1. The Panel revokes the Assessment of Medical Assessor Assem of 10 July 2024 that the claimant sustained whole person impairment of 10% and substitutes the determination to certify that the injuries referred to the Panel and caused by the accident gave rise to a whole person impairment of 6%

1. The claimant, Mansoor Ahmad Formoli (Mr Formoli), was involved in a motor vehicle accident (the accident) on 8 December 2021.
2. He was the front seat passenger in a dual cab utility vehicle hit from behind causing the vehicle to roll and hit a pole on the left-side of the road. The air bags deployed. The vehicle in which Mr Formoli was travelling was severely damaged and later written off.
3. Mr Formoli alleged that he had sustained injuries to various areas of his body.
4. Medical Assessor Mohammed Assem certified that Mr Formoli, whom he examined the previous day, had sustained injuries which did not give rise to a whole person impairment (WPI) greater than 10%.
5. A medical dispute about the degree of Mr Formoli's WPI has arisen in connection with his claim. This constitutes a medical assessment matter under Schedule 2, cl 2(a) of the Motor Accidents Injuries Act 2017 (MAI Act).

1. Mr Formoli sought a review of the Medical Assessment under s 7.26 of the MAI Act (the Review). The application for referral of a medical assessment to a Review Panel (the Panel) was made by Mr Formoli within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought: s 7.26(10) of the MAI Act.
2. Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A "new decision maker" is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the Medical Assessment which is the subject of the Review was made on or after 1 March 2021, the new review provisions apply.
3. A delegate of the President of the Commission determined there was reasonable cause to suspect that the Medical Assessment was incorrect in a material respect and referred the matter to the Panel.
4. The President's delegate has convened this Panel to conduct the review of the Medical Assessment.
5. Part 5 of 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: s 41(2) of the PIC Act.
6. 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. The Review is by way of a new assessment of all matters with which the medical assessment is concerned: s 7.26(6) of the MAI Act. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
7. 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 and may determine the proceedings solely based on the written application: Rule 128 of the PIC Rules.

1. Sections 5D and 5E of the Civil Liability Act 2002 (the CLA) apply to the MAI Act: s 3B(2) of the CLA.
2. Mr Formoli's claim and entitlements to compensation are governed by the provisions of the MAI Act. An injured person can make a claim for both economic losses and non-economic loss damages.
3. However, s 4.11 of the MAI Act provides that 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 the motor accident is greater than 10%.

1. Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).
2. The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association's Guides to the Evaluation of Permanent Impairment Fourth Edition (AMA 4 Guides). The Guidelines are definitive in respect of the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed: cl 6.2 of the Guidelines.
3. Permanent impairment is assessed in accordance with Chapter 6 of the Guidelines.
4. Causation of injury is addressed in cls 6.5, 6.6 and 6.7 of the Guidelines.
5. Clause 6.6 of the Guidelines notes:

"6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:

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

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

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

"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. Pre-existing impairment is addressed in cls 6.31, 6.32 and 6.33 of the Guidelines.
2. The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored: cl 6.31 of the Guidelines.
3. Clause 6.32 of the Guidelines states:

"The capacity of a medical assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA 4 Guides (page 10): 'For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.' Refer to clause 6.218 for the approach to a pre-existing psychiatric impairment."

1. Medical Assessor Assem examined Mr Formoli on 9 July 2024. He had the documents attached to the Application and the Reply, but no further documents.
2. The Medical Assessor took a brief pre-accident history [8] and then proceeded to take a history of the accident [9] (the history does not materially differ from the history taken by the Review Panel).
3. Medical Assessor Assem took a history of symptoms and treatment, noting that the assessment at the hospital revealed a minimally displaced fracture of the L4 transverse process. Once an interpreter was available, it was recognised that Mr Formoli had also sustained injuries to his neck, back, hip, shoulders, right knee and left arm.
4. Medical Assessor Assem considered it important to highlight that the ambulance report recorded a contusion to his right hip, however, he indicated that his left hip was injured. Without notice, he presented photographs on his mobile phone that clearly depicted significant bruising on both his left arm and left hip.
5. Mr Formoli was discharged two days after the accident under the care of his general practitioner (GP). In a follow-up consultation on 14 December 2021, a fracture of the L4 lumbar vertebra was confirmed.
6. During a follow-up consultation on 11 January 2022, Mr Formoli was documented as complaining of neck pain, but he did not at that time report any problems with his knee or hand.
7. In his application for Personal Injury Benefits, Mr Formoli listed multiple areas of complaint, including injuries to his neck, back, hips, knee, head, hand, and left arm.
8. On 4 May 2022, Mr Formoli complained to his GP of right-knee pain.
9. Medical Assessor Assem questioned Mr Formoli as to why there was a delay in reporting his knee complaints. He said that he had always mentioned these injuries even though it was not documented.
10. Mr Formoli was referred to Dr Vera Kinzel, Orthopaedic Surgeon. She focused in particular on his right knee.
11. After initial conservative management, Mr Formoli had surgery for his right knee on 22 November 2022.
12. Symptoms at the time of Medical Assessor Assem's examination are set out at [12]:
    • [12] He complains of intermittent neck discomfort associated with frontal headaches radiating to both shoulders then down to his thoracic spine. He has 'pins and needles' predominately affecting his 2 nd, 3rd and 4th fingers. At the present time, he rates the discomfort as 8/10 on the pain scale. He obtains partial relief with analgesia.

He stood at that point of the consultation. He states that he has intermittent numbness and 'pins and needles' in both hands. His shoulders are always sore limiting his ability to elevate his arms.

He has chronic pain across his lower back that he describes as severe. The pain radiates to his feet are associated with 'pins and needles' and numbness in the soles of his feet. He has pain in his left hip and buttock, worse when negotiating steps or walking long distances.

He reports pain in his right knee that he rates as 9/10 on the pain scale. His left knee feels 'shaky' when descending stairs.

He lives with a friend in an apartment at Merrylands. He has remained off work since the accident.

1. Medical Assessor Assem sets out the current and proposed treatment at [13]:
   • [13] He presented all of his medications which included Tramadol, Endone, Targin, Oxycodone, Panadol Extra, CBD oil, Naproxen, Palexia, Quietiapine, Prazosin and Duloxetine
2. At [14]-[19] Medical Assessor Assem sets out his clinical examination:
   • [14] General presentation

He appeared to be in some discomfort. He ambulated with a slow, cautious gait pattern. He demonstrated pain behaviour in the form of grimacing and vocalisation. His height was 175 cm and he weighed 93 kg. He was informed at the time of examination not to engage in any manoeuvre beyond tolerance or which may cause harm or injury.

Tenderness was detected upon palpation, and there was evident guarding over the upper trapezius area.

His cervical motions were minimal, with cervical extension being non-existent. Additionally, cervical flexion was observed to be reduced to one quarter of the normal range of motion. Both rotation and lateral flexion of the cervical spine were also symmetrically reduced to one quarter of their normal range.

Upper reflexes presented as symmetrically reduced. Power, tone, and sensation in was normal. Neural tension signs were negative. There was no significant measurable difference in the circumference of his upper arms or forearms.

He was wearing a lumbar corset that was removed. There is some flattening of the lumbar lordosis. On palpation, there was tenderness but no guarding or spasm. His lumbar movements were significantly restricted. Specifically, when asked to perform forward flexion, he was only able to reach their upper thighs, and extension movements could not be performed at all. Moreover, his ability to perform lateral flexion and rotation was symmetrically reduced to merely a quarter of their normal range.

Neurological examination was normal with normal power, tone, sensation, and reflexes in the lower extremities. There was no significant measurable difference in the circumference of his calves. Neural tension signs were negative.

In the evaluation of the patient's upper extremity shoulder movements, the active range of motion (ROM) was comprehensively measured for both sides. The results indicated that both the right and left shoulders exhibited identical motion limitations. The flexion for each shoulder was recorded at 100 degrees and the extension at 20 degrees. Both shoulders demonstrated adduction at 0 degrees and abduction at 90 degrees. The internal rotation for each was measured at 50 degrees. There was a complete lack of external rotation in both shoulders, recorded at 0 degrees.

His limitations were significantly influenced by pain behaviours that appeared excessive compared to typical expectations. Upon being informed that Dr Bodel had noted a normal range of motion in his left shoulder and only a mild limitation in his right shoulder, he indicated that pain was the primary restricting factor. He stated that his mobility improves after taking analgesia. His movements were reported to be limited by shoulder pain rather than a secondary limitation due to pain arising from the cervical spine.

There were no abnormalities or limitations detected when examining his hands.

Assessment of right hip movements was not possible due to severe pain experienced in the right knee. In contrast, movements of the left hip were found to be within normal limits.

He was wearing a knee brace that was removed for the assessment. Tests for instability could not be performed due to complaints of severe pain.

He exhibited significant pain behaviour, accompanied by numerous inconsistencies in his presentation. These inconsistencies were brought to his attention, and his responses were noted.

1. Medical Assessor Assem summarised the relevant documents at [20]:
   • [20] Dr. Bodel, orthopaedic surgeon, report dated 4 September 2023

He accepted that the injuries to Mr. Formoli's neck, back, right shoulder, and right knee were causally related to the motor vehicle accident. He acknowledged the severe nature of the accident and considered it plausible that the physical trauma sustained could cause such injuries, even if some symptoms were documented weeks later. He found a rotator cuff injury in the right shoulder, limiting its movements, and a tear of the medial meniscus in the right knee, which was later confirmed by surgery. Dr. Bodel concluded with an impairment rating of 15% whole person impairment (WPI), broken down into 6% for the right upper extremity, 5% for the cervicothoracic spine, 4% for the right lower extremity, and 0% for the lumbosacral spine.

Medical Assessor Assem commented: A minimally displaced fracture to the transverse process gives rise to 5% WPI.

• [20] Dr Bentivoglio, orthopaedic surgeon, report dated 18 September 2023

Dr. Bentivoglio acknowledged the fracture of the left L4 transverse process and the medial meniscal tear in the right knee as causally related to the accident. However, he disputed the causal relationship for the neck, back, and right shoulder injuries. Dr. Bentivoglio emphasized the lack of contemporaneous documentation and the significant delay in reporting these symptoms, which he believed undermined the credibility of these complaints. He also noted gross exaggeration in Mr Formoli's presentation during the examination, which further affected his assessment. Dr. Bentivoglio's examination did not find significant impairment in the neck and back, citing the absence of severe findings on imaging and physical examination. He did not find objective evidence to support impairment in the right shoulder and noted that the surgery for the right knee meniscal tear was successful with minimal residual impairment. For the lumbar spine, he acknowledged the L4 transverse process fracture but noted that such fractures typically do not cause significant symptoms. Consequently, Dr. Bentivoglio provided a lower total WPI of 6%, which included 5% for the L4 transverse process fracture and 1% for the right knee meniscal tear.

Medical Assessor Assem commented: A five-month delay in reporting knee complaints is generally considered excessive, particularly if the injury is significant, such as an acute tear to the meniscus. In cases of acute meniscal tears resulting from a traumatic event like a motor vehicle accident, there would be immediate and severe symptoms of pain, swelling, instability or locking causing the patient to have difficulty weight bearing prompting earlier medical attention.

1. Medical Assessor Assem arrived at the following diagnosis at [22]:
   • [22] "Knee - Tear of the Medial Meniscus:

His right knee injury, diagnosed as a tear of the medial meniscus, was first recorded in the GP notes dated 4 May 2022, approximately five months after the accident. In the case of Bugat v Fox [2014] NSWSC 88, the absence of contemporaneous documentation was not the only determining factor in establishing a causal link. Given the significant delay in the presentation of knee pain and the absence of early complaints or objective findings related to the knee, it is challenging to establish a direct causal relationship with the subject accident. If the injury had been significant at the time of the accident, it is expected that the claimant would have reported pain, stiffness, and difficulty ambulating immediately.

Shoulder - Rotator Cuff Injury to the Region of the Right Shoulder:

He reported shoulder pain involving both shoulders, with movements limited and symmetrically reduced. However, the absence of contemporaneous evidence of shoulder injury complicates establishing a direct causal link. The inconsistencies in his presentation, including the delayed reporting and claims that limitations were due to pain that might improve with analgesia, further complicate the assessment. Given these factors, it is difficult to definitively establish a causal relationship between the accident and the shoulder injury.

The claimant sustained a minimally displaced fracture of the left L4 transverse process, confirmed at Westmead Hospital immediately following the accident. This injury is well-documented and directly related to the accident. Subsequent medical records consistently report ongoing lumbar spine pain and limitations. Therefore, the lumbar spine soft tissue injury is causally related to the accident.

He reported neck pain following the accident, with symptoms documented approximately three weeks after the incident. Considering the nature and severity of the high-speed collision, including the deployment of the airbags which likely contributed to cervical strain, it is reasonable to accept that the injury to his cervical spine is causally related to the subject accident. The delayed documentation of symptoms by three weeks does not negate the causal relationship, as it is plausible that the initial focus on more apparent injuries may have led to a subsequent identification of cervical spine issues. Therefore, based on the mechanism of injury, I find that the cervical spine soft tissue injury is as a result of the accident.

The injury he sustained to his left hip is directly attributable to the accident in question. This determination is supported by clinical records that were documented soon after the accident, as well as photographs that clearly show substantial bruising, which were examined inadvertently. During the assessment of Mr Formoli, I encountered significant limitations in evaluating his left hip due to severe pain and restricted motion in his left knee. The presence of acute pain in his left knee impeded the comprehensive examination of his left hip as any movements required for a thorough assessment were causing substantial discomfort and could potentially aggravate his knee condition. Given this situation, I recommend that the examination of Mr Formoli's left hip be deferred until his left knee symptoms are sufficiently managed and he has reached maximal medical improvement."

1. At [23] Medical Assessor Assem concluded that the following injuries were caused by the accident:
   • Lumbar Spine - Fracture left L4 transverse process
   • Cervical spine - soft tissue injury
2. At [24] Medical Assessor Assem concluded that the following injuries were NOT caused by the accident:
   • Knee - Tear of the medial meniscus
   • Shoulder - Rotator cuff injury to the region of the right shoulder
3. Medical Assessor Assem at [26] set out a permanent impairment table. He was of the opinion that Mr Formoli:

He has neck pain and stiffness with asymmetry of motion, spinal dysmetria and muscle guarding giving a DRE Cervicothoracic Category II or 5% WPI (AMA4, 3/104).

Mr Formoli has a minimally displaced fracture of the left L4 transverse process giving a DRE Lumbosacral Category II or 5% WPI (MAA Guidelines, paragraph 6.149, p 109). There were no associated radiculopathy or focal neurological deficits.

AMA4 Guides/ Guidelines References (chapter/ page/table)

1. Medical Assessor Assem concluded that Mr Formoli had a 10% WPI caused by the accident.

Insurer's submissions of 11 April 2024 [Revised 19 November 2024]

1. The Panel summarises QBE's submissions of 11 April 2024 by reference to paragraph numbers:

• [3] Mr Formoli seeks assessment of the following injuries:

(a) Psychiatric injury

(b) Cervical spine

(c) Lumbar spine

(d) Right upper extremity (shoulder) - rotator cuff injury

(e) Right lower extremity (knee) - tear of the medial meniscus

• [4] QBE disputes causation and the percentage of any permanent impairment arising from any injuries found to have been caused in the subject accident.

[5]-[6] QBE outlines Mr Formoli's immigration and detention history.

[7]-[8] QBE outlines the history of the accident.

[9]-[11] QBE submits only the lumbar spine fracture was documented in hospital and early GP records, while later claims include additional injuries such as the shoulder and knee, which were not initially reported.

[12]-[13] QBE relies on reports from Dr Prior and Dr Bentivoglio; Mr Formoli relies on reports from Dr Anand and Dr Bodel.

[14] "The insurer submits that the claimant's significant mental health complaints and disabilities relate to predominantly (if not entirely) to a pre-existing condition which, as the medical records indicate, was significant and longstanding.

[15] The claimant did not provide his own qualified psychiatric expert, Dr Anand, with an accurate history of the significant pre-accident history of mental health issues (including PTSD), rendering the opinions expressed in those reports of limited use, other than as evidence in relation to issues of credit. He similarly gave the insurer's qualified psychiatric expert, Dr Prior, an inaccurate history of the extent of his pre-accident mental health status.

[16] The insurer further submits that, in respect to the various physical injuries sustained in the subject accident, there is no contemporaneous evidence of injury to the body parts now being asserted except for the lumbar spine (L4 transverse process fracture).

[17] The insurer submits that there are credit issues having regard to the information provided by the claimant to the qualified medical practitioners, in particular Dr Anand and Dr Prior, and also bearing in mind the findings of Dr Bentivoglio who considered that there was evidence of exaggeration. As such any medical assessor will need to apply a considerable degree of circumspection when considering the claimant's injuries generally, and also in respect to causation and the extent to which any ongoing symptoms are related to the subject accident."

[18]-[19] QBE disputes the cause and extent of any psychiatric injury caused or aggravated by the accident, pointing to extensive pre-accident PTSD, anxiety, and depression. QBE makes reference to clinical notes of the Ms Momartin (psychologist), Ms Mier (social worker), Ms Hol (psychologist), Dr Majlish (GP),

[20]-[21] QBE submits that post-accident GP records note improved mental state and mood and a lower K10 score of 35.

[22]-[23] QBE critiques Dr Anand's report for relying on inaccurate history and for failing to apply clause 6.31 of the Guidelines, arguing a greater pre-existing impairment should have been deducted.

[24]-[25] QBE submits Mr Formoli also gave inaccurate history to Dr Prior, denying psychiatric history despite extensive documented conditions.

[26]-[27] QBE submits that self-reporting must be treated with caution due to credit concerns and that contemporaneous records should be preferred.

[28]-[29] QBE disputes causation of the cervical spine injury due to the accident, noting an absence of neck complaints in hospital or GP records until three months post-accident.

[30]-[32] QBE submits GP records from December 2021 to January 2022 refer only to lumbar spine and hip injuries.

[33]-[35] QBE submits the first clinical reference to neck pain in February-March 2022, being three months after the accident, suggests the accident has no causal relationship to the cervical spine injury. Dr Bodel did not address the delay. Dr Bentivoglio found no impairment and noted exaggeration.

[36]-[37] QBE accepts the L4 fracture but submits it does not produce any significant symptoms and does not justify use of a brace or leg symptoms, relying on the report of Dr Bentivoglio.

[38]-[39] QBE disputes causation. QBE submits the right shoulder was not mentioned in early reports or in the claimant's original benefit application.

[40]-[47] QBE notes consistent omission of any right shoulder complaints across multiple medical records and reports up to late 2023.

[48]-[49] QBE submits that while Dr Bodel assessed a shoulder injury, he did not explain how it was caused by the accident. Dr Bentivoglio found no complaint or impairment.

[50]-[52] QBE disputes causation and extent of the right knee injury in respect of the accident, noting no reference to a knee injury in early GP or hospital records.

[53]-[54] QBE submits the first mention of right knee pain was on 4 May 2022, five months post-accident, with a physio referral that day.

[55]-[56] QBE argues Dr Bodel relied on an incorrect history provided by Mr Formoli, suggesting initial hospital diagnosis included the right knee, which QBE submits it did not.

[57] QBE submits CT scans and hospital discharge notes only recorded the L4 fracture and abdominal pain with no mention of knee injury.

[58]-[59] QBE notes Dr Bentivoglio assessed 1% WPI for the meniscus tear but, like Dr Bodel, relied on incorrect history and did not review clinical records.

[60]-[61] Dr Bentivoglio questioned the extent of symptoms and identified exaggeration.

[62] QBE submits that the five-month delay in reporting right knee pain is inconsistent with the nature of the injury alleged.

1. The Panel summarises Mr Formoli's submissions in support of inclusion of hip injury to be assessed of 11 July 2024 by reference to paragraph numbers:
   • [1] Mr Formoli submits that due to an oversight, Medical Assessor Assem was not specifically asked to assess the claimant's left hip injury.
   • [2] Mr Formoli submits that his hip injury should be included in the list of injuries to be assessed.
   • [3] Mr Formoli provides a dated list of entries from the provided bundle which records complaints of an injury to his hip.
   • [5] Mr Formoli submits that QBE does not consent to the left hip being assessed on the basis that neither Dr Bodel nor Dr Bentivoglio assessed any permanent impairment in relation to the left hip and on that basis there is therefore no "dispute" for the purpose of s.7.20 of the Motor Accident Injuries Act.
   • [7] Mr Formoli submits that Dr Bodel did not measure any range of motion in relation to his hip and therefore did not make any assessment of whole person impairment in relation to the hip. Mr Formoli further submits there was no reason to bring this apparent discrepancy to the attention of Dr Bodel as he assessed the claimant's whole person impairment at 15%, already over the 10% threshold.
   • [8] Dr Bentivoglio noted that the claimant felt he had decreased movement present in his hip because of pain, however Dr Bentivoglio found full range of movement in the hips whilst "moving [the claimant's] left hip slowly".

Claimant's further submissions of 27 August 2024

1. The Panel summarises Mr Formoli's submissions in support of application for review of 27 August 2024 by reference to paragraph numbers:
   • [4] In his certificate Dr Assem found that the following injuries were caused by the subject accident:

• Lumbar spine - fracture left L4 transverse process, attracting a 5% whole person impairment;

• Cervical spine - soft tissue injury, attracting a 5% whole person impairment.

• [5] Dr Assem found that the following injuries were not caused by the subject accident:

• Shoulder - rotator cuff injury to the region of the right shoulder.

• [6] Mr Formoli submits that his left hip was not initially assessed but upon agreement for the parties, was later assessed, with Dr Assem attributing it to the accident but deferring formal assessment due to pain from the knee.
• [7] Mr Formoli submits that Dr Assem struggled to find a causal relationship between the right knee and the subject accident due to an absence of early complaints (GP records of 4 May 2022).
• [8] Mr Formoli submits that Dr Assem also rejected the shoulder injury for lack of contemporaneous documentation and inconsistencies in presentation.

• [9] Mr Formoli submits that Dr Assem erred by:

(a) finding no causal link for the right knee injury;

(b) relying excessively on GP clinical notes;

(c) finding no causal link for the right shoulder injury;

(d) relying excessively on GP clinical notes;

(e) unduly relying on inconsistencies; and

(f) failing to consider late material provided.

• [10] Mr Formoli submits that an MRI on 5 July 2022 confirmed a medial meniscus tear, and he underwent surgery in November 2022.
• [11] Mr Formoli submits that both his (Dr Bodel) and the Insurer's orthopaedic surgeons (Dr Bentivoglio) accepted that the knee injury was caused by the accident.
• [12] Mr Formoli submits that Dr Assem correctly cited Bugat v Fox [2014] NSWSC 888 and noted the effect of that decision as being "the absence of contemporaneous documentation was not the only determining factor in establishing a causal link".
• [13] Mr Formoli submits that despite this, Dr Assem relied solely on delayed GP records in finding a lack of causal link between the knee injury and the accident.
• [14] Mr Formoli submits that Dr Assem did not consider late documents.
• [15] Mr Formoli disputes that 4 May 2022 was the first mention of knee pain, noting earlier contemporaneous records of complaint of knee pain elsewhere
• [16] Mr Formoli notes that his 8 July 2024 statement included:

(a) a police statement dated 8 February 2022 (mentioning knee pain); and

(b) an application for personal injury benefits dated 29 March 2022 (mentioning knee injury).

• [17] Mr Formoli submits that these documents contradict Dr Assem's claim of a five-month delay.
• [18] Mr Formoli reiterates that his 29 March 2022 application also referenced the knee injury.
• [19] Mr Formoli submits he told Dr Assem he had always mentioned the knee injury, even if not recorded.
• [20] Mr Formoli's statement explains that after hospital discharge, he experienced knee pain as the pain relief wore off.
• [21] Mr Formoli submits that his first GP consultation was in English without an interpreter, and language difficulties may have caused misunderstanding.
• [22] Mr Formoli submits that no other incident occurred between the accident and his 8 February 2022 police statement, suggesting the accident caused the knee injury.

• [24] Mr Formoli submits that Dr Assem again relied on delayed reporting and inconsistencies to deny causation for the shoulder.
• [25] Mr Formoli refers to his 8 July 2024 statement that shoulder pain radiated from his neck.
• [26] Mr Formoli submits that once painkillers wore off, he noticed pain in his shoulders and reported all injuries to his GP.
• [27] Mr Formoli submits that if shoulder symptoms are related to the cervical injury, they remain assessable under Nguyen v The Motor Accidents Authority [2011] NSWSC 351.
• [28] Mr Formoli disputes the alleged inconsistencies in respect to his shoulder, stating they were based on delayed reporting and analgesic use.
• [29] Mr Formoli submits the supposed delay was a lack of documentation, not actual delay in symptom onset.
• [30] Mr Formoli submits that improvement with pain relief is not an inconsistency and no other inconsistencies were specified.

• [31] Mr Formoli submits that although instability tests were limited due to pain, Dr Assem recorded knee range of motion:
  • Flexion: Right ROM 70°, Left ROM 130°;
  • Extension: Right ROM 30°, Left ROM 0°.
• [32] Mr Formoli submits that the restricted range of motion corresponds to 8% WPI under Table 41 of AMA 4.

• [33] Mr Formoli notes that shoulder ROM was recorded as:
  • Flexion: ROM 100° (both sides);
  • Extension: ROM 20°(both sides);
  • Adduction: ROM 0°(both sides);
  • Abduction: ROM 70°(both sides);
  • Internal rotation: ROM 50°(both sides);
  • External rotation: ROM 0°(both sides).
• [34] Mr Formoli submits that these measurements equate to 18% upper extremity impairment per shoulder, or 11% WPI each.
• [35] Mr Formoli submits that when added to the 10% already assessed for cervical/lumbar injuries, the above errors materially affect the overall impairment rating

Insurer's submissions in reply of 26 September 2024 [2024.11.19]

1. The Panel summarises QBE's submissions in reply of 26 September 2024 by reference to paragraph numbers:

[5]-[6] QBE cites s 7.26(2) of the MAI Act and submits that the criteria for referral to a review panel are not met and the application should be dismissed.

[7] QBE submits Mr Formoli's allegation that Assessor Assem erred in finding no causal link between the right knee and shoulder injuries and subject accident, relying unduly on GP notes, relying unduly on purported inconsistencies, and failing to consider additional material.

[13]-[14] QBE submits that it was open to Assessor Assem to rely on delayed GP reporting and inconsistencies, all considered and put to Mr Formoli as per the Guidelines.

[15] QBE notes that Assessor Assem considered the absence of knee complaints in hospital records, initial GP visits, and that right knee complaints first appeared five months post-accident.

[16]-[17] QBE submits that Mr Formoli's explanation about language barriers and alleged consistent reporting was heard and rejected based on clinical judgment.

[18]-[19] QBE submits the assessor correctly referenced Bugat v Fox [2014] NSWSC 88 to show that contemporaneous records are not the only determining factor.

[20] QBE disputes Mr Formoli's claim that earlier documents mentioning the knee render the delay irrelevant, noting that the assessor acknowledged these but focused on the absence in medical records.

[21] QBE submits Mr Formoli's explanations (i.e. pain masked by medication vs. always reporting) are inconsistent and undermine his credibility.

[22] QBE submits that no error has been demonstrated in relation to the right knee.

[23]-[24] QBE submits that it was open to the assessor to rely on GP records, having considered the evidence, identified inconsistencies, and engaged with the claimant in accordance with the Guidelines.

[25] QBE notes that Assessor Assem identified delayed reporting and inconsistent explanations, such as Mr Formoli's assertions that the limitations were due to pain that might improve with analgesia, but still found no causal link.

[26] The first record of shoulder pain was in Dr Bodel's report dated 4 September 2023, 21 months post-accident.

[27] QBE reiterates that the "masked pain" explanation is inconsistent with Mr Formoli's claim that he had always reported shoulder pain.

[28]-[29] QBE submits that Mr Formoli misread the certificate; the assessor listed several complicating factors (not just analgesia) that affected his ability to confirm causation.

[30]-[31] QBE clarifies that inconsistencies, delayed reporting, and analgesia explanations were distinct but interrelated issues complicating the assessment.

[32]-[33] QBE submits that the assessor complied with Guidelines by putting inconsistencies to the claimant and obtaining a response.

[34] QBE submits that the assessor did not rely solely on contemporaneous records, but also his own examination, clinical observations, and comparison with Dr Bodel's assessment.

[35]-[36] QBE rejects Mr Formoli's reliance on Nguyen, submitting that the assessor clearly attributed shoulder limitations to primary pain rather than cervical spine referral.

[39]-[40] QBE notes that while no material error is established, it seeks correction of an obvious clerical error in the re-issued certificate.

[41]-[42] QBE submits that the assessor mistakenly deferred assessment of the left hip due to ongoing left knee symptoms, however, the injury was to the right knee.

[43]-[44] QBE identifies inconsistencies across pages 1, 7-9 of the certificate where the left and right limbs appear to be confused.

[45]-[47] QBE submits that it was the right knee that limited right hip movement, and the left hip, having normal range, was assessable.

[48] QBE concludes that the assessor mistakenly mixed up right and left sides, and should have used the unimpacted left hip measurements to assess the left hip.

1. Medical Assessor Shane Moloney examined Mr Formoli for the Panel.
2. An interpreter, Mohammad Amin Shahab (NAATI no. CPN3XJ32N) was in attendance via a telephone linkup to assist when requested for the purposes of interpreting where required.
3. Mr Formoli attended the medical suites at the Commission on 9 April 2025. He was unaccompanied.

1. Mr Formoli was born in Afghanistan and migrated to Australia in July 2018. He states that before the accident he had been working as a house painter and also in a tyre fitting agency. This work was on a full-time capacity. He states he had had no previous accidents and no previous injuries to those assessed today. At the time of the accident, he was single and living alone.

1. Mr Formoli was a front seat passenger on 8 December 2021 when the car he was in was hit from the rear causing it to roll over 4 times and hit a pole. He was wearing a seatbelt at the time and airbags were deployed. The police and ambulance officers attended the scene of the accident and he was transported to Westmead Hospital.

History of symptoms and treatment following the motor accident

1. At Westmead Hospital, an x-ray reported a minimally displaced fracture of the left L4 transverse process. He was treated with analgesia and discharged after 2 days. Mr Formoli states that he also had neck and left shoulder pain with a cut to the left upper arm and bruising to the left hip region.
2. On 14 December 2021, he consulted his GP, Dr Majlish who organised physiotherapy and hydrotherapy. Mr Formoli states that he noticed right knee pain when he tapered off the analgesics for the lumbar spine. He GP reported neck pain in a consultation one month after the accident and right knee pain in May 2022 which was 5 months after the accident. Mr Formoli states that he had initial neck and right knee pain.
3. His GP referred him to an orthopaedic surgeon Dr Kinzel and due to persistent pain, an MRI was organised on 5 July 2022 which reported intact ligaments with intrasubstance degeneration with a cyst in the medial meniscus. Dr Kinzel undertook an arthroscopy of the right knee on 22 November 2022 which gave no benefit and subsequently arrange PRP injections to the right knee, left hip and neck which also gave no significant improvement. On 28 March 2025, the pain specialist, Dr Mir organised nerve blocks around the right knee which also gave no benefit. Mr Formoli consulted Dr Mir the day before this examination and was prescribed further Endone and tramadol. He has a follow-up appointment in 3 weeks. He also consulted another pain specialist, Dr Alistair Ramachandran who works in the same clinic as Dr Mir.

Further injuries or accidents sustained since 2021.

1. Mr Formoli states that he fell at home one month ago and was taken to hospital where he was assessed with a chest x-ray on 8 March 2025. He states at that time he had chest pain and felt dizzy and landed on both shoulders as he fell forward on the outstretched arms

1. At present, Mr Formoli has constant neck pain which radiates into both shoulder regions and he gets intermittent numbness in both hands. There is a central low back pain which radiates into both buttocks and the lateral lumbar region. He has a feeling of pins and needles and occasionally numbness in the soles of both feet. This increases with walking after more than 5 minutes. There is a constant right knee pain which feels inflamed and left hip pain which increases with walking up and down stairs. The left knee now feels unstable walking down stairs.

1. No manual therapy is being undertaken at present although hydrotherapy was recommended but has not commenced yet.
2. Present medication is sertraline one hundred milligrams 2 a day, Lyrica 75 mg 2 at night, Naprosyn 500 mg one twice a day, duloxetine 2 in the morning, Nexium One-A-Day,prazosin 2 mg half at night, Targin/Endone/oxycodone 5 mg at various times. Tramadol 1 to 2 three times per day and Seroquel 25 mg 1 to 2 at night.
3. Mr Formoli arrived in a mobilised wheelchair which he says was provided by the insurer 6 months after the accident.

1. Mr Formoli was able to get out of his wheelchair and walked with a slow shuffling gait. He sat with a flat affect and constant pain behaviour patterns. He states that he is right-handed and was measured at 171 cm and 93 kg.

1. On testing range of movement, it was only possible to move 10° in flexion/extension, side bending and rotation with no asymmetry. He stated that it was too painful to move any further than that in any direction. On palpation there was general tenderness over the paravertebral muscles, sternocleidomastoid muscles, both trapezius muscles and clavicles. No guarding or spasm was noted in the cervical musculature.
2. On neurological examination of the upper limbs, reflexes were equal bilaterally with normal power and no sensory changes were noted. No muscle wasting was apparent with circumference of the upper arms 29 cm bilaterally (10 cm above the olecranon process) and in the upper forearms 26 cm bilaterally (5 cm below the olecranon process).

1. Mr Formoli walked with a slow shuffling gait and was unable to stand on his heels and toes or squat. On testing range of movement forward flexion and extension were 10% of expected range, side bending was 20% of expected range bilaterally and rotation was 10% of expected range. Mr Formoli stated it was too painful to move any further than these ranges. On palpation no guarding or spasm was noted in the lumbar musculature and straight leg raise was 60° bilaterally limited by hamstring tightness. Sciatic nerve root tension tests were negative.
2. On neurological examination of the lower limbs, reflexes were equal bilaterally with normal power and no sensory changes were noted. No muscle wasting was apparent with the circumference of the lower thighs 42 cm bilaterally (10 cm above the superior patella pole) and 38 cm at the maximum circumference of the calves.

1. Mr Formoli had a soft knee brace on the right knee and underneath that a crêpe bandage. On inspection no effusions were noted and no muscle wasting was apparent around the knee joint. There was no apparent ligament laxity on gentle testing and no crepitus on passive movement. Mr Formoli appeared to have a voluntary restriction of the right knee movement. He stated that it was too painful to do otherwise.

1. On palpation of the hips no effusions were noted with no signs of trochanteric bursitis.

Active movements were measured using a goniometer and repeated 3 times with variability in the right hip.

1. On inspection of the shoulders, no muscle wasting was apparent and there was generalised tenderness on palpation to both shoulders. On passive movement no crepitus was detected and active movement was measured using a goniometer and repeated 3 times.

1. It was discussed with Mr Formoli that there was marked variation in movements of the hips, shoulders and knees at the time of my examination and in comparison, to other medical examiners. Mr Formoli stated that the reason for this was variability in pain levels. It seemed that there was a voluntary restriction in movement of these joints. Medical Assessor Moloney discussed with him that because of inconsistency range of movement could not be used for assessing impairment which he understood. He stated that he was getting worse as time went on and becoming weaker with increased pain despite higher use of analgesics. Mr Formoli also stated that he was very depressed recently due to his increased pain.

1. There may well have been a soft tissue injury to cervical spine at the time of the accident. At the time of the examination by the Panel a classification of DRE 1 was determined which is 0% WPI. This was because there was minimal symmetrical movement of the cervical spine testing range of movement with no guarding or spasm on palpation and no signs of radiculopathy in the upper limbs. An injury to his neck reported 3 weeks after the accident to his GP and the Panel accepts that the soft tissue injury to cervical spine was reasonable to be related to the motor vehicle accident. Assessor Assem came to the same conclusion.

Lumbar spine - displaced fracture left L4 transverse process

1. It was documented at Westmead Hospital Mr Formoli sustained this fracture on the day of the accident and the Panel accepts that this injury was related to the accident. On determining permanent impairment classification of 5 % WPI has been assessed. This is a DRE ll impairment as per table 72 and descriptor on p. 102 of AMA 4th.

1. There may have been initial soft tissue injury to the left shoulder has due to the impact, there was a laceration to the left upper arm. There was no documentation of any right shoulder injury by the treating doctors. The GP referral to the treating orthopaedic surgeon ,Dr Kinzel on 29/3/22 did not list a shoulder injury. However there has been a deterioration in shoulder range of movement in the past 18 months. Dr Bodel recorded full range of movement of the left shoulder and slight loss in the right. Assessor Assem recorded very reduce range of movement in both shoulders. Mr Formoli also gives a history of falling outstretched arms 1 month prior to the examination by the Panel with resultant shoulder pain and could explain the deterioration recently in shoulder movement. The Panel does not consider that there has been any rotator cuff injury to either shoulder sustained in the subject accident and any soft tissue injury would have recovered in the past 3 years.

1. There was initial documentation of a bruising to the upper left thigh as a result of the accident. His treating GP recorded left hip pain and a month after the accident with a diagnosis of trochanteric bursitis on ultrasound. The Panel accepts that there has been a soft tissue injury to the left hip as a result of the accident. Dr Bentivoglio recorded a full range of movement of the left hip at the time of his examination in September 2023. Using range of movement of the left hip and table 40 WPI = 0% has been determined. At the time of examination by the Panel there was no tenderness over the trochanteric bursa and he had a shuffling gait which was not antalgic. Therefore, there was no evidence of trochanteric bursitis at the time of my examination.

1. The right knee pain was recorded in the police statement dated 8/2/22 which is 2 months after the accident. Right knee injury was first recorded by the treating GP 5 months after the accident. Mr Formoli was referred to the orthopaedic specialist, Dr Kinzel those treating GP on 29 March 2022 he recorded the injuries as neck pain, back pain and left hip pain. An MRI of the right knee dated 5 July 2022 reported intrasubstance degeneration which does not communicate with a meniscal surface and an adjacent cyst. The subsequent arthroscopy in November 2022 reported minor fraying of the medial meniscus which was treated with debridement. The right knee was assessed as a partial medial knee meniscectomy which is 1% WPI using table 64 of AMA 4th edition.
2. The arthroscopy gave no benefit and he has had several others treatment since then such as PRP injections and more recently peripheral nerve blocks around the right knee which have caused no relief of pain.
3. The Panel has determined that there was a soft tissue injury to the right knee in the accident resulting in a partial tear of the medial meniscus and subsequent partial meniscectomy.
4. In the witness statement of 8 February 2022, Mr Formoli stated: -

"In my back I have a fracture and I have a muscle problem with my left hip and too much pain in my neck and right knee."

1. This report, contrary to what Medical Assessor Assem said, was within three months of the accident with Christmas intervening.

1. The Medical Review Panel had a second meeting on 22 April 2025 at which Medical Assessor Moloney spoke to his report and the Panel discussed the issues and the Medical Assessor's findings, with all of which the Panel concurred.
2. The claimant submitted that Medical Assessor Assem was in error in concluding that there was no direct causal link between the accident and Mr Formoli's right knee injury.
3. Medical Assessor Assem was of the opinion that the first recording in the GP notes on 4 May 2022, approximately 5 months after the accident, was significant. He said the absence of contemporaneous documentation was not the only determining factor in establishing a causal link. However, given the significant delay in the presentation of knee pain, and the absence of early complaints or objective findings in relation to the knee, it was challenging to establish a direct causal relationship. If the injury had been significant, he expected the claimant would have reported the pain, the stiffness and difficulty moving around immediately.
4. The Panel does consider that Medical Assessor Assem was in error in finding that there was no causal link between the accident and the right knee injury.
5. The Medical Assessor made it quite clear that the absence of a reference in the clinical records of the GP was not determinative.
6. The Medical Panel does not consider that Medical Assessor Assem relied unduly on the clinical notes of the GP.
7. With respect to the rotator cuff injury to the right shoulder, it has not been established as on the balance of probabilities as being caused by the accident. There was no contemporaneous evidence of shoulder injury. Further, Medical Assessor Assem considered, and the Panel agrees, that Mr Formoli's inconsistencies in his presentation, including the delayed reporting and claims that limitations were due to pain, further complicated the assessment.
8. Given those factors, Medical Assessor Assem considered that it was difficult to definitively establish a causal relationship between the accident and the shoulder injury.
9. The Panel considers that Medical Assessor Assem's job was not to require a definitive causal connection to be established, but rather a causal relationship on the balance of probabilities.
10. Medical Assessor Moloney, on his examination, accepted that there may have been initial soft tissue injury to the left shoulder due to the impact as there was a laceration to his left upper arm. There was, however, no documentation of any right shoulder injury by any of the treating doctors.
11. Further, Medical Assessor Moloney noted that the orthopaedic surgeon to whom Mr Formoli was referred on 29 March 2022 does not list a shoulder injury.
12. Medical Assessor Moloney noted that there had been a deterioration in shoulder range of movement in the preceding 18 months.
13. Medical Assessor Moloney noted that Medical Assessor Assem had recorded a very reduced range of movement from both shoulders. He noted that Mr Formoli had also given a history of falling onto outstretched arms one month prior to the examination by the Panel with resultant shoulder pain.
14. Medical Assessor Moloney considered that the fall would explain the deterioration recently in shoulder movement.
15. Medical Assessor Moloney concluded, and the Panel agrees, that there had not been any rotator cuff injury to either shoulder in the accident and that any soft tissue injury would have recovered in the preceding 3 years.
16. With respect to the submission that the fracture of the left L4 transverse process was causally related to the accident, Medical Assessor Moloney and the Panel considered that it had been documented at Westmead Hospital that Mr Formoli sustained the fracture on the day of the accident and the panel accepted that the injury was related to the accident. He resulted in a 5% WPI DRE II as per table 72 and the descriptor on page 102 of AMA4.
17. With respect to the left hip, Medical Assessor Moloney accepted that there was initial documentation of a bruising to the upper left thigh and that this must have been a result of the accident. The treating GP recorded left hip pain a month after the accident with a diagnosis of trochanteric bursitis on ultrasound.
18. The Panel accepts this soft tissue injury to the left hip as a result of the accident and notes the range of movements recorded by Dr Bentivoglio on examination in September 2023.
19. Using range of movement of the left hip and table 40, Medical Assessor Moloney considered that there had been a 0% WPI

1. The Panel has arrived at total WPI of 6% as follows: -

1. The Panel revokes the Assessment of Medical Assessor Assem of 10 July 2024 that the claimant sustained whole person impairment of 10% and the Panel substitutes the determination to certify that the injuries referred to the Panel and caused by the accident gave rise to a WPI of 6%