Certificate issued under Division 7.5 of the Motor Accident Injuries Act 2017

1. The Review Panel revokes the certificate of Medical Assessor Alan Home dated

2 September 2024 and issues a new certificate as follows:

(a) The Review Panel certifies the following injuries were caused by the motor accident:

(i) cervical spine - soft tissue injury;

(ii) lumbar spine - L5/S1 disc injury;

(iii) left knee - soft tissue injury, and

(iv) right hip - soft tissue injury with prosthesis loosening.

(b) The Review Panel finds that the above injuries result in a whole person impairment of 9% which is not greater than 10%.

1. Ali Fayad (the claimant) was involved in a motor accident on 30 September 2020. He was the driver of a sedan, stopped in traffic heading southwards on the Sydney Harbour Bridge, when he was rear-ended at speed by another vehicle. He suffered injuries to his neck, middle back, lower back, right hip and left knee.
2. The claimant made a claim for personal injury benefits with GIO (the insurer), the third-party insurer of the vehicle that he says caused the accident.
3. A medical dispute arose about whether the degree of the claimant's whole person impairment (WPI) is greater than 10% WPI. This is important because if there is a dispute about the degree of a claimant's WPI, damages for non-economic loss[1] cannot be awarded and disputes must be referred to a Medical Assessor/s for determination.
4. On 2 September 2024, Medical Assessor Alan Home assessed the claimant's injuries as having a WPI of 5%, which is not greater than 10%.
5. The claimant lodged an application with the Personal Injury Commission (Commission) seeking a review of the medical assessment.
6. On 14 February 2025, a delegate of the President (Ms Tajan Baba) accepted the application for review and referred the matter to this Review Panel (the Panel) to conduct the Review proceedings.

1. The claimant gave a history that he had no persisting symptoms in his neck, upper back or mid-back. The claimant also denied symptoms in his left knee. The Medical Assessor confirmed on examination that any accident-related injury to these body parts have resolved.
2. The claimant reported fairly constant low back pain, average intensity 5 out of 10, felt in the mid-line, more severe on the left side. There was exacerbation of back pain with coughing and sneezing.
3. At the right hip, the Medical Assessor noted a pre-accident history of a right total hip replacement performed some 18 years ago.
4. At the time of the medical assessment, the claimant described pain in the buttock with occasional anterior pain in the groin. There was difficulty rising from a chair without use of his hands. There was also difficulty with squatting and stair climbing.
5. Examination of the lumbar spine revealed reduced lumbar extension, to half normal range with flexion three quarters normal range. Straight leg raise was performed to 60 degrees bilaterally, limited by hip pain on the right. Neurologically, there was reduced sensibility at the lateral aspect of the right thigh and over the entire right leg below the knee in a non-dermatomal pattern. The right thigh was 1cm smaller than then left. The circumference of the right calf was 5mm larger than the left - 35.5cm compared with 35cm on the left side.
6. Examination of the right hip revealed restriction in hip rotation. External rotation was 20 degrees and internal rotation was only 5 degrees.
7. The Medical Assessor referred to an early post-accident bone scan in December 2020 which showed only mild evidence of loosening of the peri-prosthetic. Progressive loosening of the femoral component was demonstrated on bone scan imaging in February 2024. The Medical Assessor concluded that any prosthetic loosening around the femoral stem was not caused by the motor accident as the changes on the more recent bone scan was conducted more than three years post-accident. It followed that any reduced range of hip motion related to the failure of the pre-existing total hip replacement and not as a result of the motor accident.
8. Impairment evaluation was DRE Lumbosacral Category 2 due to the spinal dysmetria, muscle guarding and non-verifiable radicular complaints in the right leg - 5% WPI.

1. The claimant's review submissions take issue with the assessment of the cervical spine, thoracic spine, right hip and left knee.
2. With the cervical spine, it is submitted the Medical Assessor did not properly test for, or obtain a relevant history in the determination of whether radiculopathy is present. The claimant says the Medical Assessor did not conduct any testing for positive sciatic nerve root tension signs, nor ask the claimant questions about muscle power or decreased limb circumference for both before and after the motor accident. It is submitted the Medical Assessor should not rely on the opinion of medico-legal doctors, such as the report of

Dr Stephen Rimmer dated 9 November 2023, who found that the cervical spine injury had resolved. This is because other doctors take claimants as they appear on the day. 3. For the thoracic spine, the claimant says it is not sufficient for the Medical Assessor to find no abnormality based on range of motion testing conducted. It is submitted questions such as whether the claimant had any thoracic spine pain should have been asked. 4. The claimant's submissions with respect to the left knee are similar to the submissions made with respect to the thoracic spine. Essentially, it is asserted that the Medical Assessor's testing was insufficient and did not explore whether the claimant suffers from left knee pain or whether the pain comprises a chronic pain syndrome. 5. For the right hip, the claimant says the Medical Assessor was incorrect to find that the prosthetic loosening was not due to the motor accident as the progression of changes was noted in a bone scan conducted more than three years after the motor accident. The claimant acknowledges he had a hip replacement in 2002 but that it was stable at the time of the motor accident. Following the motor accident, the claimant suffers from loss of range of motion, a factor that should have been taken into account in the impairment evaluation. In addition, the claimant refers to the Certificate of Medical Assessor Condie, the report of

Dr Rosenberg of 4 August 2022 and the radiological examinations of 15 February 2020 which indicate that the claimant needs treatment for his loosened prosthetic hip. 6. The claimant also says the Medical Assessor did not consider the two flakes of bone in the right hip. 7. Specifically, the claimant refers to the findings of Medical Assessor Condie who stated:

"...it seems likely that his right hip condition is the most disabling and that the compensatory movement to avoid movement and weight bearing to his hip is aggravating his lower back complaint."

1. The claimant submits that if the right hip complaint has resolved, as Medical Assessor Home posits, then the lower back complaint would no longer be aggravated. However, as it is still aggravated, this indicates that the claimant suffers from ongoing injury to his right hip.

Insurer's submissions - 12 November 2024 and original reply submissions (undated)

1. The insurer provides a chronology of the relevant history from the time of the right hip replacement surgery in 2002 to the medical evidence following the subject motor accident of September 2020. The insurer says the claimant's accident-related musculoskeletal injuries are all soft tissue in nature and would have resolved within three months of the motor accident. Any ongoing complaints are related to pre-existing degenerative changes and unrelated to the motor accident.
2. In relation to the review submissions, the insurer says there is no error, material or otherwise with the medical assessment. The Medical Assessor has provided a path of reasoning for the findings made for each alleged injury.
3. With respect to the right hip, the insurer says the evidence suggests that there was no evidence of any significant loosening of the prosthetic. The insurer says Dr Papadimitriou expected the hip symptoms to resolve with conservative management. It is submitted the Medical Assessor was open to conclude that no hip injury was caused by the motor accident and as such, no assessment of permanent impairment was required.

1. On 18 February 2025, the Panel issued a direction to the parties requiring indexed and paginated bundles of the information they relied upon. The Panel stated that unless documents are uploaded to the Review file, the Panel would not be able to read and consider those documents. The parties duly responded with the claimant's bundle comprising of pages 1-374 and the insurer's comprising of pages 1-489.
2. The Panel has read and discussed the documentation with the relevant material referred to in the Panel's re-examination report and Panel findings below.

1. At the preliminary conference on 29 April 2025, the Panel determined that the claimant be re-examined. The re-examination report of Medical Assessor Rosenthal is as follows:

"Mr Fayed attended unaccompanied for re-examination following a review of Medical Assessor Alan Home's certificate dated 2 September 2024.

Medical Assessor Home found injuries to the cervical spine, thoracic spine, left knee and right hip had resolved and assessed 5% whole person impairment for the lumbar spine injury.

Mr Fayed is a 51 year old male who was involved in a motor vehicle accident on 30 September 2020. He confirmed the history previously provided to Assessor Home.

He was the seatbelted driver of an Uber Nissan sedan. He was on the Harbour Bridge when his vehicle was struck from behind and pushed into the car in front. It ended up being a five-car pile-up and he was the second car from the rear. He said no airbags went off. Police attended but he did not require an ambulance. His car was drivable and he drove his car home and it was subsequently towed away.

He attended St George Hospital with symptoms of neck pain, back pain and right hip pain but received no particular treatment. He had a pre-existing right hip prosthesis following a hip replacement that occurred in 2002 by Dr Papadimitriou.

He attended his GP, Dr Awada, with ongoing symptoms and he was referred back to Dr Papadimitriou, who did investigations on his right hip and determined that the prosthesis had not loosened.

Mr Fayed continued to experience ongoing symptoms in his low back and right hip. An MRI of the lumbar spine demonstrated a disc injury. He ended up seeing various other doctors. Dr Ashish Diwan, spinal surgeon, became his treating specialist. Dr Diwan apparently did further investigations and then it was noted that there was a loosening of the right hip prosthesis reported in subsequent investigations. Dr Diwan referred him to Dr Robert Molnar. Dr Molnar, in 2024, reviewed all the investigations and told him he has to have a further right total hip replacement, replacing the original prosthesis.

He was also seen by Dr Rosenberg, an orthopaedic surgeon, in regards to his back condition but no further invasive procedures have occurred in terms of his lumbar spine injury.

All treatment funded by the insurer was apparently stopped in 2024. He was getting physiotherapy and hydrotherapy at one stage.

He was assessed by Dr Home for a threshold injury at the PIC in 2023 and was also assessed by Fiona Condie for a physiotherapy treatment dispute in March 2023. Assessor Condie found there were ongoing injuries to his low back and right hip. The injuries to the left knee, neck and mid back were deemed to have resolved.

Mr Fayed's ongoing symptoms refer to his right hip and lumbar spine. He has very few symptoms in his neck but he still complains of some left knee pain which is only slight.

There is no issue with his right knee. There is no issue with his upper extremities.

Endone daily. He also takes escitalopram and was seeing a psychiatrist or psychologist at one point.

He is not having any physiotherapy or hydrotherapy now.

He thinks he still has appointments to see Dr Molnar who may end up doing his right hip as a private patient. Following his right hip procedure, he will return to Dr Diwan.

He was working as a full-time Uber driver and previously worked as a taxi driver. He stopped work after his motor vehicle accident in 2020 and has not worked since. He is receiving Centrelink benefits.

He lives with his parents now. He is divorced and has five children.

He does not do any major household chores or yard or garden activities but he still can drive short distances and can manage his personal care activities.

Mr Fayed wanted to present documents provided by his GP but he was told they could not be accepted in the assessment today. He was advised his lawyer has already made a submission of 374 pages and the insurer has made a submission of 489 pages.

On examination, Mr Fayed weighed 86kg and was 174cm tall.

He walked with an antalgic gait favouring his right leg.

Examination of his neck revealed a full range of movement. There was some mild tenderness at the base of the cervical spine but no spasm or guarding. There was no asymmetry of neck movement.

There were no neurological deficits in his upper limbs. Muscle power, tone and reflexes were normal and there were no sensory changes.

The thoracic spine exhibited no particular tenderness, muscle spasm or guarding and no evidence of radicular complaints or radiculopathy.

At the lumbar spine, he was quite tender in his mid to lower lumbar region in the midline. There was no spasm but there was asymmetry of lumbar movement. Flexion was reduced by one-quarter, extension was reduced by one-half, lateral flexion to the right was reduced by one-third, to the left was reduced by one-half.

He said he could not walk on his heels or toes because of his right hip pain and attempted to do a very partial squat.

In the supine position, he had a reduced straight leg raise on the right to 40° which was impacted by hip pain. SLR on the left was to 70°. His Lasegue's signs were negative. Power testing was normal in the lower limbs. There were no dermatomal sensory changes and reflexes were both present and equal.

There was a full range of motion of both knees. He complained of some left knee inferior patellar tenderness but there was no retropatellar crepitus, alignment was normal, ligaments were intact. Flexion was to 130° on and extension to 0° at the left knee. The right knee was normal to examination.

The right hip exhibited restriction in all ranges of motion. He could only flex to 70°. Adduction was to 20°, abduction 30°, internal rotation 15° and external rotation 15°. It was very irritable and he complained of pain with all right hip movements.

1. The review of the medical assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned.[2]
2. The Panel should only consider the impairment as it is at the time of the Panel's assessment.[3]
3. The Panel may confirm the certificate of assessment or revoke that certificate and issue a new certificate as to the matters concerned.[4]
4. The Panel refers to the above re-examination report of Medical Assessor Rosenthal and adopts the findings in their entirety. The Panel reconvened on 21 July 2025 and discussed the re-examination report findings before collectively making the below determinations.

1. Causation is dealt with at cls 6.5-6.7 of the Motor Accident Guidelines (the Guidelines).[5] An abridged form of the requirements is contained in cl 6.7 which states:

"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."

1. Further, the provisions of the Civil Liability Act 2002 apply, in particular ss 5D and 5E.
2. Medical Assessor Home determined the cervical spine, thoracic spine, left knee and a right hip contusion had resolved. He determined the reduced range of hip motion related to failure of the pre-existing total hip replacement, not causally related.
3. As a result of the motor accident, the Panel was satisfied that the claimant sustained injuries to his cervical spine, thoracic spine, lumbar spine, right hip and left knee. These injuries were mentioned in his application for personal injury benefits which was completed soon after the motor accident, on 26 October 2020. They are also mentioned in the early clinical notes and the various certificates of capacity completed by his treating general practitioner, Dr Awada.
4. The clinical notes indicate that the claimant's symptoms have persisted to the present day and as such, the Panel does not accept the insurer's contention that his musculoskeletal injuries would have resolved within three months of the date of accident.
5. The Panel noted that the injury to the right hip included the description "prosthetic loosening around the femoral stem". The Panel noted that Dr Papadimitriou determined initially from his investigations that there was no loosening but subsequent review by a second specialist and further investigations revealed progressive loosening of the right hip prosthesis.
6. The Panel was of the view that the impact of the motor accident could have initiated the prosthesis loosening process, which is consistent with the early loosening mentioned in the initial bone scan of 15 December 2020 and its progression in the comparison study of the bone scan performed on 16 February 2024. This view is consistent with that of the treating surgeon Dr Ashish Diwan in his amended report of 19 February 2024.
7. The initial bump to the right hip at the time of the motor accident, the claimant's continued complaints and the evidence of prosthesis loosening are considered the factors contributing to the claimant's right hip impairment at the present time. While the Panel was cognisant of the claimant's total hip replacement in 2002, the documented evidence does not support any significant issues since that time with the last pre-accident complaint to the hips made back in August 2012.

1. The following injuries WERE caused by the motor accident:

(a) cervical spine - soft tissue injury;

(b) lumbar spine - L5/S1 disc injury;

(c) left knee - soft tissue injury, and

(d) right hip - soft tissue injury with prosthesis loosening.

1. Permanent impairment is defined in the American Medical Association's Guides to the Evaluation of Permanent Impairment (Fourth Edition) (AMA4 Guides) (p 315) as follows:

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

1. It is now almost five years since his motor vehicle accident. He has had physiotherapy and hydrotherapy which stopped sometime in 2024. His symptoms and signs have not changed significantly over the last six months. There is no specific treatment planned, although he is currently considering a further procedure to his right hip. The Panel believes that his injuries are stable for the assessment of permanent impairment.

1. The determination as to permanent impairment is made in accordance with the AMA4 Guides and Part 6 of the Guidelines.
2. In terms of the lumbar spine, he is assessed as lumbosacral spine DRE category II, Table 73, page 110 of the AMA 4 and has 5% WPI based on asymmetry of lumbar movement and non-verifiable radicular complaints down his right leg. There appears to be an L5/S1 disc injury related to the subject accident.
3. The left knee is still symptomatic so the soft tissue injury present has not resolved. There is no impairment.
4. The cervical spine is still tender at the base even though he has minimal symptoms. It would not be considered to have completely resolved. This injury is a soft tissue injury.
5. There are no particular ongoing symptoms in the thoracic region. The Panel accepts that the soft tissue injury in this region has resolved.
6. In regards to the impairment assessment of the right hip, he does have less than 80° of flexion which would result in 4% WPI under Table 40. This would make his current total WPI 9%. There was no objective evidence of any pre-existing restriction to flexion of the right hip.
7. The hip impairment may change if he goes ahead and has a further total hip replacement.

1. The claimant's WPI caused by the motor accident is 9% and is not greater than 10%. The injuries assessed and the impairment percentages found by the Panel are different to those assessed in the medical assessment under review.
2. As such, the Panel revokes the certificate of Medical Assessor Home dated

2 September 2024 and issues a new certificate in accordance with the Panel's above findings and reasons for assessment. 3. The new certificate is located at the front page of this statement of reasons.

[1] See Division 4.3 of the Motor Accident Injuries Act 2017 (MAI Act).

[5] The applicable version of the Guidelines is version 9.3.