MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claimant injured in a motor accident; medical dispute; review under section 7.26 about whether the motor accident caused whole person impairment (WPI) greater than 10%; Medical Assessor found accident caused all referred injuries with permanent impairment greater than 10%; insurer alleged error; Review Panel re-examined claimant; Held - Mandoukos v Allianz Australia Insurance Limited considered re right shoulder; claimant reassessed at 9% WPI; different outcome for body parts; previous certificate revoked.

Issued under Division 7.5 of the Motor Accident Injuries Act 2017

1. The Review Panel found the permanent impairment arising from injuries caused by this accident is different to that found in Medical Assessor Wijetunga's assessment certificate dated 13 June 2024.
2. Accordingly, the Review Panel revokes that certificate and issues a new certificate.
3. The Review Panel found that the motor accident caused the following injuries and assessed them as giving rise to 9% permanent impairment:
   • neck - DRE Cervicothoracic Category II;
   • lumbar spine - DRE Cervicothoracic Category I;
   • right shoulder - referred from cervical spine;
   • left shoulder - referred from cervical spine, and
   • thoracic spine - DRE Cervicothoracic Category I.
4. The accident caused injuries with a permanent impairment not greater than 10%.

1. Katelyn Hawkins (the claimant) was injured in a motor accident as a driver on

13 March 2020. Ms Hawkins, who was then 22 years old, was involved in a head on major motor vehicle accident near Cooma which resulted in the insured driver's death. 2. Ms Hawkins who had first aid training, attempted to help the insured driver before he died. Ms Hawkins' injuries were significant, but because she was living in a remote part of southern rural NSW throughout the COVID-19 pandemic her accident-related conditions went unstudied and untreated. 3. After claiming statutory benefits and damages under the Motor Accident Injuries Act 2017 (MAI Act) from the insurer a dispute arose about permanent impairment. The claimant applied to the Personal Injury Commission (Commission) to resolve this dispute. 4. The Commission referred the following injuries to Medical Assessor Nel Wijetunga:

(a) cervical spine - musculoligamentous injury/ suspected disc pathology principally/Suspected disc pathology principally in cervical and in interscapular region of thoracic spine - involving neck and upper back;

(b) thoracic spine - musculoligamentous injury/ partial thickness tear in neck or interscapular region of thoracic spine / Suspected disc pathology principally involving neck and upper back;

(c) lumbar spine - injury, and

(d) left shoulder - injury.

1. The Medical Assessor assessed the claimant and issued a certificate dated 13 June 2024. She found the accident caused all the referred injuries and assessed permanent impairment at 14%.
2. The insurer applied under s 7.26 of the MAI Act for a review of the certificate on the grounds that the assessment was incorrect in a material respect.
3. On 20 August 2024, the President of the Commission constituted this Panel to review the above certificate (the Review).
4. The Panel met on 3 February 2025 to discuss how this matter will proceed and to consider the parties' submissions, the original certificate, clinical notes, and medico-legal reports.
5. The Panel considered the accident as described could have caused the referred injuries.
6. The Panel considered it was necessary to re-examine the claimant. Medical Assessors Barnsley and Assem agreed to examine the claimant together.
7. The Medical Assessors acknowledged that the claimant could require a support person in addition to the Commission's appointed chaperone.
8. The examination took place at the Commission's medical suites on 13 May 2025.

1. The Panel must conduct the Review in accordance with s 7.26 of the MAI Act. Section 7.26(5A) provides that the Panel is to be constituted by two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
2. The Review 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: s 7.26(6) MAI Act.
3. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (Rules) are made pursuant to Part 5 of the PIC Act. The Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.
4. Version 10 of the Motor Accident Guidelines (Guidelines), effective from 15 September 2025, apply to the Review.

1. On 3 September 2024, the Panel directed the parties to file bundles that contained all material relied on for the purposes of the Review. The parties were also directed to provide submissions. The parties filed a joint bundle.
2. On 3 February 2025, the Panel noted that Medical Assessor Wijetunga assessed the right shoulder as being impaired because of the accident on the Nguyen[1] principle, but she had declined to include it in her permanent impairment assessment because the Commission did not refer that condition to her.
3. The Panel considered whether the Commission had overlooked referring the right shoulder.
4. Dr Andrew Keller's report dated 29 November 2022 and Dr James Bodel report dated

27 April 2023 refer to unilateral shoulder complaints and the findings in those reports are the basis of the disagreement about permanent impairment. Following the authority in Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71 at [73] it appeared that the right shoulder formed part of the medical dispute. 5. The Panel invited the parties to provide a statement of agreed facts and issues about the breadth of medical dispute under Rule 70 of the PIC Rule or if they cannot agree provide submissions on whether the right shoulder formed part of the medical dispute and should be included in the Panel's assessment. 6. The parties' submissions have been considered by the Panel.

1. If there is a dispute about whether the degree of permanent impairment of an injured person is sufficient for an award of damages for non-economic loss, damages may not be awarded unless the degree of permanent impairment has been assessed by a Medical Assessor under Division 7.5: s 4.12(1) MAI Act.
2. The method of assessing the degree of impairment is dealt with in s 7.21, which is in the following terms:

"7.21 Assessment of degree of permanent impairment

(1) The assessment of the degree of permanent impairment of an injured person for the purposes of this Act is to be made in accordance with the Motor Accident Guidelines. The assessed degree of permanent impairment is to be expressed as a percentage.

(2) Impairments that result from more than one injury arising out of the same motor accident are to be assessed together to assess the degree of permanent impairment of the injured person.

(3) In assessing the degree of permanent impairment, regard must not be had to any psychiatric or psychological injury, impairment, or symptoms, unless the assessment of the degree of permanent impairment is made solely with respect to the result of a psychiatric or psychological injury.

(4) A medical assessor may decline to make an assessment of the degree of permanent impairment of an injured person until the Medical Assessor is satisfied that the impairment caused by the injury has become permanent."

1. Pre-existing impairment is addressed in cls 6.31-6.33 of the Guidelines. Clause 6.34 deals with subsequent injuries.
2. Parties should note that the terms "permanent impairment" and "whole person impairment" (WPI), which appears often in medical reports mean the same thing.
3. The Guidelines state as follows with respect to causation of injury:

6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.

6.6 Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:

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

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

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

6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the 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. It is necessary for the Panel to consider whether the accident caused or contributed to the diagnosed conditions: Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372 at [75]. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible: Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 at [50]. Further, the provisions of the Civil Liability Act 2002 apply, in particular s 5D and

s 5E.

1. Medical Assessor Wijetunga's certificate dated 13 June 2024 was based on the parties' submissions, the tendered evidence and the claimant's history.
2. In respect to causation and diagnosis, the Medical Assessor noted Ms Hawkins was involved in a major motor vehicle accident that demonstrated the necessary mechanism for the claimant to suffer all of the alleged injuries to her cervical, thoracic, and lumbar spine.
3. The claimant's cervical spine diagnosis was non verifiable radiculopathy and whiplash associated disorder. That presented as DRE Category II being 5% permanent impairment.
4. Additionally, although the accident did not cause a discrete right shoulder injury and the Commission did not refer the condition, the relevant range of movement (ROM) was reduced in relation to cervical spine and whiplash associated disorder (Nguyen's principle). This would have resulted in an assessable impairment.
5. Her thoracic spine condition was related to her lumbar spine because it mainly becomes symptomatic when her lumbar spine is more severely symptomatic.
6. There was significant tenderness on the left rhomboid muscle so her diagnosis was musculoligamentous sprain of the thoracic spine. This was assessed as DRE Category I, being 0%.
7. Her lumbar spine had pain across paraspinal muscles. The neurological examination of the lumbar spine did not reflect any neurogenic aetiology.
8. There is no imaging of her lumbar spine. The diagnosis was musculoligamentous strain of the lumbar spine given tenderness in paraspinal muscles from forced forward flexion from the accident. The assessable impairment was 5% due to a DRE Category II.
9. The left shoulder soft tissue condition was plausibly due to the accident because her left arm was probably on the gearstick coupled with forced forward movement. This was assessed as 4% permanent impairment.
10. The total permanent impairment was 14%.

1. The bulk of the documentary evidence before the Panel consists of the bundles filed by the parties in accordance with the Panel's directions. The Panel has considered all this material.

1. Dr Andrew Keller, occupational physician, examined the claimant on 22 November 2022 and reported to the insurer on 29 November 2022. Dr Keller recorded that the claimant had constant neck pain radiating to the thoracic spine and both shoulders. She also had constant left shoulder and hip pain.
2. Without referring to the mechanism of the accident other than noting where it took place or where the claimant was living in the years after the accident during the pandemic the specialist referred to a lack of investigations as relevant to deciding whether the claimant had any objective lasting musculoskeletal injuries.
3. In his view, the claimant was fit to return to her pre-injury duties. He only assessed the cervical spine for permanent impairment, which he categorised as DRE Category I as 0%.
4. Dr Bodel examined the claimant and reported to the claimant's solicitors on

27 April 2023. That specialist obtained a detailed history of the accident, which was a forceful collision between the insured driver and her vehicle. 5. He noted that after the claimant extracted herself from her vehicle, she was assisting the dying insured driver and others in his car, which had rolled over until emergency services arrived. Ms Hawkins then took stock of her injuries and was aware that she had quite a large bump on the right side of the head, headache, and blurred vision. 6. She developed pain and stiffness in the neck and in the back and she told Dr Bodel she did not go to hospital. Her sister arrived to take her home and later she saw her doctor in Bombala. 7. Her main ongoing musculoskeletal pain has been neck, back and leg pain, interscapular pain and also lower back pain. 8. There were no significant scans taken. She had osteopathic treatment for several months, every one to two weeks. There was some temporary benefit with this treatment for the headache and neck pain but it did not help the interscapular pain or the lower back pain. 9. The doctor recorded the claimant is a keen equestrienne, and she had struggled with not being able to do that. 10. Dr Bodel assessed the following permanent impairment arising from the accident: * DRE Cervicothoracic Category II 5%; * DRE Thoracolumbar Category II 5%, and * 4% upper extremity impairment and that converts to a 2% for left shoulder. 11. This totals 12% permanent impairment.

(a) Waratah Medical Services records;

(b) Bombala Hospital records;

(c) Bega Hospital records;

(d) Sapphire Coast & Snowy Mountains Physiotherapy records, and

(e) Jan Hart's clinical records.

1. The claimant submitted reports and a medical assessment certificate regarding her psychological state, which may have mixed origins.
2. The preponderance of evidence was that the claimant suffered post-traumatic stress disorder as a result of the accident. The insurer disputes the nexus between her psychological conditions and the accident, but the fact that she has psychological conditions could be relevant to assessing the matter of consistency.

1. There is no history before the accident supporting the claimant having any injuries to the referred body parts.
2. Dr Bodel's report contains a more accurate history than Dr Vickery, who commented on the claimant's psychological state and Dr Keller, respectively, noting that Dr Bodel recorded more accurate and detailed histories of the claimant's symptoms and functioning.
3. Dr Keller's opinion that the accident only caused soft tissue injury which would have resolved within three months was provided despite recording that the claimant reported to him, "constant neck pain radiating to the thoracic spine and both shoulders. Left hip pain and a constant left shoulder pain" (page 5, paragraph 2).
4. There was no evidence or reasoning on the claimant's credibility or Dr Keller's not addressing her reported symptoms and complaints.
5. Dr Bodel opined that the claimant had suffered "a musculoligamentous injury involving the neck and upper part of the back... a partial thickness tear in the neck or the interscapular region of the thoracic spine which would explain her ongoing complaints."
6. Dr Bodel observed asymmetry of movement in the cervical spine with a higher level of restriction of movement noted on the claimant's right side; whereas Dr Keller observed symmetry of movement with equal movements to both sides.
7. Dr Bodel noted tenderness at the base of her neck with guarding noted dysmetria. Dr Keller did not address presence or absence of tenderness and/or guarding and no dysmetria.
8. Dr Bodel observed asymmetry of movement and guarding in the thoracic spine with a higher level of restriction of movement noted on the claimant's left side, Dr Keller observed symmetry of movement with equal movements to both sides.
9. Dr Bodel noted the claimant has guarding around the thoracolumbar spine, Dr Keller did not address presence or absence of tenderness and/or guarding.
10. Dr Bodel observed asymmetry of movement in the claimant's shoulders with a higher level of restriction of movement noted on the claimant's left side, Dr Keller observed symmetry of movement with equal movements to both sides.
11. Dr Bodel noted the claimant's tenderness near the scapula on the left-hand side with guarding. Dr Keller did not address presence or absence of tenderness and/or guarding.
12. The claimant submits that Dr Bodel's opinion should be given greater weight.
13. Occupational therapist Diane Prattley provided a report dated 16 January 2024, which recorded movements, which closely mirrored ranges of movement as measured by Dr Bodel.

1. The insurer relies on written submissions dated 12 March 2024 and 16 July 2024. The insurer disputed that the claimant's accident-related injuries could give rise to a permanent impairment which is greater than 10%.
2. In respect to a cervical spine whiplash injury the insurer refers the last report of cervical spine symptoms in the available records was on 22 November 2020. This was consistent with the claimant's cervical spine injury resolving.
3. Dr Keller noted symmetrical range of motion, no spasm, normal sensation and stated that "at other times during the consultation neck rotation appeared to be more full and more rapid without obvious restriction noted." Dr Keller ought to be preferred with respect to the cervical spine.
4. Dr Bodel assessed 5% permanent impairment in relation to the claimant's cervical spine. Dr Bodel stated that there was asymmetry of movement, however, the insurer submits that he failed to record the spinal motion. Table 6.8 of the Guidelines requires Medical Assessors to "record the range of spinal motion as a fraction or percentage of the normal range, such as cervical flexion is 3/4 or 75% of the normal range."
5. Dr Bodel speculated that he suspected "some form of disc pathology principally in the cervical and also in the interscapular region of the thoracic spine but unfortunately there are no MRI scans done to confirm this."
6. In respect to the thoracic spine Certificates of Capacity dated 1 May 2020 and 15 May 2020 indicate that the claimant sustained an injury to her neck but did not refer to the thoracic spine or left shoulder aside from a report of shoulder pain.
7. On 2 June 2020, the claimant reported to Dr Ruby Curtis that she was unharmed in the accident but had ongoing pain between her shoulder blades and neck.
8. Sapphire Coast Physiotherapy's notes indicate that the claimant first attended on

14 October 2020 and did not refer to back or shoulder pain. 9. This is consistent with the claimant not sustaining an injury to her thoracic spine in the accident. 10. Dr Keller found that the claimant displayed full symmetrical range of motion in the thoracic spine with normal power and reflexes and no spasm. Dr Keller diagnosed the claimant with a soft tissue strain with radiating pain to the thoracic spine. 11. Dr Bodel assessed 5% WPI in relation to the claimant's thoracic spine. The insurer notes that in his assessment, Dr Bodel also stated that there was asymmetry of movement in the thoracic spine but again failed to record the spinal motion as required in Table 6.8 of the Guidelines. 12. Table 6.8 also stated that Medical Assessors "must not refer to body landmarks (such as able to touch toes) to describe the available (or observed) motion." In contrast, Dr Bodel stated "she reaches forward in flexion with her hands to the mid tibia and there is increasing thoracolumbar backache at this point..." 13. Finally, as noted above, Dr Bodel opined that the claimant had pathology in the interscapular region of the thoracic spine without imaging confirming same, which should not carry weight. 14. Dr Bodel's assessment was not made in accordance with the Guidelines, Dr Keller ought to be preferred with respect to the thoracic spine. 15. The claimant's sealed application form alleges "injury to thoracolumbar spine." The insurer submits that this ought to be assessed in relation to the claimant's thoracic spine, not lumbar spine, in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). 16. Neither Dr Keller nor Dr Bodel found any lumbar spine injury . 17. Certificates of Capacity dated 1 May 2020 and 15 May 2020 indicate that the claimant injured her neck but did not refer to the thoracic spine or left shoulder aside from shoulder pain. This is consistent with finding that the claimant's left shoulder was not injured, apart from referred pain from the cervical spine. 18. Dr Keller found that although the claimant injured the cervical spine with pain radiating to the left shoulder and thoracic spine, there was no injury to the shoulder that could be assessed for permanent impairment. 19. In the alternative, the insurer submits that the claimant's shoulder injury does not give rise to any impairment on the basis that Dr Keller's examination showed the claimant has uniform range of motion between her uninjured right shoulder and allegedly injured left shoulder. The insurer disputes that there is any associated impairment in the left shoulder from the cervical spine as per the Nguyen principle. 20. Dr Keller found that the claimant's contralateral uninjured right shoulder had less than average range of mobility, with no evidence to suggest that the left shoulder wouldn't have similar findings. Should the Medical Assessor determine that the claimant sustained an injury to the left shoulder, the Medical Assessor must assess the claimant's right shoulder and subtract this value in accordance with cl 6.51 of the Guidelines. 21. The available evidence is consistent with a finding that there is no permanent impairment in the claimant's alleged left shoulder. 22. Dr Bodel diagnosed shoulder pathology, despite there being no evidence. Dr Bodel noted that there "may only be bursitis, but I feel confident that there is a partial thickness tear in the neck or the interscapular region of the thoracic spine which would explain her ongoing complaints." The insurer submits that in the absence of evidence to confirm Dr Bodel's opinions, the report of Dr Keller ought to be preferred. 23. The insurer made further submissions dated 25 March 2025 that the Review Panel does not have the jurisdiction to make a determination in relation to the right shoulder, in accordance with section 7.26(6) of the MAI Act. 24. The claimant did not serve evidence about right shoulder permanent impairment and did not list the right shoulder in the permanent impairment application form, not make any submissions right shoulder injury or impairment, did not address the right shoulder when asked to clarify the injuries, and failed to advise the Commission that the list of injuries to be referred ought to include the right shoulder, the insurer submits that the right shoulder was not in issue. 25. In the alternative, the insurer submits that the available evidence is consistent with a finding that the claimant's alleged right shoulder restriction does not give rise to any assessable impairment.

1. Ms Hawkins attended the appointment at the Commission's medical suites on 13 May 2025, accompanied by her sister, Ms Hanna Walker, and her chaperone, Ms Cara Avery. She was examined by Medical Assessor Assem and Medical Assessor Barnsley.

Pre-accident medical history and relevant personal details

1. Ms Hawkins is a 27-year-old right-hand dominant lady who was homeschooled until the age of 16 and did not pursue further formal education. She began working in physically demanding roles in rural New South Wales, including casual farmhand duties and labouring alongside her father in construction. At the time of the accident, she was employed full-time as a house painter.
2. She reported a fractured right clavicle at the age of five and a fractured elbow in childhood. She was a regular horse rider prior to the accident and had experienced minor falls, but she denied sustaining any injuries requiring medical intervention. There is no documented history of neck, shoulder, or back pain prior to this accident.

1. On 13 March 2020 at approximately 8.20 am, Ms Hawkins was driving a 2009 manual utility vehicle towing a box trailer on the highway between Cooma and Nimmitabel in the Monaro region of far south-eastern NSW. As she signalled and prepared to turn right into a property, a high-speed vehicle travelling behind overtook several cars and collided with the front-right bonnet of her vehicle.
2. The collision sheared off her bull bar and propelled her vehicle through a fence into a paddock. The offending vehicle rolled multiple times and came to rest nearby.
3. Ms Hawkins was wearing her seatbelt. The airbag did not deploy. She struck the right side of her head against the door panel and believes she may also have impacted her right shoulder in the same motion.
4. She was in shock and did not initially perceive any significant pain. Emergency services attended the scene. She was later driven home by her sister.
5. Later that day, she began experiencing headache and neck pain. By the following morning, she had developed pain across the left scapular region and lower back.
6. She did not attend hospital but later contacted a general practitioner (GP). Due to COVID-19 restrictions, her initial consultation was conducted via telehealth.

History of symptoms and treatment following the accident

1. On 3 April 2020, Ms Hawkins had her first telehealth consultation with Dr Amanda Howard. She reported muscle soreness and back pain. A subsequent telehealth consultation was made for increasing pain following a whiplash injury.
2. She commenced osteopathic treatment with Ms Frankie McGarity. The initial record from this consultation on 2 April 2020 noted that she was "stiff and sore all over body" particularly neck, upper back, hips, and shoulders.
3. An initial Certificate of Capacity/ Certificate of Fitness by Dr Amanda Howard on

14 May 2020 documented neck pain and headaches following a significant motor vehicle accident. 4. On 25 May 2020, she applied for Personal Injury Benefits. She described pain in her neck, shoulders, back and hips in that form. 5. Dr Ruby Curtis saw Ms Hawkins on 2 June 2020 and documented ongoing pain involving her neck and in between her shoulder blades. She demonstrated a normal range of neck motion but had some tenderness in the right paraspinal area. Subsequent consultations documented leg cramps. 6. She had difficulty accessing medical attention due COVID-19-related access restrictions and the remoteness of her location. However, she consistently sought care from osteopaths for shoulder, neck, and back pain. 7. In 2023, Bombala Hospital records document a presentation for back pain. The attending clinician made note of musculoskeletal lower back symptoms but no new injuries. 8. In the same year, Ms Hawkins transitioned from her painting job and started managing a horse-riding business on a part-time basis. She continued to ride horses despite reporting pain, especially in her left hip and lower back. 9. In 2024, she reported persistent bilateral shoulder and hip pain to her chiropractor. She was seen on a weekly basis when possible. Her last face-to-face GP visit was approximately six months before her latest assessment and resulted in a referral to a chiropractor.

Relevant injuries or conditions sustained since the accident

1. In January 2023, Ms Hawkins reported a fall during which she landed on her outstretched left hand. She presented with tenderness over the scaphoid, but no fracture was confirmed on imaging.

1. Ms Hawkins reported persistent pain in both shoulders. She believes her right shoulder pain developed as a result of compensatory overuse following limited use of the left arm. She describes weakness and reduced capacity in the left upper limb, particularly difficulty lifting her arm above shoulder height and occasional dropping of objects.
2. She was unable to pinpoint the exact onset of shoulder symptoms but believes they began approximately one week after the accident. She retrospectively reported that around three weeks after the accident, she began to experience numbness and tingling in the left arm, occurring three to four times per week and lasting between 30 minutes and several hours. She describes her left arm as "weak and useless" during these episodes and reports coldness and numbness in her left middle finger.
3. Cervical symptoms are described as constant discomfort radiating from the mid-cervical vertebrae to the occiput and both shoulders. These symptoms fluctuate without identifiable triggers.
4. Ms Hawkins also reports persistent pain in the lumbar spine, from L3 to S1, extending through the buttocks and posterior thighs into both popliteal fossae. The left foot experiences intermittent numbness and tingling in a global distribution. Prolonged sitting exacerbates her back pain, particularly when in a vehicle for more than 15-30 minutes. Walking does not typically provoke pain, though she reports intermittent discomfort in both hips. Occasionally, the left hip becomes stiff and "locks," preventing her from getting out of bed.
5. Although she continues to engage in horse riding, she limits these activities due to pain in her left hip and lower back. She currently works two days per week managing her horse-riding business.

1. When questioned about the apparent discrepancy between her functional capabilities observed on publicly available social media posts and her reported limitations, Ms Hawkins explained that her appearance in the videos did not reflect her everyday function.
2. She stated that she occasionally performed such actions as part of promotional material for her horse-riding business and to maintain the illusion of normalcy on social media.
3. She remarked:

"Standing on a horse isn't harder than standing on a chair," and "You can't stop life - I live with pain, but I still try to do what I love."

1. Ms Hawkins appeared well and in no apparent physical distress. She sat comfortably during the interview and ambulated with a normal gait. Her height was measured at 172cm and her weight at 54kg.
2. She was advised during the examination not to perform any manoeuvre beyond tolerance that could cause harm or exacerbate injury. She was able to stand and walk on both her heels and toes without difficulty.

1. There was increased paracervical muscle tone and tenderness to palpation but no guarding or spasm:
   • extension was restricted to approximately 1/2 of normal range;
   • flexion was reduced to approximately 3/4 of normal range;
   • rotation was symmetrical but restricted to 1/2 of normal bilaterally, and
   • lateral flexion was within normal limits.
2. There was some asymmetry of cervical movement and spinal dysmetria was present. On neurological examination, she had normal power, tone and reflexes, there was no significant measurable difference in the circumference of the upper arms or forearms. She reported global sensory changes involving the left upper limb, specifically affecting the left middle finger.

1. She was tender in the paravertebral muscles medial to the left scapular border. There was no guarding or spasm. There was symmetrical restriction of thoracic rotation to ¾ of expected, and flexion and extension were limited to ½ of normal range.
2. There was no loss of sensation over the thoracic dermatomes, and abdominal reflexes were intact:

• flexion and extension were both restricted to 1/2 of normal range;
• lateral flexion was symmetrical and reduced to 3/4 of normal, and
• rotation was also symmetrical and limited to 3/4 of expected range.

1. There was no asymmetry of spinal movement. She had no difficulty climbing on or off the examination couch. Straight leg raise was negative bilaterally. Neurological testing of the lower extremities showed normal power, tone, sensation, and reflexes.

1. There was no visible loss of shoulder contour or evidence of deltoid atrophy. She demonstrated some variability in shoulder range of motion during testing and her movements were more restricted compared to the range observed by Medical Assessor Wijetunga. When queried, she responded, "It varies on different days." Active Shoulder Range of Motion (degrees).

1. Ms Hawkins was involved in a major motor vehicle accident which resulted in a fatality of the driver of the offending vehicle. As a result of the accident her car was towed and written off.
2. The accident involved a high-speed, high-energy, angular collision from behind, which is consistent with a whiplash-type mechanism. Ms Hawkins reported hitting her head on the door panel and developing neck pain within 24 hours.
3. This is a plausible and expected response to the described impact. The Panel agreed with Medical Assessor Wijetunga that due to the severity of the accident it is plausible that she also sustained injuries to her thoracic and lumbar spine.
4. The Panel noted the insurer referred to the last report of cervical spine symptoms in the available records being on 22 November 2020. It submitted that was consistent with the claimant's cervical spine injury resolving.
5. However, Ms Hawkins lived in a remote part of NSW. The Panel noted that although the Sapphire Coast physiotherapy notes do not state where she attended for treatment, that business has clinics in towns that are more than one hour's drive from her home near Bombala over low grade country roads.
6. It was also during the pandemic, which restricted travel and treatment. Distance and quarantine were relevant considerations when considering reasons why the claimant did not pursue more treatment.
7. Her neck complaints were documented in her first GP telehealth consultation on 3 April 2020, and again in osteopathic notes and GP reviews later in 2020.
8. On examination, she demonstrated asymmetrical cervical movement and spinal dysmetria, without evidence of radiculopathy or neurological deficit. Her condition is consistent with a DRE Cervicothoracic Category II or 5% WPI (AMA 4 Guides, p. 104, Table 15-5).

1. Soon after the accident, her osteopath notes describe interscapular discomfort. Her upper back symptoms were consistently documented by her treating osteopath. On clinical examination, there was tenderness over the vertebral border of the left scapula, but no associated muscle guarding, spasm, asymmetry of movement, spinal dysmetria, or radicular features. Her condition is consistent with DRE Thoracolumbar Category I or 0% WPI (AMA 4 Guides, Table 15-3, p. 102 and Table 15-4, p. 104).

1. Her lower back pain appears in later GP and osteopath records in 2020 but was not a focus in early medical consultations. Bombala Hospital records in 2023 noted low back pain, though no new injury was reported.
2. The Panel noted that the accident occurred in unprecedented times and she suffered physical and psychological trauma, where she was subjected to more intense isolation than usual in her remote part of NSW. Medical services were not readily available to her.
3. Although contemporaneous objective findings were limited, the Panel is satisfied that the claimant's lower back condition was caused by the accident. This conclusion is supported by the early reference to back pain in the APIB, the mechanism of injury, and her consistent complaints over time, despite limited early documentation and the existence of social media footage.
4. However, the Medical Assessors found no clinical signs on examination to support a permanent impairment rating under the guidelines, and thus the lumbar spine is assessed as DRE Category I or 0% WPI (AMA4, Table 15-3, p. 102). .

1. Ms Hawkins believes her shoulder pain developed within a week of the accident. Although no direct impact was recorded, the accident mechanics do not exclude the possibility of shoulder involvement. Generalised shoulder pain was reported in April 2020.
2. Dr Curtis later noted reduced capacity for overhead tasks. Although she continued to report bilateral shoulder complaints, the distribution of her symptoms, variability of range of motion over time and the absence of consistent structural findings led the Panel to conclude that the shoulder complaints are largely cervical in origin (Nguyen principle).
3. Given that the limitations appear to vary over time depending on symptom severity, the Medical Assessors decided that active range of motion was not a valid or reliable method of assessing permanent impairment (MAA Guidelines, paragraph 6.41, p 89) and applied an analogous condition in accordance with the Guidelines, paragraph 6.24, p. 87.
4. The condition chosen was mild joint crepitation of the acromioclavicular (AC) joint. This was chosen as the most appropriate analogy because this type of condition can cause symptoms and findings - namely pain on attempted shoulder elevation - in the shoulder girdle area, which is akin to the clinical presentation observed today.
5. According to the AMA 4 Guides Table 19 (p. 59), the AC joint is assigned 10% upper extremity impairment, which is multiplied by 15% for mild crepitation (AMA 4 Guides Table 18, p. 58), yielding 1.5% upper extremity impairment, which converts to 2% WPI for each shoulder.

Cervical spine: Chronic neck pain with asymmetrical motion and spinal dysmetria consistent with DRE Category II, assessed at 5% WPI.

Lumbar spine: Non-specific lower back pain without objective findings or impairment, assessed at 0% WPI.

Left shoulder: Variable functional symptoms with pain referred from the cervical spine, assessed analogously as mild AC joint crepitation, 2% WPI.

Right shoulder: Mild compensatory overuse symptoms with no structural deficit, assessed analogously, 2% WPI.

Thoracic spine: Localised tenderness without functional or structural deficit, assessed as DRE Category I, 0% WPI.

1. The issues of consistency of shoulder movements noted between examiners has been addressed above. Specifically, she stated that her range of movement varies over time.
2. The Panel considered whether the claimant's educational history, the trip to Sydney for the examination and the possible impact of her psychological condition could have affected her presentation. These aspects were not to the extent that the opinions formed are significantly affected.

1. The determination as to permanent impairment is made in accordance with the AMA 4 Guides and the Guidelines version 10. Permanent impairment is defined in the AMA 4 Guides (p 315) as follows:

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

1. It is now over five years since the accident. The claimant's injuries are stable so her permanent impairment is considered to be unlikely to change substantially by more than 3% in the next year with or without medical treatment.

1. The following injuries WERE caused by the accident:
   • neck - DRE Cervicothoracic Category II;
   • lumbar spine - DRE Cervicothoracic Category I;
   • right shoulder - referred from cervical spine;
   • left shoulder - referred from cervical spine, and
   • thoracic spine - DRE Cervicothoracic Category I.

1. All of the calculated impairment is the outcome of the accident and there is no

1. The Panel adopted the Medical Assessors' examination and permanent impairment assessment.
2. The Panel considered that the mechanism of the accident was sufficient to cause all of the referred injuries.
3. The claimant's complaints were contemporaneous enough to satisfy the Panel that the accident caused the referred injuries.
4. In respect to the insurer's submissions on excluding the right shoulder, the Panel considered that the examination findings, the persistence of the claimant's cervical condition and the frequent references to the right shoulder made it probable that the accident caused referred restrictions in both shoulders.
5. Further, the Panel considered that it was keeping with the object of the MAI Act, especially s1.3 (2)(g) encourage the early resolution of motor accident claims and the quick, cost effective and just resolution of disputes to deal with the right shoulder in this review.

1. The Panel found the permanent impairment arising from injuries caused by this accident is different to that found in Medical Assessor Wijetunga's assessment certificate dated

13 June 2024. 2. Accordingly, the Review Panel revokes that certificate and issues a new permanent impairment certificate. 3. The Review Panel found that the motor accident caused the following injuries and assessed them as giving rise to 9% permanent impairment: * neck - DRE Cervicothoracic Category II; * lumbar spine - DRE Cervicothoracic Category I; * right shoulder - referred from cervical spine; * left shoulder - referred from cervical spine, and * thoracic spine - DRE Cervicothoracic Category I. 4. The accident caused injuries with a permanent impairment not greater than 10%.

[1] Nguyen v The Motor Accidents Authority of NSW & Zurich Australian Insurance Ltd [2011] NSWSC 351.