DETERMINATION OF REVIEW PANEL	
	
CITATION:	AAI Limited t/as AAMI v Ali [2022] NSWPICMP 377	
		
CLAIMANT:	Maibul Ali	
		
INSURER:	AAI Limited t/as AAMI	
		
REVIEW Panel	 	
		
PRINCIPAL MEMBER:	John Harris	
		
MEDICAL ASSESSOR:	Dr Geoffrey Stubbs	
		
MEDICAL ASSESSOR:	Dr Margaret Gibson	
		
DATE OF DECISION:	27 September 2022	
		
CATCHWORDS:	MOTOR ACCIDENTS – The claimant suffered injury in a motor accident on 24 August 2018 from a T-bone collision suffering a fractured sternum and other soft tissue injuries; the issue was the extent of permanent impairment and whether physiotherapy was reasonable and necessary; the claimant was reassessed; no issues of principle; findings made that initial shoulder symptoms were probably due to the fractured sternum and aggravation of cervical spine condition; the spine was assessed as Diagnosis Related Estimate (DRE) I; crepitus found in right knee which suffered injury due to impact on the dashboard; the claimant has an extensive pain condition over a number of years; the provision of physiotherapy according to the physiotherapy plan is not necessary as in light of the claimant’s presentation and past history no there benefit was expected; Held – claimant assessed below 10% threshold; physiotherapy held not to be necessary and would not assist recovery. 	
DETERMINATIONS MADE:  	The Panel confirms the certificate dated 27 February 2022 that the following injuries caused by the motor accident give rise to a whole person impairment NOT GREATER THAN 10%:
•	Cervical spine 
•	Lumbar spine   
•	right shoulder – Nguyen principle
•	left shoulder – Nguyen principle 
•	Gastrointestinal condition
•	Right and left knee

Review Panel Assessment of Recovery
Replacement Certificate issued under section 7.23(1) of the Motor Accident Injuries Act 2017

•	The Review Panel confirms the certificate dated 27 February 2022.

Review Panel Assessment of Treatment and Care and Replacement Certificate issued under section 7.23(1) of the Motor Accident Injuries Act 2017

•	The Review Panel confirms the certificate dated 27 February 2022.	

REASONS
BACKGROUND 
1.	Ms Maibul Ali (the claimant) suffered injury on 24 August 2018 when the insured vehicle turned right in front of the claimant’s vehicle resulting in a T-bone collision.
2.	AAI Limited (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay to Ms Ali any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act).
3.	The present disputes are whether Ms Ali’s “degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%”, whether the treatment and care is reasonable and necessary in the circumstances or relates to the motor accident for the purposes of s 3.24 of the MAI Act and whether, for the purposes of s 3.28 of the MAI Act, treatment and care will improve the recovery of an injured person. These constitute medical disputes within the meaning of the MAI Act. 
4.	Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (the Guidelines). 
5.	The Guidelines are issued pursuant to s 10.2 of the MAI Act. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.
6.	This is a review of a medical assessment pursuant to s 7.26 of the MAI Act.  The medical assessment the subject of this review was conducted by Medical Assessor Cameron and dated 27 February 2022. The Medical Assessor assessed the degree of permanent impairment at 2%.  The Medical Assessor also determined that eight sessions of physiotherapy related to the accident, was not reasonable and necessary and would not improve recovery. The details of that assessment are set out later in these Reasons.
THE REVIEW
7.	The application for referral of a medical assessment to a Review Panel (the Panel) was made by the claimant within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought. 
8.	The delegate of the President referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.
9.	Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, clause 14F(2) of the Personal Injury Act 2020 (the PIC Act), the Panel consists of two medical assessors and a member of the Motor Accidents Division of the Personal Injury Commission (the Commission).
10.	Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a merit reviewer or a medical assessor.
11.	Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.
12.	The review is by way of new assessment of all matters with which the medical assessment is concerned.
13.	The parties provided bundles of documents in accordance with the initial Direction. 
14.	A further direction requested the documents that formed the basis of Dr Berry’s second report on the gastrointestinal condition. We were subsequently advised that these documents were in the bundles produced by the parties.
ASSESSMENT UNDER REVIEW
15.	Medical Assessor Cameron provided a medical assessment dated 27 February 2022 determining that the permanent impairment of the injuries was not greater than 10%. The Medical Assessor found assessable impairment of the right knee (2%) and no assessable impairment of the left knee, cervical spine and lumbar spine. He also found that Ms Ali sustained a fracture sternum which had resolved.
16.	Medical Assessor Cameron found that there was no injury to the shoulders and no evidence of a specific gastrointestinal injury to the stomach.
17.	The Medical Assessor found the proposed treatment was caused by the motor accident but was not reasonable and necessary because of an absence of “benefit of provision of treatment”. He also found that the eight sessions of physiotherapy will not improve recovery because there had been previous multiple treatments without substantial benefits.
STATUTORY PROVISIONS
18.	Section 3.24 of the MAI Act relates to the provision of treatment and care. The section relevantly provides:
“(1)	An injured person is entitled to statutory benefits for the following expenses ("treatment and care expenses" ) incurred in connection with providing treatment and care for the injured person—
(a)	the reasonable cost of treatment and care,
….
(2)	No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.”
19.	Section 3.24 provides that the issues of “reasonable and necessary in the circumstances” and “whether any such treatment relates to the injury caused by the motor accident” are different concepts.
20.	Section 3.28 of the MAI Act provides that treatment and care ceases after 26 weeks where the person was mostly at fault or otherwise only received minor injuries. However, an exception to the cessation of payments is provided by s 3.28(3) which provides:
“(1) 	Despite subsection (1), statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned are payable in respect of minor injuries if the Motor Accident Guidelines authorise their payment. The payment for those expenses may be so authorised if the treatment or care will improve the recovery of the injured person, the insurer delayed approval for the treatment and care expenses or in other appropriate circumstances.”
21.	The relevant Motor Accident Guidelines 2017 (the Guidelines) giving effect to when payments may be authorised after the six- month period pursuant to s 3.28 of the MAI Act are contained in clause 5.16. Clause 5.16 of the Guidelines contains the reference to “recovery” in the context of treatment of care after a period of 26 weeks. Further defined expenses are recoverable after 26 weeks, even though the injuries are only minor injuries, if one of three conditions apply. One of those conditions is that the “treatment and care will improve the recovery off the injured person”. The clause provides:
“5.16 For a person whose only injuries are minor injuries, the payment of treatment and care expenses incurred more than 26 weeks after the motor accident is authorised if the treatment and care is: 
(a) medical treatment, including pharmaceuticals 
(b) dental treatment 
(c) rehabilitation 
(d) aids and appliances 
(e) education and vocational training 
(f) home and transport modifications 
(g) workplace and educational facility modifications 
and:
(h) the treatment and care will improve the recovery of the injured person, or 
(i) the insurer delayed approval for the treatment and care expenses, or 
(j) the treatment and care will improve the injured person’s capacity to return to work and/or usual activities.” 
22.	Clauses 4.76 - 4.77 of the Guidelines provides:
“4.76 People respond differently after a motor accident injury. The insurer must manage claims in a manner that is tailored to the claimant, providing support based on best practice and tailored to their individual circumstances and needs. 
4.77 The insurer should apply the principles of the nationally endorsed Clinical Framework for the Delivery of Health Services, which sets out five guiding principles for consideration by health professionals and insurers when reviewing treatment plans and requests for services:
(a)	measure and demonstrate the effectiveness of the treatment 
(b)	adopt a biopsychosocial approach – consider the whole person and their individual circumstances
(c)	empower the injured person to manage their recovery
(d)	implement goals focused on optimising function, participation and where applicable, return to work
(e)	base treatment on the best available research evidence.” 
MATERIAL BEFORE THE REVIEW PANEL
23.	The Panel requested and were provided with separate bundle of documents provided by the parties. 
Pre-existing records

24.	The pre-motor accident records of the general practitioner refer to recurrent neck and back pain.
Contemporaneous records
25.	The ambulance report notes:
“Pt denies any LOC or hitting her head. Self-extricated. Nil air bag deployment. Pt c/o generalised sternal chest pain which is worse on movement. States that where she hit the steering wheel. Nil obvious seat belt marks. Lung sounds clear. Speaking in full sentences. Abdo soft non tender. Pt complained of generalised non-specific bilateral arm pain but has full ROM and assist getting on/off stretcher. Equal limb strength. Secondary survey revealed nil obvious other injuries.”
26.	Ms Ali was admitted to Liverpool Hospital on 25 August 2018 for a displaced fracture of the sternum. The clinical notes refer to no head strike or loss of consciousness, no abnormality of the neck and no midline tenderness of the back. Elsewhere the notes refer to normal shoulder movements and bilateral knee pain with no back tenderness. There is the occasional reference to cervical spine pain within the notes.
27.	The claimant consulted her general practitioner on 1 September 2018 who reported a fractured sternum and head injury. On 6 September 2018 the general practitioner noted the fractured sternum, neck and back injury.
28.	A medical certificate dated 10 September 2018 but referring to an attendance on 1 September 2018, noted the injuries as sternum fracture, neck and lumbar strain on a stable spondylosis.
29.	Subsequent general practitioner notes focus on the neck, back, sternum and ribs. Reduced arm movement is noted by the general practitioner on 13 February 2019 and shoulder pain is reference in April 2019.
Physiotherapy
30.	A physiotherapist report on 12 September 2018 noted low back and neck pain and fractured sternum. Shoulder movement was reported as limited due to the fractured sternum.
31.	An Allied health recovery request dated 11 January 2020 noted pain in the neck, back, right knee and sternum.
Clinical records – Psychologist
32.	The initial clinical notes of the psychologist dated 9 September 2019 refer to fractures of the sternum and sixth rib, chronic headaches, neck, back and shoulder pain.
Radiology
33.	X-ray of both knees dated 27 August 2018 noted a clinical history of bilateral knee pain without swelling, left greater than right. No fracture of dislocation was shown on the x-ray.
34.	CT scan of the chest dated 24 August 2018 noted a clinical history of chest and sternal pain, low cervical spine and upper thoracic tenderness. Scan showed displaced fracture of sternal manubrium.
35.	The CT scan of the cervical spine dated 24 August 2018 noted tenderness over C6/7 and T1 with seatbelt mark over right clavicle and tender over the sternum. Degenerative changes were noted at C5/6 with right foraminal narrowing and nerve root impingement.
36.	CT scan of the brain dated 7 September 2018 showed no intracranial or skull injury with mild to moderate sinusitis.
37.	A bone scan dated 15 September 2018 showed traumatic fractures of the manubrio sternum and left sixth rib.
38.	The x-ray of the sternum dated 5 November 2018 showed a depressed fracture with no evidence of heeling. 
39.	Bone scan dated 29 March 2019 showed increased uptake in the manubrio-sternal junction which could be due to incomplete healing of a fracture or traumatic arthritis. No abnormality was shown in the cervical spine.
40.	MRI scan of the right knee dated 13 August 2019 showed horizontal tear of the medial meniscus and full-thickness chondral fissuring of the patellar apex.
41.	Bone scan dated 4 December 2019 showed increased uptake at the L4/5 facet joint and left facial bone.
42.	Histopathology report dated 6 July 2020 referred to reactive gastropathy, characterised by gastric foveolar hyperplasia and mild smooth muscle hyperplasia in the lamina propria with a diagnosis of antral biopsy-reactive gastropathy.
Specialist treating records
43.	Dr Kai Lee, orthopaedic surgeon, provided a report dated 2 October 2018 noting painful neck, back and shoulders. Tenderness was noted at the sternum and sixth rib. The cervical spine was described as “Ok” and movement “good”. Shoulder movement was full except there was mild limitation on the left side. Mild tenderness was noted in the back with mild limitation of movement. 
44.	Dr Lee described the neck, back and shoulder injuries as mild but still requiring attention.
45.	On 10 October 2019 Dr Lee noted pain in the sternum, shoulders and right knee. The doctor opined that there was an undisplaced medial meniscal injury and patella-femoral injury, but arthroscopy was unlikely to help.
Statement
46.	Ms Ali provided a statement dated 29 October 2020 who noted a past history of neck and back pain associated with her work which was not as severe “as it has been since the subject accident”.
47.	Ms Ali described the accident when she T-boned a vehicle that swung into her path causing her to be “flung forwards and backwards” to lose consciousness briefly. The right knee was hurt when it was banged “against the dashboard”.
48.	Ms Ali noted ongoing back, neck, chest/sternum and bilateral knee pain since the accident. She also stated that there is “referred pain in my arms and legs which I think is from my neck and back”. Later in the statement, Ms Ali described the neck pain as travelling “into both shoulders as well as my arms”.
49.	The claim form signed by Ms Ali on 30 August 2018 referred to the fractured sternum.
Other documents
50.	The injuries for assessment of permanent impairment were the cervical, thoracic and lumbar spines, right and left shoulders, right and left knees and gastrointestinal injury. Treatment disputes concerning eight sessions of physiotherapy were also referred.
51.	In a letter dated 19 June 2020 the claimant particularised her injuries as neck, right knee (meniscus tear and chondral fissuring), left wrist tenosynovitis, sternum fracture, psychological, secondary gastrointestinal symptoms and “whole body pain syndrome”.
52.	Extensive clinical notes relate to the parotidectomy of the neck and subsequent radiation treatment in late 2018 into 2019. In December 2018 Associate Professor Niles diagnosed an adenoid cystic carcinoma which was surgically removed.
Qualified opinions 
53.	Dr Evan Dryson, physician, was qualified by the claimant and provided a report dated 8 April 2020. The Doctor noted pain in the chest, neck radiating to both arms, left 6th rib, right knee and low back. He also noted reporting of “widespread body pain”.
54.	Dr Dryson provided an opinion on Ms Ali’s fitness for work and need for various treatment. In relation to permanent impairment, Dr Dryson assessed the cervical spine at 5% and the right knee at 4%. He opined that the shoulder impairments resulted from referred pain from the neck and provided significant assessments based on loss of range of movement. 
55.	Dr Richa Rastogi was qualified by the claimant and provided a report dated 22 June 2020. The report concentrated on psychological condition caused by the motor accident although it did note that Ms Ali was suffering from chronic pain.
56.	Dr Neil Berry, surgeon was qualified by the claimant and provided a report dated 16 November 2020. He noted that Ms Ali was “quite distressed” about her musculoskeletal problems but did not disclose digestive tract issues. After noting Dr Krishna’s report and gastroscopy dated 6 July 2020, Dr Berry opined that the anal gastritis is caused by medication intake and assessed this at 2%. 
57.	Dr Jonathan Herald, orthopaedic surgeon, was qualified by the claimant and provided a report dated 7 October 2020. The doctor assessed the cervical spine as DRE Category 2 and opined the claimant had developed “secondary impingement syndrome” and assessed the right shoulder at 6%. He otherwise allowed 2% for each knee due to patellofemoral pain and crepitus.
58.	Dr Andrew Keller, physician provided a report dated 23 July 2020. The doctor recorded a history of no prior treatment for the neck, back and knees.
59.	Dr Keller opined that it was not clear to him, from an examination of the hospital records, that there was any injury to the arms, legs, neck or back. The doctor noted inconsistent range of movement of the neck, restriction of movement of the right shoulder not explained by investigations, and full range of movement of both knees with crepitus.
60.	Dr Keller opined that the fractured sternum had healed and there were no other injuries caused by the motor accident. Any ongoing problems were due to pre-existing changes.
SUBMISSIONS
Claimant’s submissions dated 28 March 2022
61.	These submissions sought a review of the assessment provided by Medical Assessor Cameron. The claimant submitted that the gastrointestinal impairment arose from the use of pain medication which was not considered by the Medical Assessor.
Insurer’s submissions dated 26 November 2020
62.	These submissions are extremely lengthy, and the following is not intended as a summary. 
63.	The insurer submitted that:
(a) 	any physical injuries sustained in the subject accident, which is not conceded, have since resolved; 
(b) 	the cervical, lumbar and thoracic spine injuries alleged by the claimant are wholly unrelated to the subject accident, and are due to the claimant’s pre-existing and degenerative conditions;
 (c) 	the alleged gastrointestinal injury, namely reflux, is likely due to the subsequent chemotherapy and radiation treatment, rather than as a result of any medication taken in association with the injuries allegedly arising from the subject accident;
 (d) 	there is a lack of reliable objective evidence to support that any injuries were sustained in relation to both shoulders and knees as a result of the subject accident, and 
(e) 	the alleged psychological injury is questionable given the claimant’s post-accident activities, and issues of credibility.
64.	The insurer submitted that “over time, the claimant has alleged additional injuries including to the cervical and lumbar spine, right shoulder, left shoulder, right knee, left wrist, secondary gastrointestinal injuries, as well as psychological injuries.” The allegation of injury to the left knee and both shoulders was not included in the response to particulars dated 19 June 2020.
65.	Drs Herald, Dryson and Keller found no assessable impairment of the lumbar spine. Any current condition was therefore unrelated to the motor accident. The insurer noted the extensive treatment to the cervical and lumbar spine disclosed in the medical records. These conditions otherwise raise issues of pre-existing impairment.
66.	The initial ambulance and hospital records do not support injury other than to the sternum. Initial complaint to the general practitioner does not support other injuries particularly as the neck was reported as “not stiff”.
67.	Dr Lee reported on 2 October 2018 that the neck was okay, and movement was good. Complaints to the general practitioner after December 2018 refer to the back, neck and sternum without reference to the shoulders. A diagnosis of left rotator cuff tear was made nine months after the motor accident. Complaints of right knee problems were not made until one year after the motor accident.
68.	On 8 December 2018 the claimant underwent a left parietal superficial parotidectomy and left selective neck dissection. Radiation therapy commenced in January 2019 and chemotherapy in March 2019.
69.	The claimant’s first recorded complaints of gastro-oesophagus reflux were on 30 May 2019, which the insurer submitted, coincides shortly after the commencement of radiation and chemotherapy. The insurer suggested it was possible that the gastrointestinal problems were related to the recently diagnosed hernia. 
70.	Whilst the claimant asserts that the alleged gastrointestinal issues relate to medications associated with the injuries allegedly sustained in the subject accident, the Medicare/PBS records reveal that the claimant purchased oxycodone on 25 December 2018, being the first prescription pain medication purchased post-accident, and again on 15 March 2019. There was no further prescription pain medication purchased, until the claimant obtained pregabalin and piroxicam in April 2020.
71.	The insurer queried the accuracy of the claimant’s assertions noting pre-accident medication. It also noted that Dr Herald had a history of no prior neck symptoms despite the records showing consistent cervical complaints since 2011 up until June 2018.
72.	The claimant advised Dr Keller that there were no prior symptoms who noted inconsistencies on examination.
73.	The insurer relied on a number of credit issues including:
(a)	failing to refer to pre-accident history to a number of doctors;
(b)	asserting she hit her head in the motor accident when contemporaneous complaints show the opposite;
(c)	inconsistent range of movement recorded by the various health practitioners of the neck and both shoulders, and
(d)	inconsistency between social media showing social activities and what is asserted by the claimant.
Insurer’s submission dated 16 February 2021
74.	The insurer noted that Dr Berry had not referred to any evidence concerning the claimant’s medication usage. Reference was also made to cl 6.244 of the Guidelines. 
Insurer’s submissions dated 22 April 2022
75.	These submissions were filed opposing the application to review the assessment. It was submitted that there were no symptoms at the time of the assessment by Dr Berry and there was no report of symptoms to Medical Assessor Cameron. The insurer otherwise noted the opinion of Dr Sethi who assessed 0%. 
RE-EXAMINATION
76.	Ms Ali was examined by both Medical Assessors on the Review Panel. Their joint examination report is as follows:
“Ms Ali attended unaccompanied. She was married at 17 years of age and is currently 60 years old. She lives with her husband and son. She migrated to Australia from Fiji in 1981. 
She completed Year 12 at school. Her past employment had included 22 years as a machinist with an Ugg boot manufacturer with Australian sheepskin in Wetherill Park, and earlier 10 years spent as a machinist with Bonds. 
She has not worked in any paid employment since the subject accident of 2018.
PAST MEDICAL HISTORY
Ms Ali described being ‘very healthy’ prior to the Subject accident. She said that she would exercise regularly by walking with a friend. She had not been prescribed any medication. She would travel every six months to New Zealand to visit her son and she had travelled to Dubai in 2019 following the accident, though she said that the cost of the trip had been provided by friends and she could go because wheelchair access was available. 
She was asked about the multiple entries in her general practitioner’s notes through 2015, 2016, up to 2018 with mention of neck and back pain. She said that she had had some neck and back symptoms over the years, but she didn’t regard these as being very severe and she said that the general practitioner had to ‘write something’ on the referral. And this was ‘so I could have free physio’ via Medicare, this being the only reason she had actually had the physiotherapy.
HISTORY OF THE SUBJECT ACCIDENT
Ms Ali had been a driving a 2009 four-door Toyota Corolla in the middle lane of a four-lane road. She was approaching a traffic light when a P plate driver had crossed in front of her causing her to T-bone that car. There had been no airbag deployment with the impact, but she was thrown towards the steering wheel. She needed assistance from the police to get out of the car. 
She was taken by ambulance to Fairfield Hospital where she was found to have fractured sternum and left rib. She was then transferred to Liverpool Hospital where she spent eight days in ICU for observation, but there was no interventional treatment required. Following this, she came under the care of a general practitioner and a psychologist, Dr Rastogi, the latter diagnosing depression, PTSD, and generalised anxiety disorder.
CURRENT TREATMENT
Ms Ali takes one quetiapine tablet at night, two Lyrica tablets and Panadeine Forte per day. She said she has physiotherapy treatment but pays for this herself. 
She said she had a gastroscopy performed 6 July 2020 by Dr Krishna, she understood a hernia was identified, but nothing much else. 
She added that 18 months later, she was still experiencing some epigastric burning and so a further gastroscopy performed. 
CURRENT COMPLAINTS
Ms Ali described constant neck pain radiating towards both shoulders. There is constant headache. She finds her right-hand fatigues quite readily, for instance when pumping petrol. She said she can drive a car for about seven to ten minutes, and can drive the car to visit her psychologist, which is 40 minutes from home as she takes multiple breaks on the way. 
There is constant low back pain. 
She has right ankle pain. 
She said there is still a lump over the left chest wall from the fractures. She finds she can’t wear a bra because it is too uncomfortable, and when she drives the car, she has to hold the seat belt away from her chest. 
On specific questioning, there were no radicular complaints pertaining to her neck or low back. 
She needs to support herself on the railing when climbing stairs. She said her husband does most of the housework. 
She was asked about her Facebook page, but she was unsure why some of the photos had been taken down. She added that these were really just pictures of her and her girlfriends at dinner and they would pick her up from home anyway.
PHYSICAL EXAMINATION
Ms Ali was right hand dominant and weighed 75 kg and was 157 cm tall. She had a normal gait. She had bilateral flatfeet. She would not walk on her toes due to right ankle pain. She could walk on heels. She could squat to about 80 degrees of knee flexion before reporting anterior knee pain.
She had a palpable lump over the tenth left costochondral junction. There was tenderness over the sternum. 
On examination of the neck, movements were to half normal in all planes. There was no asymmetry, muscle spasm or guarding. Neck movements precipitated occipital headache. 
On examination of the upper limbs, circumferential measurements were consistent with right hand dominance, there was no muscle wasting. There was normal power, sensation and reflexes bilaterally. Neurotension signs were negative bilaterally.
On examination of both shoulders, movements were variable due to pain and positioning. There were no clinical findings to suggest any discrete pathology of either shoulder. There was a click on the right side, and there was tenderness over the trapezius muscles bilaterally. Forward flexion bilaterally was 100 to 140 °, abduction was 90 to 95 on the right, 90 to 120 on the left, external rotation was 30 to 35 ° bilaterally. Internal rotation 70 ° bilaterally, external rotation 90 ° bilaterally.
On examination of the upper back, rotation was to half normal bilaterally. There was no asymmetry, muscle spasm or guarding. 
On examination of the lower back, forward flexion and extension was to two-thirds normal, lateral flexion was to half normal bilaterally, rotation was to half normal bilaterally. There was no asymmetry, muscle spasm or guarding. 
On examination of the lower limbs, straight leg raise was 10 ° on the right, 30 ° on the left when lying supine. Neurotension signs were negative bilaterally.
Circumferential measurements were equivalent at the thighs, but right calf measured 37 cm, left calf 39 cm. Lower limb reflexes, sensation, and power was normal bilaterally.
On examination of both knees, there was no ligamentous instability. She had 120° flexion and full extension bilaterally. There was a click with the movement of the right knee and there was patellofemoral tenderness and crepitus. Left knee examination was normal.
ASSESSMENT
Cervical spine 
The soft tissue injury to the neck (cervicothoracic spine) is assessed as DRE Cervicothoracic Category I (0% WPI) using the Diagnosis Related Estimate method. This was because there were symptoms, but no non-verifiable radicular complaints, no asymmetry, muscle spasm or guarding. There was normal neurology in the upper limbs, so no criteria to diagnose radiculopathy.
Lumbar spine 
The soft tissue injury to the lower back (lumbosacral spine) is assessed as DRE Lumbosacral Category I (0% WPI) using the Diagnosis Related Estimate method. This was because there were symptoms, but no non-verifiable radicular complaints, no asymmetry, muscle spasm or guarding. There was normal neurology in the lower limbs, so no criteria to diagnose radiculopathy.
Right knee 
The soft tissue injury to the right knee was assessed at 2% WPI based upon the footnote to Table 62, page 83 AMA4 Guides, as there had been direct trauma to the knee, and on examination there was patellofemoral pain and crepitation. There were no other criteria to add to this impairment.
Left knee 
The soft tissue injury to the left knee was assessed at 0% WPI as there were no abnormalities on clinical examination.
Digestive system
There were symptoms of a specific gastrointestinal condition. However, there was also no medication current or past that would lead to any such condition.”
FINDINGS
77.	The Panel conducts a new assessment of all the matters with which the medical assessment is concerned. The Panel adopts the joint examination findings of the two Medical Assessors and adds the following reasons.
78.	The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen and Insurance Australia Ltd v Marsh.
Causation - legal principles
79.	Clauses 6.6 and 6.7 of the Guidelines provide:
“Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.	The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. 	The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.' 
This, therefore, involves a medical decision and a non-medical informed judgement.
There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
80.	In Peet v NRMA Insurance Ltd the Court reviewed a number of Supreme Court authorities including the observations in Owen v Motor Accidents Authority of NSW when Campbell J stated that it was “well to emphasise that the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by the Civil Liability Act, 2002, s 5D”.
81.	More recently in Hunter v Insurance Australia Ltd  the Court noted that a Review Panel was obliged to apply the Guidelines (set out above at [79] herein) which incorporated “common law principles of causation”.
82.	Various authorities have discussed error made by review panels and medical assessors in determining the issue of causation solely based on the absence or record in contemporaneous notes
83.	In Norrington v QBE Insurance (Australia) Ltd the Court held that the panel committed jurisdictional error by treating the absence of any complaint to the left shoulder for nine months after the accident as dispositive and thereby failed to properly discharge their statutory function to ascertain causation.
84.	The Court referred to and applied the Court of Appeal decision in AAI Ltd v McGiffen and noted that the presence or absence of a contemporaneous complaint “is relevant in this context, it must not be treated as conclusive of the question of causation”. Reference was made to authorities which provided that “busy doctors sometimes misunderstand or misrecord histories of accidents” (Davis v Council of the City of Wagga Wagga) and the existence of other evidence such as the injured person’s statement and the claim form (Bugat v Fox).
Cervical spine 
85.	The clinical records show a long history of neck and back pain with the last reference only two months prior to the motor accident. These extent of these records does not comfortably sit with the claimant’s history to Dr Keller of an absence of prior problems to or the manner in which the prior symptoms were downplayed to the medical assessors.
86.	We accept that there was an exacerbation of the cervical spine caused by the motor accident. However, by October 2018 Dr Lee described this condition as “ok” and movement “good”. Given the extensive nature of the pre-accident cervical problems, the absence of pathology caused by the accident and the examination findings of Dr Lee in October 2018, we conclude that the motor accident caused a short-term exacerbation of cervical spine pain for a period of approximately two months.
Knees 
87.	We accept that the right knee was injured in the motor accident when it impacted into the dashboard. The insurer’s submission that the right knee was not mentioned in the hospital notes is wrong. Bilateral knee pain is referenced in the contemporaneous hospital notes. The medical assessors have otherwise explained the assessment of the impairment of the knees.
Shoulders
88.	We do not accept that there was a discrete injury to the shoulders in the motor accident for a number of reasons. First, there was no complaint of discrete shoulder injury at the hospital following the motor accident and examination of the shoulders at that time were reported as normal. Secondly, post hospital notes in September 2018 referred to restriction in shoulder movement due to the fractured sternum. We accept that this is the likely explanation for some limitation of shoulder movement at that time. Thirdly, the examination undertaken by the medical assessors was inconsistent with discrete shoulder injury and consistent with restriction of movement due to pain. 
89.	There is a claim for impairment due to restriction in shoulder movement pursuant to the Nguyen principle. The clinical findings by the medical assessor does not show consistency with respect to shoulder movement. The gross variation in shoulder movement on repeated testing by the medical assessors is not explicable on the basis of complaints of pain. We do not accept that the range of motion of the shoulders is a valid parameter of impairment evaluation because the variation in movement was extensive and fell well outside slight deviations that may be expected on repeated testing. 
90.	For the reasons stated above, we do not accept that the ongoing cervical spine problems are related to the motor accident. We otherwise do not accept that the healed sternum fracture would not cause restriction in shoulder movement. Accordingly, we do not accept that any loss of shoulder movement is causatively related to the motor accident.
Thoracic spine
91.	The thoracic spine was referred for assessment. There was an absence of recorded complaint of symptoms in the thoracic spine.
92.	Further, Medical Assessor Gibson found no symptoms in the thoracic spine. There is no basis in these circumstances to support any assessment of impairment of the thoracic spine.
Lumbar spine
93.	The claimant had a significant pre-existing condition which was likely aggravated by the motor accident. The findings and explanation by the medical assessors establish that the lumbar spine is assessed at DRE I.
Gastrointestinal condition
94.	Dr Berry assessed the gastrointestinal condition based on the biopsy finding of gastritis. He opined that the condition was due to medication intake. Reference was made to Table 6.3 of AMA 5. The relevant table under AMA 4 is Table 2 of Chapter 10 which is in similar terms.
95.	Nonsteroid anti-inflammatory medication can cause gastritis. The table of medications referred to by the insurer is limited to prescription medication and does not mean that the claimant consumed other medication. However, the claimant’s history reported to the medical assessors and elsewhere was that Ms Ali only consumed Panadeine forte for pain relief. This medication does not cause antral gastritis.   
Deduction for pre-existing impairment
96.	The insurer referred to pre-existing pathology and submitted that there should be a deduction resulting in 0% whole person impairment. Whilst there was pre-existing pathology and symptoms in the lumbar and cervical spines, the insurer has not explained or established, in accordance with cl 6.31 of the Guidelines, that there was a pre-existing symptomatic permanent impairment in the same region at the time of the motor accident.
97.	The terms of the clause suggest that any onus is on the insurer to satisfy that there should be a deduction for pre-existing impairment because the clause provides that there must be “evidence of a pre-existing symptomatic permanent impairment in the same region”. It is clear from the words of the provision that it must be established that there was a symptomatic pre-existing impairment rather than the concept being disproved by the injured person. 
98.	These comments on onus are consistent with observations by the Court of Appeal of where the onus lies on a deduction for pre-existing conditions under the workers compensation legislation.
99.	The insurer’s submission that there should be any deduction is rejected. In any event, the submissions were directed to the cervical and lumbar spines which were assessed at 0%. Accordingly, the issue of deduction does not apply. 
Physiotherapy – treatment and care
100.	The claim for physiotherapy is eight sessions as outlined in the request dated 7 May 2020. As Medical Assessor Cameron noted, there has been multiple physiotherapy treatments provided without any tangible benefit.  
101.	The claimant has an extensive pain condition which has been ongoing over a number of years. We do not accept that the provision of physiotherapy according to the physiotherapy plan is necessary as, in light of the claimant’s presentation and past history, we do not expect that there will be any benefit. 
102.	For the same reasons, we do not accept that the physiotherapy will improve recovery.
CONCLUSIONS
103.	The certificates issued by Medical Assessor Cameron are confirmed.