3. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings. The panel may determine the proceedings solely based on the written application.[3]
4. The review is not limited to only that aspect of the assessment that is alleged to be incorrect and is by way of a new assessment of all the matters with which the medical assessment is concerned.[4]

1. Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines).[5]
2. The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association's Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[6]
3. The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAI Act in determining issues of causation, particularly ss 5D and 5E of the CL Act.[7]
4. In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13, Campbell J made the following observations at [65]:

"One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely."

1. Clauses 6.5 to 6.7 of the Guidelines also address the issues of causation of injury and whether the degree of permanent impairment is caused by injury.
2. Clause 6.7 of the Guidelines provides:

"There is no simple common test of causation that is applicable in all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible."

1. The Panel is required to determine the issues on the balance of probabilities. The resolution of causation does not require scientific certainty: Briggs v IAG Ltd (No 2).[8]

1. The following injuries were referred to Medical Assessor Woo for assessment:
   • cervical spine - soft tissue injury/radiculopathy;
   • thoracic spine - soft tissue injury;
   • lumbar spine - soft tissue injury/radiculopathy;
   • right shoulder - soft tissue injury/subacromial bursitis and tendonitis/secondary to cervical spine (Nguyen Principle);
   • left shoulder - soft tissue injury/subacromial bursitis and tendonitis/secondary to cervical spine (Nguyen principle), and
   • right ankle - inversion injury.
2. The Medical Assessor found that the following injuries were caused by the accident and gave rise to a permanent impairment of 0%:
   • cervical spine - soft tissue injury;
   • thoracic spine - soft tissue injury;
   • lumbar spine - soft tissue injury, and
   • right shoulder - soft tissue injury.
3. The Medical Assessor found that there was no documented injury to the left shoulder in connection with the accident and therefore any injury to the left shoulder was not caused by the subject accident. He noted that the right ankle injury occurred 12 months after the subject accident and was of the opinion that the injury was not related to the accident.

1. The insurer filed a paginated and indexed bundle of documents comprising 984 pages (the insurer's bundle).
2. The claimant filed a late and partially paginated and indexed bundle of documents comprising 682 pages (the claimant's bundle). The claimant's bundle contained some 400 pages of duplicated copies of documents that were already filed by the insurer. This did not assist the Panel in completing its task in a timely manner.
3. On 8 October 2024, the insurer filed an application to admit late documents comprising clinical notes of general practitioner, Dr Hillver Ng. These records were clearly of relevance to the medical assessment.
4. The Panel considered all the materials filed by the parties.

1. The claimant pointed out that the Medical Assessor concluded that there was an exaggeration of symptoms which made the assessment of range of movement in the spine and shoulders unreliable due to voluntary guarding. The claimant submitted that in those circumstances, she had been denied procedural fairness in that the Medical Assessor drew an adverse conclusion about her credit without giving her an opportunity to respond as required by cl 6.41 of the Guidelines.
2. The Panel interposes to say that this complaint has now been cured in that the claimant has been afforded a re-examination and the assessment of the matter afresh by the Panel.
3. In regard to the assessment of the injury to the right shoulder, the claimant submitted that the Medical Assessor did not adequately consider the pathology identified in the ultrasound dated 13 August 2021 and the MRI scan dated 12 September 2022.
4. Lastly, the claimant submitted that the Medical Assessor did not give adequate consideration to the issue of causation for the right ankle injury. The Medical Assessor did not address the question of whether the subsequent injury to the right ankle was consequential upon an original injury sustained in the accident.

1. The insurer submitted that both imaging studies in question (the ultrasound dated

13 August 2021 and the MRI scan dated 12 September 2022) were considered by the Medical Assessor and he was entitled to make his own conclusions, and he is not required to give detailed reasons. In the insurer's submissions, the Medical Assessor gave sufficient reasons to support the conclusion that the claimant's shoulder symptoms are related to constitutional impingement rather than acute injury. 2. In reply to the claimant's last submission, the insurer pointed out that when the Medical Assessor took a history of symptoms and treatment following the motor accident, he noted that there was no post-accident contemporaneous mention of injuries or symptoms to the right ankle. The Medical Assessor recorded the history of the incident on 25 June 2020 and the treatment that followed but the claimant did not provide any details of why her right leg gave way and how this episode was related to an original injury sustained in the accident.

1. The parties were aware that apart from determining this review application, the Panel was also concurrently determining the review application of a single Medical Assessor in matter R-M10574895/23 (the related matter) about whether injuries caused by a motor accident on 19 December 2021 were threshold injuries for the purposes of the Act.
2. The parties were also made aware that the Panel would consider in this matter, evidence submitted by the parties in the related matter so far as such evidence was relevant to the determination of this matter. The parties consented to the Panel proceeding with the determination of this matter on that basis.
3. The evidence relevant to the Panel's task in this matter be summarised as follows.

1. The claimant was involved in a motor accident in 2004 when her vehicle was hit from behind by a semi-trailer. In a signed statement dated 6 January 2021, the claimant stated:

"I remember injuring my neck and back. I remember seeing a solicitor at Keddies Lawyers. I cannot remember how this claim settled. I may have got money, but I assume it wasn't much given that I can't remember many of the details about this claim."[9]

1. The claimant was involved in another motor accident on 11 February 2014 in which she sustained injury. In her statement dated 6 January 2021, the claimant stated:

"The injuries included injury to my neck and lower back. I did pursue a claim for this accident which settled, but I made a very good recovery from this accident."[10]

The claimant's statement regarding the 2019 accident

1. In her application for personal injury benefits dated 29 June 2019, the claimant described her injuries in the following terms:

"Right face ache - migraines - neck pain - right side rib pain - exacerbation in asthma - pain when I breathe in - stomach pains - earache - blood in my urine - emotional - middle back pain - anxiety - kidney pain (said GP) - shock - vomiting - memory loss - vacant - unable to concentrate."[11]

Post-accident attendance at Campbelltown Hospital

1. According to the Emergency Discharge Referral from Campbelltown Hospital, the claimant was admitted to the hospital on the day of the accident.[12] She reported mid back pain and left chest wall pain. On examination of the spine, there was no bony tenderness, slight paracentral tenderness in the mid back, no neck pain and no neurological abnormalities. After a chest X-ray, she was diagnosed with soft tissue injury and discharged.[13]

1. The next day, the claimant consulted her general practitioner (GP), Dr Hillver Ng of Macarthur Square Medical Centre. The claimant said that she had been involved in a motor accident when her car was hit by a car from behind and her car spun almost 360 degrees. The airbags were deployed. She presented with complaints of mid back pain, left chest pain and slight paravertebral tenderness in the mid back. Monitoring signs for a head injury was discussed.[14]
2. On 27 June 2019, the claimant consulted Dr Ng complaining of neck ache, headache and hearing issues with the right ear.[15]
3. On 28 June 2019 an MRI of the brain was performed for suspected post-concussion syndrome, which showed no abnormality.[16]
4. On 5 July 2019, the claimant consulted Dr Ng reporting neckache, headache and back spasm with driving. The claimant was referred for physiotherapy and psychological therapy.[17]
5. On 9 August 2019, the claimant consulted Dr Ng reporting difficulty sleeping, hypervigilance, headaches, migraines, neck pain, back pain and numbness in her right arm and leg. A right leg limp was observed.[18]
6. On 23 August 2019, Dr Ng recorded that the claimant had been receiving physiotherapy, which was assisting, but the claimant was still experiencing migraines and dizziness, lower back pain with pins and needles and "electrical sensation/ spasm".[19]
7. On 9 September 2019, the claimant presented to Dr Ng complaining of ongoing migraines. It was noted that approval for a referral to a neurologist was still declined by the insurer.[20]
8. On 25 October 2019, the claimant presented to Dr Ng complaining that she was feeling lightheaded which seemed to be worsening and that she was feeling nauseous. She was still experiencing ongoing numbness over her arms and legs and pins and needles in her legs. A referral to a neurologist was provided.[21]
9. On 19 December 2019, the claimant reported to Dr Ng that her symptoms remained unchanged.[22]
10. On 20 April 2020, the claimant was seen by neurologist, Dr Abdul Mamun. Dr Mamun noted that the claimant was involved in a motor accident in June 2019 which resulted in significant headache, neck pain, back pain, whiplash injury, reduced hearing on the right side, dizziness and balance issues. The claimant recalled losing consciousness in the accident. She described paraesthesia of her arms and legs, mostly to the right side of her upper and lower limbs.[23] Dr Mamun was of the opinion that the claimant's symptoms were consistent with post-concussion syndrome. She was to have an MRI of the cervical spine to rule out radiculopathy and myelopathy.[24]
11. An MRI of the cervical spine was performed on 11 May 2020 which reported no cervical spine abnormality. The central canal and foraminal dimensions were found to be adequate at all levels with no neural contact.[25]

1. In a signed statement dated 6 January 2021, the claimant said that on 25 June 2020, she was at home retrieving a plastic container from the cupboard. The claimant went on to state:

"While I was doing this, my right leg went numb. I have experienced this problem frequently since the motor vehicle accident. Due to my leg going numb, I lost feeling in my leg and my right ankle rolled and I fell onto the ground. I heard a pop and was unable to stand up, my ankle was immediately bruised and purple in colour and swollen."[26]

1. On 26 June 2020, the claimant consulted Dr Ng, reporting that she had rolled her right ankle. An X- ray revealed a partial tendon tear.[27]
2. In a consultation with Dr Mamun on 15 July 2020, the claimant reported that since about a month ago, she had been experiencing more headaches one to two times a week.

Dr Mamun recommended that she increase her intake of Endep.[28] 3. On 18 August 2020, the claimant consulted with Dr Ng regarding her right ankle injury. Dr Ng recorded the following:

"discussed further re. the ankle/foot injury incident

but rolled ankle due to numbness sx not able to sense uneven ground

thus ankle issue is related to previous accident."[29]

1. On 27 August 2020, the claimant consulted Dr Ng reporting pain back on the right side, loin, the right upper quadrant (RUQ) and spasms.[30]
2. On 21 October 2020, the claimant consulted Dr Ng complained of neck symptoms and headaches. Dr Ng recorded that the headaches were likely due to the neck issues.[31]
3. In a consultation with Dr Mamun on 22 October 2020, the claimant reported that she had been in and out of hospital with pleurisy and pneumonia. She had developed widespread paraesthesia and complained of pins and needles in both fifth fingers. Her post-concussion syndrome continued to worsen. Dr Mamun recommended a nerve conduction study to look for neuropathy and planned a further review in three months.[32]
4. On 25 January 2021 a nerve conduction study of the upper limbs was conducted by neurologist, Dr Ho Choong at Campbelltown Hospital and the results were within normal limits.[33]
5. In a consultation with Dr Mamun on 4 February 2021, the claimant reported that her paraesthesia and post-concussion related symptoms remained unchanged. Dr Mamun recommended a further increase in her intake of Endep.[34]
6. In a consultation with Dr Mamun on 8 July 2021, the claimant reported worsening of her right upper limb pain around the shoulder and elbow with numbness. She found it difficult to lift heavy objects with her right upper limb. Dr Mamun recommended a further increase in her intake of Endep. An ultrasound of the right shoulder and elbow was requested.[35]
7. In a consultation on 9 July 2021 with Dr Ng the claimant reported that she was advised by

Dr Mamun that the nerve conduction study with Dr Mamun was "ok". [36] 8. An ultrasound of the right elbow performed on 13 August 2021, showed the ulnar nerve to be of normal appearance.[37] An ultrasound of the right shoulder performed on the same day, showed supraspinatus insertional tendinosis with overlying subacromial/subdeltoid bursitis.[38] 9. In a consultation with Dr Mamun on 14 October 2021, the claimant reported that her headaches were not as severe, but she still had ongoing paraesthesia. Dr Mamun said that he did not have a clear explanation for the paraesthesia in the ulnar nerve distribution.[39]

1. On 19 December 2021, the claimant sustained injury in another motor accident when the vehicle she was driving was rear-ended by another vehicle (the 2021 accident). In her application for personal injury benefits dated 14 January 2022, the claimant described her injuries in the following terms:

"Right side arm and leg weakness - as advised by paramedics.

Pins and needles on the right (Neck, shoulder, arm and leg) and left side (arm and leg) of my body

Intense pain and difficulty rotating my neck on the right side."[40]

Post 2019 accident and post 2021 accident treatment

1. The report of the NSW Ambulance Service dated 19 December 2021, recorded that the claimant was able to self-extricate from the vehicle but "felt very shaken and tingly all over." The claimant reported that the numbness/tingling had mostly resolved but remained in the right arm and thumb, pointer and middle finger and the right heel.[41]
2. The claimant consulted Dr Ng the same day reporting that she waited six to seven hours for treatment at Campbelltown Hospital emergency department and could not wait any longer.[42] She reported right-sided lower neck pain, weakness of the right upper limb and the right lower limb, and headache on the right side of her head. On examination, it was recorded that there was tenderness on the right side of C6/7 paraspinal area and the upper medial aspect of the right shoulder.[43]
3. A CT scan of the brain performed on 20 December 2021 showed no abnormality.[44] A CT scan of the cervical spine performed on 21 December 2021 showed no evidence of acute injury or significant canal or foraminal narrowing.[45]
4. On 21 December 2021 the claimant consulted Dr Ng for review of the CT results. She reported ongoing right sided weakness and pain.[46]
5. An MRI of the cervical spine performed on 23 December 2021 showed early spondylotic changes at multiple levels without significant canal or foraminal stenosis.[47]
6. In a consultation with Dr Ng on 13 January 2022, the claimant reported lower neck pain, weakness in the upper and lower right limbs.[48] In a certificate of fitness issued on

13 January 2022, Dr Ng diagnosed neck pain, right upper limb and lower limb weakness and headache.[49] 7. In a telephone consultation on 20 January 2022 with Dr Mamun, the claimant reported that after the 2019 accident, she experienced pins and needles in her arms and legs and could not move her neck. The claimant reported that since the 2019 accident, her pre-existing symptoms have worsened, and she has developed new symptoms. She was experiencing more neck pain and had weakness in the right arm. Dr Mamun said that it was hard to comment more on the weakness on the right side given that the MRI of the cervical spine of 23 December 2021 did not show any significant finding on the right side to explain her symptoms.[50] 8. On 24 January 2022, the claimant was seen in person by Dr Mamun. On this occasion the claimant reported "like a line coming from this right side of the right neck going through the elbow and involving the right lateral three fingers numbness since the [2019] accident."[51] The claimant reported weakness in the whole right upper limb affecting her function. She cannot open a jar and cannot hold onto objects due to weakness. 9. In regard to his examination, Dr Mamun said the following:

"On upper limb examination, she has normal tone bilaterally. On examination of power, she has inconsistent finding of right sided upper limb. When checked synchronously with left upper limb, she has normal strength in right upper limb but she (sic) checked individually on the right side, she has giveaway weakness of the right upper limb abduction, adduction of shoulder and flexion extension of her elbow."[52]

1. Dr Mamun was of the opinion that overall, her right-sided weakness could be due to recent whiplash injury though there is some inconsistency noted and there is some suggestion of functional overlay.[53]
2. On 11 May 2022, Dr Mamun reported a normal upper limb nerve conduction study.[54]
3. On 22 June 2022 the claimant consulted neurologist, Dr Stan Levy. Dr Levy took a history of both the 2019 accident and the 2021 accident. The claimant reported that she was feeling an 'electrical line' extending from the right side of her neck down her right arm and into her fingers. She also reported random 'electrical buzzing sensations' in her arms. On examination, there were no neurological abnormalities. Dr Levy believed that the claimant's symptoms may be suggestive of a spinal cord neurapraxic injury and the ongoing symptoms in the right upper limb were possibly the result of the initial spinal cord injury. Dr Levy recommended further radiological studies and nerve conduction studies.[55]
4. An MRI of the right brachial plexus performed on 13 July 2022 revealed a normal appearance.[56]
5. At a further consultation with the claimant on 21 July 2022, Dr Levy noted the MRI scan of the right brachial plexus was reported to be normal and the MRI scan of the cervical spine also appeared to be normal. Dr Levy concluded that there was no evidence of cervical myelopathy or brachial plexopathy identified to account for the claimant's ongoing symptoms. He therefore formed the view that the claimant's symptoms could be related to the right shoulder itself and recommended a referral to an orthopaedic surgeon.[57]
6. On 25 August 2022, the claimant consulted orthopaedic surgeon, Associate Professor Mark Haber. Professor Haber recorded the symptoms of rotator cuff pain, reduced range of motion, weakness, stiffness and numbness.[58]
7. An ultrasound of the right shoulder performed on the same day at Associate Professor Haber's rooms found as follows:

"The ultrasound demonstrated mild thickening of the subacromial bursa. There was evidence of a partial thickness tear of rotator cuff tendons. The supraspinatus tendon demonstrates an articular surface partial thickness tear which measures 5 mm by 6 mm."[59]

1. On 12 September 2022, an MRI of the right shoulder was performed. The conclusion was that there were low grade supraspinatus and infraspinatus tendinosis without a tear, subacromial bursitis and bony impingement anatomy.[60]
2. On 13 October 2022, Dr Ng referred the claimant to vascular surgeon, Associate Professor Jim Iliopoulos for review of recurrent numbness and pain from the right side of the neck radiating to the arms and fingers.[61]The Panel notes there was no report from Associate Professor Iliopoulos in evidence.
3. On 15 December 2022, Associate Professor Haber referred the claimant to interventional pain physician and consultant neurosurgeon, Dr Michael Davies for an assessment of the right shoulder girdle. At that stage Associate Professor Haber felt that "the ongoing pain may be referred pain from more proximally."[62] The Panel notes there was no report from

1. The claimant was assessed by rehabilitation specialist, Dr Mohammed Assem on

26 October 2020. In a report of the same date, Dr Assem noted that the claimant reported that she was involved in a motor accident in 2004 sustaining injuries to her neck and upper back. She believed that her symptoms resolved.[63] The claimant also reported to Dr Assem that she was involved in a motor accident in 2014, sustaining injuries to her neck and lower back. She told Dr Assem at the time of the assessment, that she would sometimes experience pain across her lower back when performing tasks that involved bending.[64] 2. Dr Assem was of the opinion that the 2019 accident caused injuries to the neck and upper back and that there was a closed head injury. Dr Assem noted that the claimant reported a subsequent injury to the right ankle which the claimant attributed to the subject accident because the incident happened when her legs felt weak and numb. Dr Assem did not expressly state an opinion as to whether this injury was caused consequentially by any injury caused by the accident.[65] 3. The claimant was assessed by occupational physician, Dr Margaret Gibson on

8 September 2023 for the injuries sustained in the 2019 accident. In a report of the same date, Dr Gibson noted that the claimant reported that in the motor accident in 2004, she injured her neck and upper back and that she had recovered from those injuries. The claimant reported that in a motor accident in 2014, she injured her neck and lower back. The claimant told Dr Gibson that the neck symptoms had settled down but up to the time of the 2019 accident, she had intermittent low back symptoms including stiffness and niggling pain, particularly if she performed repetitive activities.[66] 4. The claimant reported to Dr Gibson that she was involved in a subsequent motor accident (the 2021 accident) when she injured her right shoulder and neck. She told Dr Gibson that the neck pain extended into the right arm and to the thumb and index finger and there was right arm weakness.[67] 5. The claimant reported to Dr Gibson that in the 2019 accident, she suffered injuries to her neck and upper back, post-concussion syndrome and possibly occipital neuralgia. The claimant clarified that the 2019 accident had caused pain extending from the axilla to the elbow and the two lateral fingers of the right hand.[68] 6. Dr Gibson was of the opinion that the 2019 accident caused soft tissue injuries to the neck, chest and upper back. She believed there was possibly a temporary increase in lower back symptoms but not a new lower back injury.[69] Dr Gibson was of the opinion that there was a right shoulder injury involving structural impingement with tendonosis and bursitis which was unrelated to the 2019 accident.[70] 7. Dr Gibson noted the subsequent ankle injury in June 2020. Her opinion was that none of the injuries sustained in the 2019 accident could plausibly have led to right leg weakness or giving way and therefore the right ankle injury is unrelated to that accident.[71]

1. The claimant was re-examined by Medical Assessor Gorman on behalf of the Panel on

7 February 2025 at the medical suites of the Commission. The claimant attended the assessment unaccompanied. 2. The examination report of Medical Assessor Gorman now follows.

Pre-accident medical history and relevant personal details

1. The claimant is a 40-year-old woman (at the time of the examination) who works as a psychologist. She has been in private practice since 2011. She is currently working on a part-time basis, eight hours per week via Telehealth. She is married with two sons aged 9 and 12 years.
2. The claimant suffers asthma and has Factor VIII Leiden which was discovered when she had a pulmonary embolus after the motor accident in 2004.
3. The claimant confirmed the following previous history of injuries:
   • Motor accident on 13 April 2004 - she was stationary in a motor vehicle which was hit from behind by a semi-trailer. She sustained whiplash and lumbar injury. She had scans done, physiotherapy and chiropractic treatment. Her CTP claim was settled for a lump sum.
   • Motor accident on 11 February 2014 - she sustained injuries to the cervical spine, thoracic spine and lumbar spine. She was reviewed by neurologist, Dr David Rail on 16 April 2014. She had tingling in the upper limbs and right leg. There were no neurological signs. She had physiotherapy treatment and exercise physiology. She had such treatment until 2016.
   • On 7 April 2015, she had a fall when her right leg gave way. She had symptoms involving her left groin and adductor region which subsided after four weeks.
4. The claimant stated that despite the above injuries, she was active and was working fully prior to the 2019 accident.

1. The 2019 accident occurred when the claimant was the driver of a Mazda CX9 seven-seater with her two sons in the rear passenger seat. She was wearing a seat belt. A vehicle from the opposite direction collided into the driver side of her vehicle impacting the rear passenger door and a small part of the driver door. The side air bag was deployed. Her vehicle was pushed and hit another vehicle. A man at the scene opened the door for her and she was able to self-extricate and looked after her sons. Police and ambulance arrived at the scene, and she was transported to Campbelltown Hospital.

History of symptoms and treatment following the motor accident

1. The claimant was transported from the scene of the accident by ambulance to Campbelltown Hospital. The Emergency Discharge Referral from the hospital recorded that she had mid back pain and left chest wall pain. On examination it was recorded that there was no bony tenderness, slight paracentral tenderness mid back, no neck pain and no neurological signs.
2. The claimant consulted her GP, Dr Ng the following day. She presented with complaints of mid back pain, left chest pain and slight paravertebral tenderness in the mid back.
3. On 28 June 2019 an MRI was performed for suspected post-concussion syndrome.
4. On 5 July 2019, Dr Ng reported neckache/headache, back spasm with driving. The claimant was referred for physiotherapy and also received psychological therapy.

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

1. On 25 June 2020, the claimant injured her right ankle whilst using a stick vacuum cleaner when her right leg gave way. She states that her neck symptoms were accompanied by numbness in her hands and her back symptoms were accompanied by numbness in her legs. She had an MRI in August 2020 which showed deltoid ligament injury and a subacute sprain of the ATFL and CFL without disruption. She was treated with a Moon boot for six weeks followed by physiotherapy and gradually recovered.
2. The circumstances of the 2021 accident have been previously noted where the claimant's vehicle was rear-ended by another vehicle. She injured her right shoulder and there was neck pain extending into the right arm and to the thumb and index finger and right arm weakness.
3. The claimant's injuries, the subsequent symptoms that arose from these injuries and the treatment received since the 2021 accident have been outlined earlier in the Panel's reasons.

1. The claimant complains of shooting neck pain most of the time. She has been diagnosed as having an inflamed occipital nerve. She experiences radicular pain down her right arm to her ulnar fingers.
2. She complains of bilateral shoulder pain and stiffness that has occurred since the 2019 accident. The left shoulder pain has arisen due to overuse because the right shoulder cannot be used for lifting.
3. The claimant experiences thoracic and lumbar spine pain as well as pain and tingling in the right foot and toes and occasional left leg pain.
4. The claimant says that the 2021 accident made her right shoulder worse.
5. The 2021 accident has worsened her back pain. However, physiotherapy has helped returned it to what it was after the 2019 accident.

1. The claimant takes Maxigesic almost every day. She attends physiotherapy and chiropractic treatment as well as exercise physiology. She has stopped psychological therapy.

Summary of relevant radiological and medical imaging and other investigations

1. The following radiological and medical imaging reports were noted at the assessment:
   • The MRI of the cervical spine on 11 May 2020 indicated no cervical cord abnormality and the central canal and foraminal dimensions are adequate at all levels with no neural contact.
   • The ultrasound of the right shoulder on 13 August 2021 indicated supraspinatus insertional tendinosis with overlying subacromial/subdeltoid bursitis.
   • The MRI of the cervical spine on 23 December 2021 indicated early spondylotic changes at multiple levels, without significant canal or foraminal stenosis.
   • The MRI of the right brachial plexus on 12 July 2022 indicated no abnormalities.
   • The nerve conduction and EMG report on 25 January 2021 indicated that the upper limb nerve conduction study is within normal limits.
   • The MRI of the right shoulder on 12 September 2022 indicated a low-grade supraspinatus and infraspinatus tendinosis without a tear as well as subacromial bursitis with bony impingement anatomy.
   • The MRI of the right shoulder on 25 March 2024 - The slightly globular appearance of the anterior labrum at the 3 o'clock position with an adjacent tiny cystic focus was likely a reflection of a previous labral tear which has partially healed/scarred down with a tiny para labral cyst.

1. The claimant is right hand dominant. She is 158cm in height and weighs 87.1kg. At the time of the accident, she was 65kg. She has a normal gait.

1. There was tenderness in the cervical spine generally but no guarding. There was no dysmetria and the range of movement was as follows:
   • Flexion - 1/2 normal;
   • Extension - 2/3 normal;
   • Rotation - 1/2 normal to both sides and symmetrical, and
   • Lateral flexion - 1/2 normal to both sides and symmetrical.
2. There was a non-verifiable radicular complaint regarding numbness in the ulnar 2 fingers of right hand radiating down from the neck.
3. The neurological examination of both upper limbs indicated that reflexes were normal and symmetrical and there was no weakness nor atrophy.
4. The right upper arm was 33.5cm in circumference and the left 32.5cm. The left was 27.5cm circumference 5cm below the lateral epicondyle and the left 26.5cm.
5. There was patchy sensation loss in the right and left upper limbs not localised to any spinal nerve root distribution.

1. Range of movement was normal and there was no dysmetria in the thoracic spine. There were no non-verifiable radicular complaints and there was no muscle guarding and no sensory change radiating around the chest.
2. There was tenderness.

1. The claimant experienced no tenderness in the lumbar spine and there was no guarding. The range of movement was restricted symmetrically:
   • flexion - 3/4 normal;
   • extension - 3/4 normal, and
   • lateral flexion - 3/4 normal to the right and left.
2. There were no non-verifiable radicular complaints. The pain experienced in the right lower limb was associated with tingling in the top of the toes and some shooting pain but no true dermatomal symptoms and sciatic nerve root tension signs were negative.
3. Neurological examination of both lower limbs indicated that reflexes were normal and symmetrical. There was no weakness and no atrophy. The right thigh and calf circumferences were equal on both sides. There was patchy sensory loss of the right lower limb not localised to any spinal nerve root distribution.

1. There was diffuse tenderness over both shoulders. Range of movement was measured with a goniometer.

1. To better analyse the shoulder injuries a table of the range of right shoulder movement observed over time is outlined below:

1. There was no deformity and no local tenderness in the right ankle nor right hindfoot. Range of movement was normal, being the same as the uninjured left ankle and hindfoot.

1. The claimant demonstrated consistency in the history and the movements outlined above.

1. The claimant had symptoms related to the cervical spine, thoracic spine, lumbar spine and right shoulder immediately or soon after the 2019 accident.
2. The claimant relates the symptoms in 4th and 5th fingers of the right hand to the 2019 accident and the pain in the thumb and index fingers of the right hand to the 2021 accident.
3. The claimant relates the thoracic spine pain and the lumbar spine pain that radiates down the right leg to the 2019 accident. She states however, that it was aggravated by the 2021 accident.
4. The claimant has developed left shoulder pain due to overuse because the right shoulder cannot be used for lifting.
5. The Panel accepts that the following injuries were caused by the 2019 accident:
   • cervical spine - soft tissue injury - symptoms were present immediately or soon after the accident caused by the accident;
   • thoracic spine - soft tissue injury - symptoms were present immediately or soon after the accident caused by the accident;
   • lumbar spine - soft tissue injury - symptoms were present immediately or soon after the accident caused by the accident;
   • right shoulder - soft tissue injury - symptoms were present immediately or soon after the accident either from the right shoulder itself or referred from the cervical spine, and
   • left shoulder - soft tissue injury - symptoms referred from the cervical spine and/or due to overuse arising from injury to the right shoulder.
6. According to the claimant, her right ankle continues to get "tired easily". She relates this to the 2019 accident and to the twisting injury in 2020. The Panel notes a similar giving way of the right leg occurred in 2015. In the absence of neurological abnormalities in the lower limbs, the Panel does not accept that a right ankle injury was caused by the 2019 accident or that the twisting injury in 2020 is related to the 2019 accident.

1. Permanent impairment is defined in the AMA4 Guides[7] as follows:

"Permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment. A permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment."

1. The claimant's condition is unlikely to change substantially in the next 12 months with or without medical treatment now more than five years after the accident. Her symptoms have been stable for 12 months at least. Impairment, if any, is therefore considered permanent.

1. The determination as to permanent impairment is made in accordance with the AMA4 Guides and Part 6 of the Guidelines.
2. The most significant deterioration in right shoulder movement (and arm symptoms) occurred after the 2021 accident. The assessment by Dr Assem in 2020 is therefore important to separate the impairment arising from the 2019 accident and the impairment arising from the 2021 accident. Dr Assem assessed reduced movement based on the Nguyen principle. The Panel also considers that this is appropriate.
3. Similarly, the left shoulder was restricted in 2020 when assessed by Dr Assem based on the Nguyen principle. The Panel also accepts that this is an appropriate way to consider the effects of the 2019 accident when compared with the 2021 accident.

Cervical spine (DRE category II - 5% whole person impairment (WPI))

1. She reported pain and stiffness with no asymmetry of movement but with non-verifiable radicular symptoms to the right arm giving a DRE cervicothoracic category Il or 5% whole WPI (AMA4, Table 73 on page 110). There is no radiculopathy.

1. There is no asymmetry of movement and no referred symptoms or signs.

1. She is best diagnosed as DRE category I. There is no asymmetry of motion. There is no radiculopathy. There are no non-verifiable radicular symptoms. DRE category I gives 0% WPI based on Table 72 on page 110.
2. The Panel notes that in Dr Assem's assessment, about 16 months after the 2019 accident did not assign any impairment to the lumbar spine.

1. The 2021 accident caused more severe symptoms in the right upper extremity. She saw multiple specialists and had multiple investigations as outlined above.
2. To assess the WPI of the shoulders arising from the 2019 accident, it is therefore not appropriate to use current range of motion. The Panel believes that it is most appropriate to use the impairments determined by Dr Assem in 2020.
3. She has a secondary limitation in shoulder motion. According to Dr Assem's assessment, she has 2% right upper extremity impairment (AMA4 Guides, Figure 38, 3/43; Figure 41, 3/44; Figure 44, 3/45) or 1% WPI (AMA4 Guides, Table 3 on page 20).

1. She has a secondary limitation in shoulder motion. According to the limitations at the time of Dr Assem's assessment about 16 months after the 2019 accident, she has 2% right upper extremity impairment (AMA4 Guides, Figure 38, 3/43; Figure 41, 3/44; Figure 44, 3/45) or 1% WPI (AMA4 Guides, Table 3 on page 20).

1. This injury was not caused by the 2019 accident and there was also no assessable impairment currently.

1. The claimant had history of previous neck and back injuries which were chronic issues prior to the 2019 accident. There is, however, no documented pre-existing impairment.

AMA4, Figure 38, 3/43; Figure 41, 3/44; Figure 44, 3/45); Table 3 on page 20

AMA4, Figure 38, 3/43; Figure 41, 3/44; Figure 44, 3/45); Table 3 on page 20

1. The Panel conducted a new assessment of all the matters with which the medical assessment is concerned.
2. The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion.[72]
3. The Panel adopts the examination findings and conclusions of Medical Assessor Gorman.
4. The Panel finds that the motor accident caused soft tissue injuries to the cervical spine, the thoracic spine, the lumbar spine, the right shoulder, the left shoulder which give rise to a permanent impairment of 7%.

1. For these reasons, the Panel revokes the certificate of Medical Assessor Woo dated

10 November 2023 and issues a new certificate. The new certificate of the Panel is attached at the commencement of these reasons.

[5] The Guidelines applied by the Panel was the Motor Accident Guidelines Version 9.3 which commenced on 6 December 2024.

[8] [2022] NSWSC 372 (Briggs (No 2)) at [73].

[12] The subject accident will henceforth be referred to as the "2019 accident".

[13] Pages 290-293 of the insurer's bundle.

[16] Page 256 of the insurer's bundle and page 191 of the insurer's bundle in matter number R-M10574892/23.

[19] Pages 253-254 of the insurer's bundle.

[50] Page 609 of the claimant's bundle.

[55] Pages 182-183 of the insurer's bundle in matter number R-M10574892/23.

[61] Page 102 of the claimant's bundle.

[72] See Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45] and Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21], [64].