DETERMINATION OF REVIEW PANEL	
	
CITATION:	Vassallo v AAI Limited t/as AAMI [2024] NSWPICMP 13	
		
CLAIMANT:	Lee Vassallo 	
		
INSURER:	AAI Limited trading as AAMI	
		
REVIEW Panel	 	
		
MEMBER:	Ray Plibersek	
		
MEDICAL ASSESSOR:	Ian Cameron	
		
MEDICAL ASSESSOR:	Peter Yu	
		
DATE OF DECISION:	9 January 2024	
		
CATCHWORDS:	MOTOR ACCIDENTS – Claimant was a driver of a car hit from behind in a roundabout; injuries reported include neck, thoracic spine, and both shoulders; Review Panel found the injuries to the neck and thoracic spine were soft tissue injuries which had resolved by about 12 months after the motor accident; also about 12 months after the motor accident the claimant reported injuring his neck, back and shoulders at a workplace heavy lifting accident; at the Panel’s re-examination the claimant demonstrated a full range of motion to both shoulders; Panel found that none of the claimant’s ongoing complaints or symptoms to both shoulders were caused by or contributed to by the motor accident; Held – original medical certificate which found 7% whole person impairment revoked.

DETERMINATIONS MADE:  	CERTIFICATE OF DETERMINATION
1.	The Review Panel revokes the certificate of Medical Assessor David McGrath dated 
24 April 2023 and issues a replacement certificate determining that:
(a)	The following injuries were caused by the motor accident give rise to a permanent impairment of 0% and is not greater than 10%:
• 	cervical spine – soft tissue injury, and
• 	thoracic spine – soft tissue injury.
(b)	The following injuries were not caused by the motor accident: 
•	left shoulder – soft tissue injury, and
•	right shoulder – soft tissue injury.

	

STATEMENT OF REASONS
introduction
1.	On 14 November 2017, Lee Vassallo (the claimant) was the driver of a car involved in a collision at a roundabout at Blacktown Road and Ellam Drive, Prospect. His car was hit from behind and pushed into another car. His car became undrivable. The car was towed away from the scene of the accident. The Fire Brigade attended the scene of the accident but no police or ambulance.
2.	AAI Limited trading as AAMI (the insurer) is the relevant insurer with liability to pay any damages to Mr Vassallo under the Motor Accident Compensation Act, 1999 (MAC Act). 
3.	The claimant sought a medical assessment of his injuries. Medical Assessor David McGrath dated issued a certificate dated 24 April 2023. He found that, of the injuries referred to him for assessment, there was a 7 % degree of permanent impairment.
4.	On 1 June 2023 the claimant’s solicitors filed an application with the Personal Injury Commission (the Commission) seeking a Panel review of the certificate of Medical Assessor McGrath. 
1.	ASSESSMENT UNDER REVIEW
5.	The dispute was initially referred to Medical Assessor McGrath who assessed Mr Vassallo and issued a certificate dated 24 April 2023. 
6.	The injuries referred for assessment included: cervical spine, thoracic spine, left and right shoulders.
7.	Medical Assessor McGrath’s diagnosis was that there is clinical support for cervicothoracic spinal dysfunction with secondary disturbance of shoulder girdle. Given the current presentation and examination of Mr Vassallo he found it most likely that he damaged a joint in the vicinity of T8-T10 of the thoracic spine. He has continuing symptoms and signs from this region. There were some secondary effects in the neck and shoulder girdle. He found that Mr Vassallo sustained the following injuries: cervical spine – soft tissue injury; thoracic spine – soft tissue injury; left shoulder – soft tissue injury and right shoulder – soft tissue injury. 
8.	Medical Assessor McGrath concluded that Mr Vassallo’s injuries resulted in a 7 % degree of permanent impairment.

9.	The present application is a review of a medical assessment made under s 63 of the
MAC Act. 
10.	Mr Vassallo’s claim and his entitlements to compensation are governed by the provisions of the MAC Act. Under the MAC Act, damages for non-economic loss can only be awarded where the permanent impairment is assessed to be greater than 10% and is the result of an injury caused by a motor accident. The assessment of the degree of permanent impairment of an injured person is to be made in accordance with the Guidelines referred to below.
11.	Damages for non-economic loss are provided for in Part 5.3 of the MAC Act. For example, non-economic loss damages are limited to a maximum amount in accordance with s 134 and entitlement to those damages is restricted by s 131 to persons who have a greater than 10% whole person impairment (WPI) as a result of the injuries sustained in the accident.
2.	Permanent impairment assessment
12.	Permanent impairment is to be assessed in accordance with the Motor Accident Permanent Impairment Guidelines (the Guidelines) which are largely based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA4 Guides). These Guidelines apply to motor accidents occurring between 5 October 1999 and 30 November 2017 (inclusive), and are the Motor Accidents Medical Guidelines issued under s 44(1)(c) of the MAC Act. These Guidelines are definitive with regard to the matters they address. Where they are silent on an issue, the AMA4 Guides are to be followed.
13.	Due to the nature of the injuries sustained by the claimant, the chapter 3 of the AMA4 Guides is relevant when assessing his musculoskeletal system.
3.	Dispute resolution
14.	If there is a dispute about the degree of the claimant’s permanent impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination.
15.	Part 3.4 of the MAC Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment and the review of medical assessments by this Panel.

4.	Review
16.	An application for review of the medical assessment of Medical Assessor McGrath was lodged by the claimant’s solicitors. 
17.	On 18 July 2023, the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application referred the medical assessment to the Review Panel (the Panel).
18.	The Commission commenced operation on 1 March 2021 and the Claims Assessment and Resolution Service was abolished by cl 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020 (the PIC Act).
19.	Under cl 14A(1)(a)(vii) Schedule 1 of the PIC Act pre-establishment proceedings include proceedings that before the establishment of the Commission were required or permitted to be dealt with by a review panel for a medical assessment constituted under the MAC Act. 	
20.	The review is by way of a new assessment of all matters with which the medical assessment is concerned.
21.	Clearly in matters involving assessment of permanent impairment there are strong arguments for a review panel conducting a re-examination. The Panel decided it appropriate for the assessment to review all matters with which the assessment of Medical Assessor McGrath was concerned.
22.	The Panel issued a Direction to the parties dated 27 July 2023 requiring each party to file an updated or additional indexed and paginated bundle of documents and advising the parties that the Panel had decided to re-examine the claimant. In response to this Direction the solicitor for the insurer and claimant both filed a bundle of documents. The claimant attended his re-examination on 3 October 2023. 
CAUSATION OF INJURY 
23.	Both the claimant’s and insurer’s solicitors submissions, which are referred to below, raise a number of issues including: aetiology of injury, causation of injury and a misplaced focus on an overreliance on contemporaneous notes made by treating doctors. In view of this the Panel sets out the following comments about the issues raised by the parties.
24.	First, regarding the issue of inconsistency, clause 1.41 the Guidelines provides that where there is an inconsistency between the Medical Assessor’s clinical findings and the information obtained through medical records and observations those inconsistencies must be brought to the injured person’s attention. The injured person must have an opportunity to confirm the history and/or respond to the inconsistent observations to ensure accuracy and procedural fairness.
25.	Causation of injury is addressed in the Guidelines:
5.	“1.5	An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) 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 AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues. 
6.	1.6	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: 
7.	1.	 The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination. 
8.	2.	The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’ 
9.	This, therefore, involves a medical decision and a non-medical informed judgement.
10.	1.7	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.”
26.	In Briggs v IAG Limited trading as NRMA Insurance his Honour Justice Wright stated at [35]:
11.	“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of injury
12.	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 AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
13.	6.6	Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows: 
14.	'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: 
15.	1.	The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination. 
16.	2.	The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
17.	This, therefore, involves a medical decision and a non-medical informed judgement. 
18.	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.”
27.	Wright J then described the panel’s role in a medical review was to:
“… consider whether the motor accident did cause or contribute to [the claimant’s] condition. This required, not a consideration of material derived as a result of an internet search …. but rather a consideration of the material referred to in cl 5.6 of the Guidelines, namely all the evidence available to the panel including all relevant findings derived from:
(1) 	a comprehensive, accurate history, including pre-accident history and pre-existing conditions;
(2) 	a review of all relevant records available at the assessment;
(3) 	a comprehensive description of the injured person’s current symptoms;
(4) 	a careful and thorough physical examination; and
(5) 	diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.” 
28.	Regarding the issue of the existence or otherwise of contemporaneous evidence of complaint (which has been raised by the claimant’s solicitors in its submissions) the Panel has had regard to the following legal authority.
29.	In Norrington v QBE Insurance (Australia) Ltd Brereton J addressed the presence or absence of a contemporaneous record of complaint in the determination of causation stating at [31]: 
19.	“In the context of medical assessment under MACA, there is now a substantial body of authority that a panel which decides the question of causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury fails properly to address the questions posed by s 58(1), and that this is jurisdictional error.” 
30.	Brereton J referred to the decision of Campbell J in Owen v Motor Accidents Authority (NSW) where it was noted that the failure of a treatment provider to make a record of complaint should not be treated as decisive where “busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury: Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]).”
31.	In Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance Justice Walton set aside the decision of a medical review panel. In considering the question of causation in relation to an amputated toe Justice Walton stated by focusing on whether there was a contemporaneous record of complaint in the clinical notes the actual question the review panel was required to consider was overlooked, in that case, did the motor vehicle accident materially contribute to the right second toe amputation. 
32.	The Panel has had regard to the above authorities which emphasise that a failure by a treating doctor to make a record of a complaint of injury or symptoms by claimant should not be treated as decisive or as proof that injury did not occur or that symptoms did not exist.
33.	Finally there is the issue of which party bears the “onus of proof” where causation is in issue. In Insurance Australia Limited trading as NRMA Insurance v Trkulja Chen J held that the review panel correctly identified the appropriate legal principles in connection with causation but then misdirected itself and reversed the onus of proof. His Honour held that the review panel misstated the legal onus: “… the onus is upon the first defendant [claimant] to satisfy the review panel that causation is established, not upon the insurer.” Chen J also noted that the review panel did not refer “…to s 5E of the Civil Liability Act 2002 (NSW) (‘CLA’) which identifies where the onus of proof lies: s 3(2)(a) of the CLA; Raina v CIC Allianz Insurance Limited (2021) 95 MVR 73; [2021] NSWSC 13 at [65] (‘Raina’).”
34.	The Panel notes that s 5E of the Civil Liability Act 2002 provides that in proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation. 
EVIDENCE BEFORE THE REVIEW PANEL
20.	Police Fire Brigade and ambulance reports
35.	There is a report of the fire brigade attending the scene of the accident. The insurer notes that there are no attendance records for ambulance or hospital only general practitioner (GP) treatment records. 

Treating medical evidence
36.	The Panel has reviewed all the pre and post-accident treating medical records produced by both the claimant and the insurer.
Pre-accident treating records 
37.	Comprehensive and complete medical records are available for the claimant’s medical history prior to motor vehicle accident. 
38.	Prior to the subject motor accident the claimant has a history of chronic neck and lower back pain as documented by the insurer solicitors. In a bundle of additional documents that insurer’s solicitors have prepared three summaries or chronologies of evidence. These documents are headed: chronology of pre-accident medical conditions; MVA of workplace injury 16 October 2018; and chronology of workplace accidents.
39.	The relevance of these chronologies is that they show that the claimant has a history of neck and lower back pain as documented by the insurer solicitors. For example the notes from Dr David Gibson (the claimant’s treating GP since 2012). On 6 August 2016 Dr Gibson writes in his clinical notes that the claimant has "episodic neck pain". On 11 February 2017 Dr Gibson notes “low back pain – muscle strain – see how it goes."
21.	Post-accident treating records 
40.	On the day after the accident the claimant was examined by one of his treating GPs Dr Natasha Greer. On 15 November 2017 Dr Greer noted that the claimant had a prior history of chronic occupational neck pain. Dr Greer also wrote that the claimant had pain across his upper and lower neck. On 15 November 2017 Dr Greer also noted that the claimant had nil radicular symptoms or neuro symptoms. She also noted the claimant had degenerative changes.
41.	On 22 November 2017 Dr Greer noted that the claimant had good range of movement in all directions with nil radicular symptoms. His neck improved left-sided pain resolved.
42.	On 28 January 2018 Dr Greer wrote about the claimant: “Continuing neck pain. Reasonable ROM, pain on flexion, right sided rotation, left sided lateral extension”. “Whiplash”. “Management … continue daily life and regular neck movements, avoid only those movements at work that are significantly exacerbating symptoms i.e. work involving prolonged looking down, twisting”.
43.	Dr David Gibson has been the claimant’s treating GP since 2012. The claimant’s solicitors have submitted over 200 pages of Dr David Gibson’s reports, clinical notes, chronologies and certificates of capacity. 
44.	One of the chronologies prepared by the insurer’s solicitors shows that between about March 2018 and May 2018 the claimant told his treating physiotherapist and GP that he had substantially recovered from his injuries and had returned to full time work. The following records are extracted from the insurer’s chronology:
22.	On 8 March 2018: 
23.	“Mr Vassallo reported his neck and lower back pain are much better with treatment”. “He has regained his ROM. I am happy to discharge him from physiotherapy with home exercise” “He is able to work without significant discomfort”. 
24.	Clinical records from Fairfield Heights Physiotherapy & Sports Injury Centre. 
25.	10 March 2018” 
26.	“Neck much better.” “Return to normal duties. RTA full duties”. 
27.	Transcribed clinical notes of Dr David Gibson. 
28.	12 March 2018: 
29.	“Whiplash type injury to neck”; physiotherapy required; “Is fit for pre-injury work”; “During time of physio I have been working my full-time job”. 
30.	Certificate of capacity/certificate of fitness 7 April 2018: 
31.	“Neck good”. 
32.	Transcribed clinical notes of Dr David Gibson.
33.	5 May 2018: 
34.	“Left neck and left arm pain, with arm And shoulder now settled”. 
35.	Transcribed clinical notes of Dr David Gibson.
45.	The claimant then suffered a workplace injury whilst lifting a heavy metal bar on 16 October 2018. His treating physiotherapist made the following notation on 17 October 2018: 
“Referred for neck and lower back pain from workplace injury on 16 October 2018 “…as tipping over and lowering down a 10 kg metal bar on a bench at work…”.
“Mr. Vassallo stated that he has had neck pain from a motor vehicle accident in 2017, which had been fully recovered with a course of physiotherapy”.
46.	In a report dated 1 July 2021 Dr Gibson wrote that after his motor vehicle accident the claimant did not seek hospital treatment but complained of pain in his neck and shoulders. Dr Gibson wrote that imaging of the claimant's neck has shown degenerative changes. The claimant continues to complain of pain in his neck and shoulders, more so on the left. Examination reveals tenderness in his neck and shoulders with limited movement of the neck in all directions. Dr Gibson's diagnosis is that the claimant has a muscle/tissue strain to the neck and shoulders.
47.	In a report dated 28 April 2020 Dr Y Kai Lee, orthopaedic surgeon,wrote the claimant reported that the morning after his motor vehicle accident he experienced pain in his neck and shoulders and down into his spine. The claimant reported injuring his back again while working when he lifted a large bar of aluminium which caused neck pain down the left side. Dr Lee referred to an X-ray which showed narrowing of the C5/C6 disc especially on the right side. There was also some anterior osteophyte in the lower thoracic spine. An MRI showed large disc/osteophyte complex at the C5/C6 level. On examination Dr Lee found tenderness around the C5/C6 level with restriction rotating to the left there was tenderness at the suprascapular region of both shoulders works on the left side. Only mild limitation of movement in the shoulders.
48.	Dr Natasha Greer was another of the claimant’s treating GP’s. 
49.	In a report addressed to the insurer and dated 17 January 2018 Dr Greer noted that the claimant had generalised over the neck and mild restriction will neck movements with nil radiculopathy reported. Dr Greer’s diagnosis was that the claimant had a whiplash injury.
50.	The claimant attended physiotherapy in October and November 2018 with Energize Physiotherapy. On 17 October 2018 a record from a physiotherapist Erika Watanabe recorded that the claimant said he felt sharp strong pain at the left neck and left back as tipping over and lowering down a 10kg metal bar on a bench at work on 16 October 2018. He immediately reported the incident and saw Dr Danny Tang who had referred him for physiotherapy treatment for his neck and back pain. Mr Vassallo stated that he has had neck pain from a motor vehicle accident in 2017, which had been fully recovered with a course of physiotherapy.
51.	The Energize Physiotherapy records noted the claimant complaining of constant pain and neck and shoulder movement restrictions.
52.	In an email dated 1 November 2018 Dr Tang wrote to the workers compensation insurer and advised that Dr Tang saw the claimant on 31 October 2018. The claimant told Dr Tang that he was improved by up to 90% and as a result, Dr Tang wrote that he would trial him on pre-injury duties.
36.	Medico-legal reports and other reports
53.	There are four reports from a surgeon Dr P Endrey-Walder.
54.	In a report dated 27 September 2019 Dr Endrey-Walder reported that in 1994 the claimant suffered an injury to his back and has had low-grade symptoms ever since but has still been able to work.
55.	Dr Endrey-Walder’s opinion is that the claimant suffered soft tissue injury to the cervical spine possibly suffering mid-left cervical facet joint inflammation in the subject motor accident. He also suffered significant aggravation to chronic arthritic condition in his thoracic spine where he had symptoms for more than 20 years. 
56.	Dr Endrey-Walder found an impairment of DRE Category II or 5% WPI in the claimant’s cervical spine and DRE Category II or 5% WPI in his thoracic spine giving a total of 10% WPI.
57.	In a report dated 17 June 2021 Dr Endrey-Walder noted that the claimant has remained with significant ongoing neck pain, pain in the mid thoracic back and more lately a degree of functional deficit at his left shoulder secondary to the referred pain from his neck.
58.	In another but separate report dated 17 June 2021 Dr Endrey-Walder confirmed his earlier finding that the claimant had an impairment of DRE Category II or 5% WPI in the claimant’s cervical spine and DRE Category II or 5% WPI in his thoracic spine giving a total of 10% WPI. He also found an additional impairment in the left shoulder of 6% right UEI which is equivalent to 4% WPI. This gives a combined total of 14% WPI.
59.	In a final report dated 8 November 2021 Dr Endrey-Walder wrote that the claimant is retiring given the physically demanding nature of his work. He also noted that in addition to the cervical and thoracic back pain which the claimant reported in detail in September 2019, that the claimant had developed referred pain to his left shoulder. Dr Endrey-Walder believes that it may well be the left shoulder pain with an end to his employment in the physical sense.
60.	On 20 October 2020, Dr Mohammed Assem noted that the claimant informed Dr Assem that he has had a long history of low back pain. The claimant was diagnosed with degenerative changes in 1994. He presented with low back complaints on 11 February 2017.
61.	Dr Assem wrote that the claimant’s condition is consistent with injuries he sustained in the motor vehicle accident. His previous complaints involving his lower back were not relevant to this matter.
62.	Dr Assem’s assessment of the claimant’s WPI is that the claimant continues to experience neck pain and stiffness with asymmetry of movement, given a DRE Cervical Category II or 5% WPI (AMA4 Guides, 3/104). He has a secondary limitation in shoulder motion. According to the range observed at the time of my assessment, he has 3% right upper extremity impairment (AMA4 Guides, Figure 38, 3/43; Figure 41, 3/44; Figure 44, 3/45) or 2% WPI (AMA4 Guides, Table 4, 3/20) and 3% left upper extremity impairment or 2% WPI. He continues to have pain in his upper back. However, there is no muscle guarding, spasm, asymmetry of movement or spinal dysmetria, giving a DRE Thoracolumbar Category I or 0% WPI (AMA4 Guides, Table 74, p 111).
63.	Dr Assem’s conclusion was that the claimant had a combined WPI of 9%.
64.	In another report dated 25 October 2021, Dr Assem wrote that around March 2018, the claimant sustained an injury to his neck and shoulder when lifting a heavy aluminium bar that was approximately six metres long. 
65.	The claimant told Dr Assem that he believes that his condition has continued to deteriorate. He says that he experiences constant neck pain associated with cervicogenic headaches. The pain radiates across both shoulders but there were no radicular symptoms in his upper extremities.
66.	Dr Assem’s diagnosis is that regarding the claimant’s cervical spine there is a soft tissue injury causing neck pain and stiffness with asymmetry of cervical movement. Regarding the thoracic spine there is a soft tissue injury causing upper back pain and stiffness or asymmetry of movement and a secondary restriction in shoulder movement.
67.	Dr Assem’s made a fresh assessment of the claimant’s WPI. He found a 5% WPI for each of the cervical spine and thoracic spine. He also found a 5% right upper extremity impairment (AMA4 Guides, Figure 38, 3/43; Figure 41, 3/44; Figure 44, 3/45) or 3% WPI (AMA4 Guides, Table 4, 3/20). There is a similar restriction in left shoulder motion, giving 3% WPI.
68.	Dr Assem’s conclusion was that the claimant now had a combined WPI of 16 %.
69.	In a further report dated 14 April 2022, Dr Assem wrote that the claimant has advanced degenerative in the cervical spine causing neck pain and stiffness with asymmetry of cervical movement. In addition, he experiences upper back pain that is limiting thoracolumbar extension. Unfortunately, his condition will progressively worsen with time and limit his ability to continue working in a regular and reliable manner over the next two or three years.
37.	REVIEW OF THE RADIOLOGY
70.	The Panel has summarised below some of the CT scans, MRI reports and other radiology specifically referred to or reproduced by the parties in their bundles of documents.
71.	There is an X-ray Cervical and Thoracic Spine, 15 November 2017. The report was prepared by Dr Vincent Caristo. The conclusion is: 
“The cervical vertebral column demonstrates normal alignment. The prevertebral soft tissues are normal in thickness. The cortical pattern of the spinous processes appears preserved. Mild degenerative endplate and facet joint changes are noted throughout.
The cervico-thoracic junction is normal.
If there is concern for an occult fracture or ligamentous injury, a Medicare funded MRI of the cervical spine could be performed for better assessment.
The thoracic vertebral column demonstrates normal alignment and vertebral body height is preserved. Degenerative endplate changes of a mild degree are present. The posterior ribs and visualised lung fields are clear.”
72.	There is an MRI cervical spine, 18 January 2018. The report was prepared by Dr Pascal Bou-Haidar. The conclusion is:  
“Multilevel degenerative spondylosis, greatest at C5/6, where there is high grade right foraminal stenosis from uncovertebral hypertrophy and facet arthrosis indenting the right C6 nerve and with sub endplate degenerative marrow oedema.
High trade left foraminal stenosis at C3/4 from similar factors though with advanced left facet arthrosis indenting the left C4 nerve.
Mild central canal stenosis at C5/6. No focal disc protrusion. Normal appearance of the cervical cord. No subluxation or evidence for a recent fracture.”
38.	SUBMISSIONS
39.	Claimant’s submissions
73.	The claimant’s solicitors provided written submissions dated 31 May 2023.
74.	In the submissions the claimant submits that Medical Assessor McGrath decision was incorrect for the four following reasons: inadequacy of reasons, failure to adequately consider the relevant material or misplaced focus on contemporaneous records, and failure to consider assessment in line with the Motor Accident Guidelines.
75.	The submissions argue that Medical Assessor McGrath failed to take into account a number of independent medical reports, clinical notes and radiological evidence. Medical Assessor McGrath failed to assess or investigate or put questions to the claimant regarding the issue of the aggravation/deterioration/exacerbation to the claimant's cervical spine injuries caused by the accident.
76.	The claimant submits that Medical Assessor McGrath did not provide any reasons for his findings about the claimant's cervical spine injury. The submissions note that the claimant's cervical spine injury and symptoms were well documented in the reports of Dr Endry-Walder and Dr Assem also the MRI of the cervical spine dated 18 January 2018. 
77.	Medical Assessor McGrath failed to consider all the information before him, failed to put any inconsistencies to the claimant during the examination and also failed to provide an adequate analysis using his clinical skill and judgement to resolve those inconsistencies.
78.	Regarding the thoracic spine the claimant argues that Medical Assessor McGrath failed to test for any neurological impairment or radicular symptoms in the claimant's lower extremities when assessing his thoracolumbar injuries as is required by AMA 4 Guidelines. 
40.	Insurer’s submissions
79.	The insurer has provided two written submissions dated 22 October 2022 and 21 June 2023. 
80.	In the submissions dated 22 October 2022 the insurer’s solicitors submitted that the claimant’s history of physical complaints about his neck and back persisted for many years before the accident and his medical records reveal that these complaints were not resolved at the time of the accident.
81.	The insurer notes that the claimant made a workers compensation claim for injuries he sustained while carrying a 20kg aluminium bar at work in March 2019.
82.	The insurers submits that the claimant’s workplace injury records demonstrate that:
(a) 	after the motor vehicle accident he was able to manually handle 20kg;
(b) 	he told treaters that his motor vehicle accident related symptoms had resolved;
(c) 	the work injury resulted in cessation of the duties that he was able to do after the motor vehicle accident, and
(d) 	following resolution of workplace injury restrictions, he had full work capacity (as was the case between the motor vehicle accident and the work injury).
83.	The insurer submits that the evidence demonstrates that the claimant is not a reliable historian. His presentation in past physical examinations is inconsistent with continuing heavy manual work. The claimant marked “No” regarding pre-existing injuries and illnesses in the Personal Injury Claim Form. The claimant’s response was clearly not truthful. The claimant provided incomplete and inaccurate histories to Dr Assem, Dr Endrey-Walder, and Ms Judith Davidson (occupational therapist). The records from the workers compensation claim reveal that the claimant tells doctors in the context of that claim that it was the cause of all of his symptoms, and that his motor vehicle accident related symptoms had resolved.
84.	The insurer submits that the chronology of the claimant’s pre-accident medical conditions details pre-existing neck complaints as recent as five months prior to the subject accident, and GP Dr Greer on 15 November 2017 recorded pre-existing neck pain as “Chronic”. The treating evidence describe in the insurer’s chronology from the motor vehicle accident to workplace injury on 16 October 2018’ demonstrates that claimant’s neck symptoms had largely resolved prior to the workplace accident on 16 October 2018. Before the motor vehicle accident the claimant had a full range of movement (ROM) and no neurological symptoms. The treating evidence shows that the workplace accident in October 2018 caused the claimant’s subsequent ongoing neck pain and restrictions.
85.	Regarding the thoracic spine the insurer submits that the claimant has a history of thoracic spine symptoms for more than 20 years before the motor vehicle accident. After 15 November 2017 there was a ‘gap’ in complaints of thoracic spine symptoms until 27 July 2019, which was over 20 months after the motor vehicle accident and after the work accident in October 2018.
86.	Regarding the left shoulder the insurer argues that the treating evidence demonstrates that the claimant did not sustain an acute injury to the left shoulder in the subject accident, but rather in the subsequent workplace accident in October 2018.
87.	Similarly with the right shoulder, the insurer argues that the treating evidence demonstrates that the claimant did not sustain an acute injury to the right shoulder in the subject accident, but rather the right shoulder complaints were related to other issues.
88.	The insurer’s concluding submissions are that evidence reveals that aetiology of injury and apportionment of impairment are very important elements of this assessment. It will be incumbent on a Medical Assessor to explain how these factors influence his/her diagnoses, causation and impairment conclusions.
89.	In its submissions dated 21 June 2023 the insurer ‘s solicitors replied directly to the claimants submissions.
90.	Regarding the alleged failure to adequately consider the relevant material or misplaced focus on contemporaneous records the insurer referred to the Supreme Court decision in Golijan v Motor Accident Authority of NSW [2012] NSWSC 1106 that the failure of a Medical Assessor to expressly refer to evidentiary material or accept a competing opinion over another does not naturally demonstrate failure to afford natural justice. The insurer contends that although Medical Assessor McGrath did not specifically refer to some medical reports and MRI scans it did not mean that he did not consider them and in any event he wasn’t required to refer to every piece of evidence that he considered.
91.	The insurer submits that Medical Assessor McGrath adequately considered the evidence related to the cervical spine injury. His determination suggests that the source of the claimant’s impairment primarily arises from his thoracic spine injury, based on the claimant’s symptoms and presentation on examination.
92.	The insurer notes that the claimant’s injury to the cervical spine was accepted by the Medical Assessor as being causally related to the subject accident. The assessment was conducted in accordance with the statutory guidelines, with the degree of impairment being appropriately assessed on the day of examination.
93.	Regarding the alleged failure to consider assessment in line with the Motor Accident Guidelines the insurer submits that the assessment is governed by the Motor Accident Permanent Impairment Guidelines. The insurer argues that the onus is on the claimant to provide relevant medical evidence to the Medical Assessor so that an accurate determination can be made, based on the Medical Assessor’s clinical expertise. The certificate issued by Medical Assessor McGrath clearly outlined his analysis and reasoning with respect to the cervical spine. The Medical Assessor was entitled to exercise his clinical judgment and conclude there was no impairment based on his examination and the available evidence. 
94.	The insurer argued that the Medical Assessor accepted that the claimant sustained a cervical spine injury as a result of the subject accident. There was no issue of causation or contribution, as no relevant pre-existing physical injuries identified. The examination was conducted in accordance with the PI Guidelines with impairment being determined as at the date of assessment. There was therefore no material error. 
95.	The insurer submits that lower extremity neurological deficits are of no relevance to the assessment of the thoracic spine. Thoracic (thoracolumbar) spine dermatomes extend to the upper limbs and abdomen. The Medical Assessor conducted a neurological examination of the upper limbs and reported that they were ‘normal’. The insurer submits that lower extremity neurological deficits are of no relevance to the thoracic spine. 
96.	In conclusion the insurer wrote that Medical Assessor McGrath had correctly and properly assessed impairment of the claimant’s physical injuries, applying his clinical expertise and discretion. 
MEDICAL EXAMINATION
97.	The claimant was medically examined at the Ultimo rooms by Medical Assessor Cameron on 3 October 2023. Mr Vassallo attended unaccompanied. 
History of injury
98.	On 14 November 2017 Mr Vassallo was the driver of a vehicle. He was in a roundabout. He was hit from behind and pushed into the vehicle in front. He said that he felt shocked and had neck and back pain. He exchanged details with the drivers of the other vehicles involved.
99.	Mr Vassallo said that he saw his GP, Dr Greer, the next day. Mr Vassallo said that he returned to work following normal duties about two days after the motor vehicle crash. He said that his symptoms gradually improved.
100.	There was an incident at work in October 2018 where he was lifting a heavy aluminium beam. He said he injured his shoulder at that time. Mr Vassallo agreed that his neck had recovered by that stage. When asked in more detail, Mr Vassallo said that he had some shoulder problems from the time of the accident but these increased substantially in the work injury.
Background
101.	Mr Vassallo is living at Fairfield with his wife. He has two adult children, one of whom lives at home.
102.	Mr Vassallo has been working as a process worker fabricating aluminium windows and doors for a considerable time.
103.	Mr Vassallo said he had a history of low back pain from about 1994. He said he had been diagnosed with degenerative disc disease. He said that this had caused symptoms for sometime but it gradually improved and was not interfering with his work. 
104.	Mr Vassallo smokes about 10 cigarettes per day.
Current status
105.	Mr Vassallo said that he was "sore". By this, he said that he had upper back pain, headache and intermittent neck pain.
106.	Mr Vassallo is working in his normal employment fulltime. He says that on occasions he has to lift aluminium beams weighing 20 to 30kg. 
107.	Mr Vassallo is driving. Current medications are Nurofen and Mersyndol if required. 
108.	 His GP is Dr Gibson.
Examination
109.	Mr Vassallo is right handed, 183cm in height and weighs 79kg. 
110.	Mr Vassallo was cooperative and provided a clear history. 
111.	At the cervical spine there was moderately and symmetrically reduced range of motion (to 70% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present. Nerve tension signs were negative.
112.	There was a full range of motion at both shoulders. There was pain at extremes of movement. 
113.	There was a full range of motion at other upper extremity joints. 
114.	There were no neurological abnormalities in the upper extremities. 
115.	Circumferences of the upper extremities were right 25cm and left 25cm. 
116.	At the thoracic spine there was moderately and symmetrically reduced range of motion (to 70% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present. 
117.	At the lumbar spine there was moderately and symmetrically reduced range of motion (to 70% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present. Nerve tension signs were negative.
118.	There was a full range of motion at both knees. There was no crepitus or instability. 
119.	There was a full range of motion at other lower extremity joints. 
120.	There were no neurological abnormalities in the lower extremities. 
121.	Circumferences of the lower extremities were right 38cm and left 38cm. 
122.	Mr Vassallo walked with a normal gait.
Imaging
123.	Imaging studies were available as follows:
•	MRI cervical spine 18 January 2018 showed degenerative changes.
•	X-ray of the cervical and thoracic spine 15 November 2017 showed degenerative changes.

Diagnosis and Prognosis
124.	 In the motor vehicle crash on 14 November 2017 Mr Vassallo sustained soft tissue injuries to his cervical and lumbar spine based on the available information. He did not sustain significant injuries to either shoulder. Shoulder symptoms developed in a work incident in October 2018. By that time, his cervical spine symptoms had settled.
Assessment
125.	There is a 0% WPI with reference to the thoracic spine and cervical spine. 
CONSISTENCY
126.	The Panel accepted the claimant’s account of how the motor vehicle accident occurred and how he received his reported injuries.
PANEL DELIBERATIONS 
Diagnosis and causation
Cervical spine injury
127.	The Panel notes that the pre-accident treating records from Dr Gibson and Dr Geer show that the claimant suffered from chronic neck pain and stiffness for about 25 years before the subject motor accident. The claimant himself also reported to Dr Endrey-Walder and Dr Assem and other treating doctors that he had an injury to his back and had low grade symptoms and degenerative changes since about 1994.
128.	An X-ray of the cervical and thoracic spine on 15 November 2017 and an MRI of the cervical spine on 18 January 2018 both showed degenerative changes.
129.	As a result of the accident in 2017 the claimant developed some symptoms of neck pain and stiffness but the reports of the symptoms were insufficient to attract a diagnosis of radiculopathy from any treating doctor or independent medical assessor. Clinical notes from Dr Greer and Dr Gibson confirm there was no evidence of radiculopathy in the claimant’s cervical spine.
130.	Relying on the criteria of radiculopathy listed in the Guidelines, there is no loss or asymmetry of reflexes, no positive nerve root tension signs, no muscle atrophy, no muscle weakness or reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution. This gives a DRE Cervicothoracic Category I or 0% WPI (AMA4 Guides, 3/104 and AMA4 Guides, Table 73, p 110).
131.	The chronologies prepared by the insurer’s solicitors shows that between about March 2018 and May 2018 the claimant told his treating physiotherapist and GP that he had substantially recovered from his injuries and had returned to full time work.
132.	After reviewing all of the evidence the Panel’s opinion is that Mr Vassallo sustained a soft tissue whiplash injury to cervical spine in the motor accident. This resolved about 12 months after the accident. The Panel notes that Mr Vassallo continued to complain of neck pain and stiffness and received occasional treatment from his treating GP. Given all the medical history, clinical presentation and the re-examination of the claimant by the Panel, the Panel’s opinion is that the ongoing cervical symptoms experienced by Mr Vassallo were related to his degenerative disease of his cervical spine and his work. The Panel’s opinion is that the ongoing symptoms he experienced were not related to the motor accident but were caused by degenerative spinal disease and later workplace injury.
133.	Considering the claimant’s history and complaints, it is possible there was soft tissue injury to cervical spine which resolved about 12 months after the motor accident. 
134.	Therefore, the Panel assessed the cervical spine injury sustained in the motor accident on 14 November 2017 as a soft tissue injury. 
Thoracic spine injury
135.	As referred to above the claimant has a well-documented history of stiffness, pain and discomfort in the thoracic spine. He also has a documented history of long standing degenerative spinal disease.
136.	By reference to the medical evidence, radiological evidence and medical reports summarised above, here is no evidence of radiculopathy in the claimant’s thoracic spine. 
137.	Relying on the criteria of radiculopathy listed in the Guidelines there is no loss or asymmetry of reflexes, no positive nerve root tension signs, no muscle atrophy, no muscle weakness or reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution. This gives a DRE Thoracolumbar Category I or 0% WPI (AMA4 Guides, Table 74, p 111).
138.	Considering the medical history and complaint, it is possible there was soft tissue injury to thoracic spine in November 2017 which resolved approximately 12 months after the motor accident. Clinically there is no evidence of nerve impingement, disc injuries or musculoskeletal injury.
139.	Therefore, the Panel assessed the thoracic spine injury as a soft tissue injury.
Left and right shoulder injury and arms 
140.	At the by re-examination by Medical Assessor Cameron on 3 October 2023 he found in the upper limbs and shoulders that there was a full range of motion at both shoulders. There was pain at extremes of movement. There was a full range of motion at other upper extremity joints. There were no neurological abnormalities in the upper extremities. 
141.	On 16 October 2018 the claimant reported injuring his neck, back and shoulders at work while lowering down a 10kg metal bar. He attended physiotherapy in October and November 2018 with Energize Physiotherapy. Mr Vassallo stated that he has had neck pain from a motor vehicle accident in 2017, which had been fully recovered with a course of physiotherapy.
142.	Considering the medical history and the evidence from before and after the accident outlined above, it is possible there was soft tissue injury to arms and shoulders at the time at the time of the motor vehicle accident. However, at the time of the motor accident and for some months after, there were no tears or significant abnormality demonstrated. Medical Assessor Cameron found a full range of motion at both shoulders. There was no injury or substantial complaint about either shoulder recorded after the accident until the workplace accident on 16 October 2018. Therefore, the Panel assessed if there had been any shoulder injury caused by the motor accident in November 2017 this was a soft tissue injury which had resolved within a few months after the accident. Then on 16 October 2018 the claimant reported injuring his neck, back and shoulders but this was a separate and later workplace accident. Any shoulder injury sustained on 16 October 2018 was not caused or aggravated by the motor accident on 14 November 2017.
CONCLUSION AND CERTIFICATION
143.	For the above reasons the Panel revokes the certificate issued by Medical Assessor McGrath. All of the claimant’s injuries to his spine in the motor accident 14 November 2017 were soft tissue injuries which had all resolved by about 12 months after the accident. None of his ongoing complaints or symptoms to both shoulders were caused by or contributed to by the motor accident on 14 November 2017. 
144.	The new certificate is attached at the commencement of these Reasons.