DETERMINATION OF REVIEW PANEL	
	
CITATION:	Haddad v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMP 452	
		
CLAIMANT:	Abir Haddad	
		
INSURER:	Insurance Australia Limited t/as NRMA Insurance	
		
REVIEW Panel	 	
		
MEMBER:	Susan McTegg	
		
MEDICAL ASSESSOR:	Les Barnsley	
		
MEDICAL ASSESSOR:	Geoffrey Curtin	
		
DATE OF DECISION:	10 November 2022	
		
CATCHWORDS:	MOTOR ACCIDENTS – The claimant sustained injury on 19 December 2015 when the vehicle in which she was a front seat passenger was hit from the rear in a five car pile-up; the claimant alleged she struck her right wrist against the baby seat when she reached over to protect her children at the time of impact; only mention of the accident in treating medical records other than the medical certificate was an attendance on 9 March 2017; various histories provided of a fracture of the right wrist but no clinical record of treatment of a right wrist fracture; question of causation of alleged injures; Held – as per Kinchela v Insurance Australia Group Ltd T/a NRMA Insurance question not of presence of contemporaneous record but whether accident materially contributed to the injury; Panel found no evidence of injury to the lumbar spine, right hip, left hip, right leg or left leg; Panel found soft tissue injury to the right wrist, right shoulder and cervical spine; 0% whole person impairment (WPI) for injury to cervical spine; 0% WPI for injury to right wrist; 1% WPI for injury to right shoulder.	
DETERMINATIONS MADE:  	Review Panel Certificate issued under Part 3.4 of the Motor Accident Compensation Act 1999 following a review under s 63 as to 

WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10%

The Panel revokes the Certificate of Medical Assessor Moloney dated 26 November 2021 and issues a new certificate determining that the following injuries were caused by the motor accident and do not give rise to a whole person impairment (WPI) which is not greater than 10%:
•	cervical spine – soft tissue injury; 
•	right shoulder – soft tissue injury, and 
•	right wrist – soft tissue injury. 
The Panel finds the following injuries were not caused by the motor accident:
•	lumbar spine – soft tissue injury;
•	right hip – soft tissue injury;
•	left hip – soft tissue injury;
•	right left – soft tissue injury, and
•	left leg – soft tissue injury.

	

REVIEW PANEL REASONS FOR DECISION
BACKGROUND
1.	On 19 December 2015 on Bay Street, Brighton-Le-Sands Ms Abir Haddad (the claimant) was a front seat passenger in a Prado which was hit from the rear in a five-car pileup where the vehicle in which she was a passenger was vehicle four from the front (the accident).  
Ms Haddad struck her right wrist against the baby seat when she reached over to protect her children at the time of impact.  Ms Haddad asserts she suffered injury to her neck, back, right shoulder, right wrist, right hip, left hip, right leg and left leg. 
2.	Insurance Australia Limited trading as NRMA	Insurance (the insurer) is the relevant insurer with liability to pay any damages to the claimant under the Motor Accident Compensation Act 1999 (the MAC Act).
3.	This dispute is in relation to whether the degree of permanent impairment sustained by the claimant as a result of the injury caused by the accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.
Certificate of Assessor Nel Wijetunja 
4.	Ms Haddad was assessed by Assessor Wijetunja who issued a certificate dated 
29 March 2017.  
5.	Assessor Wijetunja reported Ms Haddad experienced the onset of neck pain the day after the accident which radiated down into the shoulder and right wrist.  She also recorded 
Ms Haddad recalled lower back pain and bilateral hip pain which was worse on the right. About 24 hours after the accident, because of a significant increase in pain in the neck, back and left shoulder Ms Haddad was taken by ambulance to hospital where she underwent
X-rays. A right wrist fracture was diagnosed. Ms Haddad also reported physiotherapy treatment to her shoulders, neck, lower back, hips and legs commenced a few months later. 
6.	Assessor Wijetunga diagnosed Ms Haddad with whiplash associated disorder of the cervical spine, musculoligamentous strain of the lower back, right shoulder and right hip, right wrist fracture and non-verifiable radicular symptoms of the right leg arising from the musculoligamentous strain of her lower back. The Assessor did not specifically comment upon the left hip but appears to accept it as having been caused by the accident.
7.	The Assessor relies upon there having been a temporal connection between the accident and the onset of symptoms. She noted no previous history of neck, back or right shoulder pain.
8.	Assessor Wijetunga assessed WPI at 14% broke down as follows: 
1.	(a)	 5% WPI for the cervical spine;
2.	(b)	 5% for the lumbar spine, and 
3.	(c)	 4% for the right hip.
9.	She assessed injuries to the right shoulder, right wrist and left hip at 0% WPI.
10.	The insurer sought a further assessment pursuant to s 62 of the MAC Act on the basis there was additional relevant material which was capable of having a material effect on the outcome of the previous assessment. This application was successful, and the claimant was assessed by Assessor Moloney on 27 October 2021. 
MEDICAL ASSESSMENT UNDER REVIEW
Certificate of Medical Assessor Moloney
11.	Medical Assessor Moloney issued a certificate dated 26 November 2021 certifying a 1% WPI in respect of injury to the right wrist issued on 27 October 2021.  It is this assessment which is the subject of the current review application which was filed by the claimant pursuant to 
s 73 of the MAC Act.  
12.	The injuries referred for further assessment were as follows:
•	cervical spine – soft tissue injury;
•	lumbar spine – soft tissue injury;
•	right shoulder – contusion of the rotator cuff; 
•	right wrist – fracture; 
•	right hip – soft tissue injury;
•	left hip – soft tissue injury;
•	right leg – soft tissue injury, and
•	left leg – soft tissue injury.
13.	Assessor Moloney reported following the accident and due to increasing generalised pain, in particular, right wrist pain, her general practitioner (GP) attended her home and organised an X-ray of the right wrist which was fractured and treated by a plaster cast.
14.	He reported Ms Haddad stated she initially had pain in the neck, back, right shoulder and right wrist and later developed pain in the right hip region. 
15.	Assessor Moloney found the claimant sustained a soft tissue injury to the cervical spine noting it was recorded in the personal injury claim form, she has had ongoing discomfort in the neck since and has undergone cortisone injections in the cervical spine. However, he found no dysmetria or guarding, no signs of radiculopathy or non-verifiable radicular complaints in the upper limbs and assessed a 0% WPI based on the classification of DRE I.
16.	Assessor Moloney found the claimant sustained a soft tissue injury to the lumbar spine, noting the mention by the treating GP four months after the accident, the inclusion of injury to the back in the personal injury claim form and the cortisone injections organised by 
Dr Abraszko.  However, he found no dysmetria on testing of range of movement with no guarding on palpation of the lumbar musculature.  He found no signs of radiculopathy or non-verifiable radicular complaints in the lower limbs. He assessed at 0% WPI based on the classification of DRE I.
17.	Assessor Moloney found the claimant sustained a soft tissue injury to the right shoulder, noting it was referred to in the medical certificate and in the personal injury claim form. Using AMA figures 38, 41 and 44 he assessed a 0% WPI for the right shoulder.
18.	Assessor Moloney assessed a 1% WPI in respect of the fracture of the right wrist. 
19.	Assessor Moloney was not satisfied the claimant sustained any injury to either hip in the accident noting it was not mentioned in the GP’s notes, it was not referred to in the personal injury claim form and no investigations were undertaken. On examination Assessor Moloney found a decreased range of movement in the right hip but he concluded it was not related to the accident. 
20.	Similarly, noting the lack of complaint Assessor Moloney found the claimant did not sustain injury to either leg in the accident. 
REVIEW PROCEDURE
21.	The claimant filed an application for review of the medical assessment of Assessor Moloney. 
22.	On 24 February 2022 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).
23.	The Personal Injury Commission (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).
24.	Under cl 14A(1)(a)(vii) of 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. 	
25.	Clause 14F(2) of Schedule 1 of the PIC Act states that the new review provisions apply in relation to a decision of a new decision-maker in completed pre-establishment proceedings, including the medical assessment the subject of this review which was completed before 1 March 2021. 
26.	The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission. The President’s delegate referred this application for review to the Panel. 
27.	The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines are based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.
28.	Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.
29.	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.
30.	The review is by way of a new assessment of all matters with which the medical assessment is concerned.
31.	Clearly in matters involving assessment of permanent impairment there are strong arguments for a review panel conducting a re-examination. The Panel considered it appropriate for the assessment to review all matters with which the assessment of Assessor Moloney was concerned.
MATERIAL BEFORE THE REVIEW PANEL
32.	The Panel issued a Direction to the parties on 25 March 2022 (the first Direction) which required each party to file an indexed, paginated bundle of documents. 
33.	In response to this direction the solicitor for the claimant uploaded to the portal a bundle of documents paginated from pages 1 to 152 and labelled AD5. The solicitor for the insurer uploaded to the portal a bundle of documents paginated from pages 1 to 3,167 and labelled AD3 with the index labelled AD4. The insurer also uploaded to the portal the police report which was labelled AD6.    
34.	The claimant was 30 years of age at the date of accident and is currently 36 years of age.

The police report
35.	Police report event Ref No. E59589744 described the accident as a four car collision where the vehicle driven by Walid Haddad (vehicle 2) was stationary behind another vehicle (vehicle 3) which was stationary behind another vehicle waiting to attempt a reverse park (vehicle 4) when a vehicle driven east on Bay Street, Rockdale collided with the rear of 
Mr Haddad’s vehicle which was in turn pushed into the rear of vehicle 3 which was in turn pushed into the rear of vehicle 4.  
36.	According to the police report there were reportedly two occupants in the vehicle driven by Walid Haddad who was conveyed by ambulance to St George Hospital. There is no mention of children in the rear of the vehicle driven by Walid Haddad. 
Personal injury claim form
37.	The personal injury claim form dated 14 April 2016 lists the injuries sustained in the accident as neck, back, right shoulder, right wrist fracture and shock. The claimant disclosed a prior medical history of depression for approximately three years. 
38.	The accompanying medical certificate completed by Dr Arefeen and dated 19 May 2016 listed the injuries as fracture of the wrist (right hand) and injury to the right shoulder.
Treating medical records 
Primary Health Care Medical and Dental Centre
39.	The following records predate the accident:
(a)	8 May 2006 - complaint of left shoulder, intraclavicular and upper back pain…provoked on moving neck to left side;
(b)	28 February 2007 - back pain, and
(c)	23 October 2007 - pregnant with back pain.
Records from Royal Prince Alfred Hospital
40.	Records provided by Royal Prince Alfred Hospital disclose the following:
(a)	September 2007 - vertebral assessment notes lower back pain on diagram and outer sides of the buttocks. Radiculopathy queried;
(b)	30 November 2007 - physiotherapy notes - “LBP” improved. Back care education;
(c)	31 January 2008 - physiotherapy note - treatment of pelvic/back pain and incontinence of urine and faeces;
(d)	31 January 2008 - note by Dr Wong, anaesthetist – “pt c/o l-s back pain”, pre-existing back pain pre-delivery predominantly sacral region, also complaining of pain around buttocks. Tender to palpation through lumbosacral region, worst over epidural site, no radiation, and
(e)	4 February 2008 - MRI spine report by Dr Tsung - There is a 2 x 8.9 x 6.5cm diameter area of oedema in the subcutaneous fat from approximately L1 to L4 level. There is no evidence of epidural disease.
Sydney Medical Service Co-operative Limited 
41.	On 17 April 2011 Dr Lazarus noted neck pains, 130/min mild neck stiffness.
Liverpool Hospital
42.	Records from Liverpool Hospital predate the accident and relate to the claimant’s aneurysm/headaches.
Canterbury Hospital
43.	The claimant attended on 14 June 2015 with a history of right parietal headache.
Doctors on Macquarie
44.	These records detail consultations with Dr Hassan between 15 July 2013 and 
1 September 2016. There are no complaints of relevance either prior to or after the accident, other than a reference to right hand cramping and clawing on 30 October 2015.  
Concord Hospital
45.	The records disclose:
(a)	2 December 2008 - claimant presented to ED with weakness in right side of the body following a fall the day before;
(b)	17 January 2015 - claimant suffered burn to right middle finger, and
(c)	21 September 2015 - laparoscopic sleeve gastrectomy.
Records of Isra Medical Services (Dr Arefeen)
46.	On 18 June 2015, the claimant had a seizure a few hours earlier. The claimant was on Epilim, and a history of brain aneurism was noted as having been present for the previous year. 
47.	There were further records of seizure with associated complaints of severe headache on 
1 August 2015, 27 August 2015, 27 September 2015, 23 November 2015 and 
30 November 2015. 
48.	On 1 February 2016 the claimant attended the surgery and complained of fever, a sore throat, difficulty swallowing and some vomiting. It was specifically recorded that there was no neck stiffness. There was no mention of the accident. 
49.	On 5 February 2016 Ms Haddad complained of mild dizziness and on 24 February 2016 
Dr Arefeen noted the history of aneurism and epilepsy and reported Ms Haddad had a severe headache, dizziness and sore throat. 
50.	On 22 March 2016 Dr Arefeen reported back pain for the first time although no history of the accident was recorded. 
51.	Ms Haddad consulted Dr Arefeen on 27 March and 30 March 2016 in relation to complaints unrelated to the accident.  
52.	On 6 April 2016, Dr Arefeen recorded that Ms Haddad was recently discharged from 
St George Hospital after an attack of seizure activity. She had low blood pressure in hospital but was otherwise feeling well. 
53.	Notwithstanding consultations on 13 April 2016, 22 April 2016, 7 May 2016, and 8 May 2016 no history of the accident appears in the clinical records of Dr Arefeen. 
54.	On 19 May 2016 Dr Arefeen undertook a home visit.  Whilst Dr Arefeen completed the medical certificate on that date the clinical records make no mention of the accident, or any injury referable to the accident or the completion of the medical certificate. 
55.	Home visits by Dr Arefeen continue thereafter on a regular basis. The consultations generally concerned the ongoing management of the claimant’s seizures and headaches. The following consultations are notable: 
(a)	8 June 2016 – severe headache yesterday;
(b)	28 June 2016 - the claimant was on Endone for her severe headaches and Lexapro for depression. She was prescribed Zoloft. There was no mention of the accident;
(c)	17 October 2016 - it was noted that the claimant was recently admitted to hospital (for her seizures) and was awaiting the results of a brain MRI.  This history was subsequently repeated over several consultations, and
(d)	19 September 2017 - claimant had a seizure two hours earlier. The ambulance attended but the claimant declined to attend hospital. 
CT of the lumbar spine
56.	On 12 May 2017 Ms Haddad had a CT of the lumbar spine on referral from Dr Arefeen.  The radiologist notes the history of lower back ache and provides the following comment:
“1.	Mild posterior disc bulges at L4/L5 and L5/S1 levels without significant canal stenosis.
2.	The visualised lumbar nerve root exit normally bilaterally and the S1 nerve root outline normally within the lateral recess.
3.	Mild facet joint degenerative changes at L4/L5 and L5/S1 level.”
St George Hospital
57.	Records from St George Hospital disclose the following:
(a)	5 June 2015 - claimant presented with lump on lower leg;
(b)	26 October 2015 - abdominal pain post four weeks after gastric sleeve surgery;
(c)	30 November 2015 – presented with worsening of her headache and abdominal pain;  
(d)	1 April 2016, - presented with severe headache;
(e)	12 May 2016 – claimant presented with an altered level of consciousness;
(f)	29 May 2016 - claimant presented with worsening frontal headache after falling off quad bike;
(g)	17 September 2016 – presentation following episode of self-harm and review by mental health team; 
(h)	31 October 2017 – presented post seizure, and 
(i)	4 November 2017 – presentation with thoughts of self harm on background of anxiety, depression and post-traumatic stress disorder (PTSD) from DV (domestic violence). 
Miranda Medical Centre
58.	The claimant first presented on 25 August 2016 in relation to her aneurysm induced epilepsy, anxiety and migraine. No mention is made of the accident.
Primary Physiocare
59.	Clinical notes of Primary Physiocare contain the following entries:
(a)	9 March 2017:
“History of chronic headaches with right sided weakness. 31 year old lady indicates migraines.
No significant abnormality is seen.

Chronic cervicogenic headaches. Restricted spinal mobility. Poor postural control & endurance.
 MVA: 19/12/2015
Nil other history. 
Pt reports shoulder & neck pain. Right worse than left. 
Pt tender to touch. Increased muscular tone in cervicothoracic spine.
Rx/
Remedial massage aimed at decreasing sensitivity to touch. Soft tissue release focusing on suprainfraspinatus, neck, scalenes, upper traps, gentle scapular mobes.
Active assisted thoracic mobility/ROM exercises to self-management.”
(b)	16 March 2017: 
“Pt reports she has been compliant with exercises. 
Reporting an improvement in her back pain. Short term relief. 
C/o tightness in upper back
Remedial massage. Soft tissue prone release focusing on upper/middle & neck, scalenes and suboccipitals.”
(c)	4 May 2017:
“Pt reports feeling anxious & stressed. Going through a difficult time in her life.
Reports tightness in her upper/middle back.
Remedial massage continued treatment. 
Soft tissue release in prone lying focusing on upper/middle back & neck, scalenes and suboccipital.”
(d)	11 May 2017:
“Pt reports feeling a strong headache & dizziness. Feeling anxious & stressed as she is going through a tough time.
Remedial massage. Soft tissue release in prone focusing on middle/upper back & neck, scalenes & suboccupitals.
Face & TMJ massage.”  
(e)	1 June 2017: 
“Pt reports upper back tightness.
Remedial massage. Soft tissue release in prone focusing on upper/middle back & neck, scalenes & suboccipital.
Prescribed gentle active ROM exercise in supine lying for improved spinal mobility.
Pain management strategies. Advised to return to GP for further assessment and recommendation re pain.” 
City Doctors Wangee
60.	Clinical records from City Doctors Wangee commence on 24 February 2018. Whilst no mention is made of the accident the records disclose the following:
(a)	2 February 2018 - referral report from Dr D’Silva - continues treatment for psychological illness due to exacerbation of psychological symptoms of panic disorder coupled with generalized anxiety disorder;
(b)	24 February 2018 - heart burn, thoracic pain, dysphagia, mid pain discomfort. CNS symptoms; 
(c)	3 March 2018 - severe depressive symptoms; 
(d)	9 September 2018 – diagnosis of viral vertigo; 
(e)	26 September 2018 - lower back pain, radiation to right leg, electric pain radiation, weakness to stand, spinal angina. Diagnosis - myoligamentous strain injury of the spine - lumbar region; 
(f)	12 December 2018 - presents with a depressed mood. Shows mild mixed anxiety, reduced mood, loss of sleep, fatigue, mild tremor; 
(g)	3 June 2019 a medical certificate of Dr Aladdin Matter states Ms Haddad has been under his care for the effects of brain aneurism, fibromyalgia and epilepsy and is unfit for work from 3 June 2019 to 12 August 2019;
(h)	16 June 2019 – presents inter alia with low back pain, radiation to right leg, electric pain radiation, weakness to stand, spinal angina. Diagnosis - Myoligamentous strain injury of the spine. Region lumbar;
(i)	7 July 2019 - presents for follow up with low back pain, right shoulder pain, radiation to right leg, electric pain radiation, weakness to stand, spinal angina. Diagnosis – Myoligamentous strain injury of the spine. Region Lumbar; 
(j)	27 July 2019 – presents with a migraine…photophobia thumping headache, neck stiffness, abdomen pain, other snc signs. …also presents with pain in right shoulder;  
(k)	3 October 2019 – presents with low back and hip pains, she has headaches and neck stiffness. Diagnosis: ? Lumbar spine strain, and
(l)	1 April 2020 – presents…low back pain, radiation to left leg, electric pain radiation, weakness to stand, spinal angina… Assessment ? Lumbar spine strain injury.
Canterbury Afterhours Clinic
61.	Whilst no mention was made of the accident the following relevant records appear:
(a)	24 April 2019 - complaining of sudden onset of lower back pain for two days, no history of injury, and 
(b)	21 April 2019, 21 June 2019 and 11 October 2019 - complaining of unilateral headache for few hours associated with aura, nausea and vomiting with neck pain.
Bankstown-Lidcombe Hospital
62.	The records contain the following entries: 
(a)	17 April 2011 - claimant was brought in by ambulance for headache, neck pain and stiffness; 
(b)	25 January 2015 - claimant brought in by ambulance with right sided weakness, facial droop and slurred speech; 
(c)	25 July 2018, 29 August 2018, 10 February 2019 - abdominal pain; 
(d)	10 February 2019 claimant conveyed by ambulance with left sided back pain and abdominal pain;
(e)	12 February 2019 - requested opinion from obstetrics and gynaecology team for pain plus nausea without vomiting. Was doing physical work (carrying a desk) at work, felt left adnexal pain that radiates to the back. Pain worsening over time, currently 9-10/10 localised to left iliac fossa radiating down to pubis or left back;
(f)	9 September 2019 – headache; 
(g)	14 March 2020 - presented to ED with Abdominal pain. No neck tenderness/stiffness, and
(h)	on 11 February 2020 the claimant presented following an overdose of Temazepam.
Greenacre Medical Centre
63.	Records from Greenacre Medical Centre detail one attendance on 29 October 2018 for migraine.
Chullora Marketplace Medical Centre
64.	Records from Chullora Marketplace Medical Centre refer to attendances from 8 August 2018 to 29 July 2019 in relation to complaints of depression, abdominal pain, headaches and UTI (urinary tract infection).
A2Z Medical Centre
65.	Records from A2Z Medical Centre note attendances on 25 May 2017 and 27 July 2019 that do not relate to the accident.
Dr Kassar
66.	Records from Dr Kassar record one consult on 31 January 2021 stating the claimant is suffering from post-operative pain following abdominoplasty.
Medico-legal reports
Report of Dr Peter Giblin, 22 August 2016
67.	Dr Giblin, orthopaedic specialist assessed the claimant at the request of her lawyers. He provided a report dated 22 August 2016. He reported it took a week until the right wrist fracture was diagnosed and treated with a plaster cast. Other than taking a history of disabilities and complaints Dr Giblin did not otherwise obtain any history from Ms Haddad as to the onset of symptoms in relation to the accident. However, he apparently accepted that Ms Haddad had sustained a fracture of the right wrist, soft tissue injury to the right shoulder, soft tissue injury to the cervical spine, soft tissue injury to the lumbar spine, soft tissue injury to both hips with referred symptoms to the lower extremities, all causally related to the accident. 
68.	He reported no other structured treatment other than medication including Tramal injections from her GP. 
69.	On examination he found the right shoulder had no adhesive capsulitis but a positive impingement test for the rotator cuff. Based on active range of motion of the right shoulder he found a 4% impairment of the upper extremity. He found restriction of movement of the lumbar spine and tenderness in the midline at L5. He found the left hip had an asymptomatic femoral acetabular impingement whilst the right hip was quite irritable with flexion not exceeding 90º and internal rotation not exceeding 5º. Attempted active assisted range of motion of the right hip at the extremes was reproductive of complaints of groin pain. 
70.	Dr Giblin assigned a 2% WPI in respect of injury to the right shoulder, nil rateable impairment of the right wrist, DRE category I equating to 0% WPI for the cervical spine, DRE category 2 equating to 5% WPI for injury to the lumbar spine and 4% WPI for injury to each hip.  He assessed a total of 15% WPI. 
Dr Peter Yu, 20 February 2017
71.	Dr Peter Yu, occupational physician assessed the claimant at the request of the insurer and provided a report dated 20 February 2017.
72.	He reported a history of migraines attributed to an aneurism, surgical removal of her gall bladder, appendix and part of her stomach.  He reported that the only occasion on which she had back pain before the accident was during a ‘lumbar puncture’ after a seizure. 
73.	Dr Yu reported upon waking on 20 December 2015 Ms Haddad, “noticed pain in her head, right shoulder and right wrist.  She also noted pain in her right low back and right hip, spreading along the entire length of her right lower limb to the right sole. This was a ‘hot’ and ‘striking’ pain”.
74.	Dr Yu reported that as a direct result of the accident Ms Haddad stated she experienced headache, neck pain, pain in the right shoulder and shoulder blade, pain in the right forearm and wrist, pain in the upper back, pain in both hips, more on the right than the left, a pain that felt like a ‘knife’ and ‘electric shock’ in the back of her right hip and thigh associated with a hot pain that spread to the right sole and a lump in the back of her right wrist. 
75.	Dr Yu also reported she was using two tablets of Endone and two Panadeine each day. She reportedly had multiple scans in Bankstown, Liverpool and St George Hospitals, had attended physiotherapy and undergone massage therapy both without any real benefit. Ms Haddad also recalled having an injection in her neck, right shoulder and low back. 
76.	Dr Yu felt that his findings on examination were consistent with a constitutional, degenerative condition of the right hip and irritation of the right sacroiliac joint which he also noted was consistent with the leg length discrepancy he observed.   
77.	Dr Yu concluded that Ms Haddad was unlikely to have sustained any injury more serious or clinically significant than a self-limited soft tissue injury of her right shoulder, neck and upper back which he considered would have resolved within one week of the accident.
Certificate of Medical Assessor Jones, 26 April 2017
78.	Medical Assessor Jones issued a certificate dated 26 April 2017. He found no active psychiatric disorder was caused by the accident. He accepted Ms Haddad had some emotional and psychological symptoms consistent with her reported level of pain and her physical limitations. He also noted she experiences anxiety whilst a driver or passenger in a car. 
Dr Alan Home, 6 June 2019
79.	Dr Home, occupational physician assessed Ms Haddad at the request of her lawyers on 
6 June 2019. 
80.	Dr Home reported even though she accompanied her partner to hospital following the accident she was not assessed. She recalled early symptoms in her neck, right shoulder, right hip and right wrist and stated the following day she experienced persistent pain in her neck, right shoulder, lower back and right hip.  Dr Home reported Ms Haddad was taken by ambulance to St George Hospital where she underwent imaging of the right wrist, which was subsequently plastered for three or four weeks.  
81.	The Panel notes the records of St George Hospital do not include an attendance in the days following the accident, or imaging of the right wrist. 
82.	Dr Home reported Ms Haddad recalled subsequent physical therapy at Greenacre commencing a few months after the accident, attendance on Dr Renata Abraszko in respect of her spinal complaints, undergoing a cervical spine injection, undergoing a corticosteroid injection at the right shoulder and subsequent attendances at the Liverpool Pain Clinic.
83.	Dr Home diagnosed a soft tissue injury to the cervical spine and noted non-verifiable radicular complaints in the post-axial border of the right upper limb. He also diagnosed a soft tissue injury to the right shoulder although he observed a full range of active motion of the right shoulder.
84.	Dr Home referred to a “possible fracture” of the right wrist and reported he was able to elicit local tenderness in the region of the mid-carpal at the time of his assessment.  Active range of motion was preserved and there was no joint swelling, effusion or stiffness.  He concluded any previous fracture had healed and that it was probable Ms Haddad had sustained ligamentous injury to the right wrist. 
Report of Dr Thomas Rosenthal, 28 January 2021
85.	The claimant was assessed by Dr Rosenthal at the request of the insurer on 
20 January 2020.
86.	He reported Ms Haddad had constant pain at the back of her right shoulder, a crawling ant feeling in her right hand associated with activity and some difficulty holding things in her right hand.  She had no major pain in her right wrist and neck pain was related more to the right shoulder. He also reported some hip discomfort and some right leg pain at night. 
87.	Dr Rosenthal found no impairment in the claimant’s shoulders and right wrist. He noted the right wrist had a full range of motion with no tenderness. 
88.	Noting the personal injury claim form and medical certificate did not mention injury to the hip and the lack of hip complaint until assessed by Dr Giblin in August 2016 Dr Rosenthal did not accept the hip injuries were causally related to the accident.  
89.	Dr Rosenthal did not think the claimant required any treatment noting the injury to the right shoulder was probably a soft tissue injury and he expected this would have resolved. 
Dr Rosenthal found full range of movement at both shoulders. 
90.	Dr Rosenthal noted an inconsistency with the findings of Medical Assessor Wijetunga noting the injuries that she determined were related, that is neck, back pain and right and left hip do not accord with the certificate provided by Dr Arefeen. 
91.	Dr Rosenthal opined the claimant’s reported disabilities in regard to her neck, back and right hip are unrelated to the motor vehicle accident. He assessed a WPI of 0%.
92.	The claimant has provided a statement dated 18 March 2021 in which she states that 
Dr Rosenthal asked some questions but did not undertake a physical examination at the time of his assessment on 20 January 2021. She stated the consultation took less than 10 minutes in total.  Ms Haddad states she was accompanied by her partner Walid who was present throughout the consultation.  Walid Haddad also provided a statement dated 
18 March 2021 in which he states Dr Rosenthal did not conduct a physical examination of the claimant. 
SUBMISSIONS
Insurer’s submissions 
93.	The insurer provided submissions in support of the application for further assessment following the assessment by Medical Assessor Wijetunga. The insurer sought to rely upon the report of Dr Rosenthal dated 28 January 2021 noting the doctor had reviewed the 2000 odd available pages of medical documents where he was only able to find reference to the accident in the certificate of Dr Arefeen and the reports of Dr Giblin, Dr Home and the certificates of Assessor Jones and Assessor Wijetunga. 
94.	The insurer relied upon the report of Dr Rosenthal to assert there was insufficient information or clinical indication to find there was injury to the right hip caused by the accident. The insurer notes the claim form did not record any injury to the hip. The insurer noted 
Dr Rosenthal found a full range of movement at both shoulders and that any injury to the right shoulder was undoubtedly a soft tissue injury which, in all likelihood would have resolved. The insurer notes Dr Rosenthal found no impairment in the claimant’s shoulders and right wrist and a 0% WPI impairment of the cervical spine and lumbosacral spine.
95.	Significantly, the insurer submits the claimant’s disabilities in regard to the neck, back and right hip are unrelated to the accident.
96.	The insurer also provided submissions dated 27 January 2022, however, these submissions largely address the question to be determined by the delegate of the President in deciding whether the medical assessment of Assessor Moloney was incorrect in a material respect. 
Claimant’s submissions
97.	The claimant provided submissions dated 17 March 2021 in respect of the application for further assessment filed by the insurer following the assessment by Medical Assessor Wijetunja. 
98.	The claimant submitted, in concluding he was only able to find reference to the accident in the certificate of Dr Arefeen, the reports of Dr Giblin, Dr Home and the certificates of Assessor Jones and Assessor Wijetunga Dr Rosenthal failed to note the consultation record of 9 March 2017 in the clinical notes of Primary Physiocare. 
99.	The claimant provided submissions dated 16 December 2021 addressing the test to be applied by the delegate of the President in deciding whether a material error was made by Assessor Moloney in his assessment.  Those submissions in the main addressed the failure of Assessor Moloney to apply the lawful test of causation in determining that injuries to the right hip and to the left hip were not caused by the accident. 
RELEVANT LEGAL AUTHORITY
100.	Causation of injury is addressed in the Guidelines:
“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. 
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: 
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.
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.”
101.	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]:
“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.” 
102.	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]).”
103.	In Norrington Brereton J followed the decision of the Court of Appeal in AAI Limited v McGiffen where the Court stated at [64]:
“The question that the review panel was required to address was not simply whether there was any contemporaneous evidence of complaint about an injury to the lumbar thoracic spine. It included whether Mr McGiffen’s lumbar thoracic spinal injury was causally related to the ‘gait derangement’, itself caused by the accident. That is, was the accident a contributing cause of a lumbar thoracic spinal injury by reason of the gait derangement caused by the accident.”
104.	Even more recently 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 concluded that the question was not whether there was any contemporaneous evidence or corroborative evidence to support the injury but whether the motor vehicle accident materially contributed to that injury. 
EXAMINATION 
105.	On 28 October 2022 the claimant was examined by Medical Assessor Barnsley and Medical Assessor Curtin on behalf of the panel. 
The history of the accident
106.	Ms Haddad said that she was a front seat passenger in a four-wheel-drive driven by her partner. The car was halted in traffic when it was struck from behind by another car which pushed Ms Haddad’s car into the vehicle in front. She said that she was restrained by a seatbelt at the time, and at the initial impact she turned around and reached back with her right hand to protect her two small children who were restrained in child car seats immediately behind her. In the process of reaching back she struck her right hand against an object, but otherwise she was not aware of her head or any other part of the body receiving any direct blow. After the accident she was aware of some pain in her right wrist and in her right shoulder. She also developed some pain in her right hip but was not sure if that was present immediately after the accident, or whether it developed some time later.
Treatment following the accident
107.	Ms Haddad said that her partner was taken by ambulance to the St George hospital following the accident, but that she herself did not need to go to hospital. She said that her local doctor, Dr Arefeen (Isra Medical Services) paid her a home visit later that evening and that she subsequently saw him regularly over the ensuing weeks. Dr Arefeen’s records report that Ms Haddad saw him four days before the accident, but there is no record of any further attendance until six weeks later on 
1 February 2016. Over the ensuing three months there are records of 10 additional visits, but on none of these occasions is there any mention of the accident or any complaints of pain in her right wrist, right shoulder or right hip. Ms Haddad was asked about this lack of documentation and explained that Dr Arefeen liked to “keep it short” and did not always make records of her visits to him. Ms Haddad was asked about her right wrist which she said “clicked” after the accident and was bandaged up by someone. She was not sure whether she had an X-ray. She stated that she was aware that there was no record on her hospital record at St George Hospital nor any Medicare claim for imaging of the right wrist. She explained that “there was a lot going on” around the time of the accident, and that her memory for details from that time was unclear.
Current symptoms
108.	Ms Haddad said that her right shoulder is still painful and there is some associated pain in her neck. She said that her right hip has improved somewhat. She said that her lower back started to become painful about a week after the accident and is still sore. She noticed widespread pain, subsequently diagnosed as fibromyalgia, which developed about five months after the accident, but was only confirmed about two years ago, and that this condition was associated with flareups of pain in her shoulder and back.
Investigations 
109.	Ms Haddad said that since the accident she has had imaging studies of her shoulders, right hip and spine, and that she has recently had a bone density scan carried out. She thinks she may have had a bone scan.
Current treatment
110.	Ms Haddad said that very recently she had started to attend the Southwest Pain Clinic in Camden, where she has consulted Dr Trudi Richmond, pain management specialist. No documents have been sighted in regard to this treatment.
111.	Ms Haddad said that she currently takes Lyrica 150 mg twice-daily, duloxetine and tramadol. On a mobile phone she showed the assessor a prescription for Orphenadrine (a muscle relaxant).
Examination findings 
112.	Ms Haddad was a slim Caucasian lady aged 36 years in Islamic dress. She was slightly overweight with a BMI of 26.6 (160 cm and 68 kg). She was unaccompanied for the assessment and did not bring any imaging records with her. All ranges of movement were determined with a goniometer. 
Lumbar spine
113.	The lumbar spine examination revealed that flexion, extension, left and right lateral, and left and right rotation movements were symmetrical and within the normal range. There was some mild tenderness over the medial glutei on both sides but no guarding or spasm.
114.	She had negative sciatic stretch tests on each side. Power was normal in the lower limbs. Reflexes in the lower limbs (ankle and knee jerks) were symmetrical and normal. There was no loss of sensation in either lower limb. There was no asymmetry of circumference between the lower limbs measured at equivalent positions above and below the knee. 
Cervical spine
115.	Cervical spine examination also revealed symmetrical movements (rotation to left and right 60°, flexion/extension 40° left and right lateral tilt 25°). There was some tenderness in the mid neck on the right side but no guarding or spasm.
116.	Power was normal in the upper limbs. Reflexes in the upper limbs (biceps, triceps and supinator jerks) were symmetrical and normal. There was no loss of sensation in either upper limb. There was no asymmetry of circumference between the upper limbs measured at equivalent positions above and below the elbow. 
Shoulders
117.	The active range of motion, and resulting upper extremity impairment (UEI) are reported in the following table:
 	AMA 4 Figure	AROM 
(degrees)	 	AROM (degrees)	 	
Shoulder Movements	 	RIGHT	UEI (%)	LEFT	UEI (%)	
Flexion	38	170	1	180	0	
Extension	38	50	0	50	0	
Adduction	41	40	0	40	0	
Abduction	41	180	0	180	0	
Internal rotation	44	80	0	80	0	
External Rotation	44	80	0	80	0	
 	 	Total	1	Total	0	
118.	There was a weakly positive impingement sign on the right side, but no crepitus on either side.
Wrists
119.	There was a normal and symmetrical range of motion in the wrists on both sides including flexion, extension ulnar deviation and radial deviation. There was no crepitus or swelling in either wrist. 
120.	Similarly, there was a full range of movement in the hands and elbows with no crepitus or swelling. 
Hips
121.	Trendelenburg sign was negative. When lying supine, active hip flexion on the right side was 90° and 120° of the left side. All other hip movements were normal and symmetrical. However, when seated to replace her footwear she demonstrated an active range of flexion in the right hip of at least 120°. This inconsistency was brought to her attention, and she explained that her hip moves normally when seated but hurts when she lies down flat. She was therefore assessed as having a demonstrably normal active range of motion in the hips. 
122.	Range of movement of both knees and ankles was normal on both sides.
CAUSATION AND INJURY
123.	The Panel carefully reviewed the documentation provided by the parties. The Panel has some concern about the reliability of the claimant’s evidence.  
124.	The only mention of the accident in the treating medical records, apart from the medical certificate accompanying the claim form, is the attendance on 9 March 2017 noted in the Primary Physiocare records. The medical certificate of Dr Arefeen documents the fracture of the right wrist and injury to the right shoulder, even though there is no mention in his clinical notes of either injury or of the claimant’s involvement in the accident.  This is the case notwithstanding regular attendance on medical practitioners for unrelated health issues since the accident. 
125.	In relation to the fracture of the right wrist Assessor Wijetunja and Dr Home reported she was conveyed by ambulance to St George Hospital the day following the accident where she underwent X-rays, the wrist fracture was diagnosed and treated with the use of a plaster cast. Assessor Moloney reported the claimant’s GP attended her home, organized an X-ray of the right wrist disclosing the fracture which was treated by a plaster cast. Dr Yu reported Ms Haddad consulted Dr Hassan at Doctors on Macquarie on 12 January 2016 when she was referred for scans, diagnosed with a fracture and given a plaster to wear.   However, there is no record in the clinical notes of St George Hospital or in the records of Doctors on Macquarie of imaging undertaken of the right wrist and nor is there any record of a consultation in respect of the right wrist.  
126.	The evidence that any of the referred injuries resulted from the motor vehicle accident is thin. Ms Haddad was able to give a clear account of the accident itself, which occurred seven years ago. She was reasonably certain that she experienced soreness in her right wrist and right shoulder immediately after the accident but was much less clear as to when her symptoms of neck, back and hip pain actually developed. She said repeatedly that she was very upset and shocked by the accident and that this made it difficult for her to be completely clear about when these other symptoms developed. 
127.	Her explanation as to why there was no supportive documentation from her GP, was quite unconvincing. Dr Arefeen’s records were all typewritten. He reported nine separate visits in 2015, and 11 separate visits in the four months following the accident, so it is not clear why certain visits would go unreported. Ms Haddad presented with a variety of problems, but on only one occasion, on 22 March 2016 was there a mention of back pain. 
128.	Regarding the wrist injury, Ms Haddad admitted that she thought it was a fracture although she didn’t think the arm was actually broken. The documents do not provide any evidence that she ever had an X-ray taken of the right wrist. 
129.	Although there is no documentary evidence and, keeping in mind the test as defined by Walton J in Kinchela, it does seem likely that she sustained soft tissue injuries to her right wrist and her right shoulder. The circumstances of the accident make it seem likely that she sustained a degree of whiplash injury to her neck as well. Although Ms Haddad appears to have developed some soreness in her right hip at some point after the accident, she was not able to explain how these symptoms were linked to the accident, nor did the circumstances of the accident itself provide any explanation.
130.	Despite the difficulties presented by the lack of documentation and considerable vagueness in the history given by Ms Haddad, she did not present as somebody with any deliberate intent to deceive the assessors. The responses to physical testing were broadly consistent. It did appear that she was somebody who did suffer from chronic pain. 
131.	The panel concluded that the accident did cause soft tissue injuries of the right wrist, right shoulder and cervical spine. The panel found that there was no evidence that the accident resulted in any injury to the lumbar spine, right hip, left hip, right leg or left leg.
ASSESSMENT OF PERMANENT IMPAIRMENT
Cervical spine
132.	Ms Haddad has complaints of cervical spine pain with no dysmetria, guarding, spasm, non-verifiable radicular features or signs of radiculopathy. She therefore meets criteria for DRE I cervicothoracic impairment which attracts a 0% whole person impairment. 
Right shoulder
133.	Ms Haddad has a 1% upper extremity impairment arising from the right shoulder as per the above table. This represents a 1% WPI in accordance with table 3 of the AMA 4 guides.
Right wrist 
134.	Ms Haddad has a full range of motion at the right wrist. There is no evidence of joint or tendon crepitus or synovial hypertrophy (swelling). She therefore has no assessable impairment from the right wrist.
135.	Total WPI is therefore 1%.