AAI Ltd t/as GIO v Pinarbasi
[2025] NSWPICMP 470
•1 July 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | AAI Ltd t/as GIO v Pinarbasi [2025] NSWPICMP 470 |
CLAIMANT: | Pinarbasi |
INSURER: | AAI Ltd t/as GIO |
REVIEW PANEL | |
MEMBER: | Maurice Castagnet |
MEDICAL ASSESSOR: | Dr Les Barnsley |
MEDICAL ASSESSOR: | Dr Mohammed Assem |
DATE OF DECISION: | 1 July 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); claimant suffered injury in a motor accident when the bus he was driving was hit in the rear by another bus; dispute about whether the injuries caused by the accident were threshold injuries; whether the motor accident caused a rotator cuff tear in the right shoulder; mechanism of injury; absence of direct trauma or abnormal shoulder movement; delayed reporting or lack of evidence of early reporting of symptoms in the right shoulder; McTye v Ching Yu Chang by his tutor Leo Alexander Birch considered; Held – MAC revoked; injury to the right shoulder not caused by the motor accident. |
DETERMINATIONS MADE: | 1. Revokes the certificate of Medical Assessor Jonathan Herald dated on 28 April 2022. 2. Certifies that the following injuries caused by the motor accident are threshold injuries for the purposes of the Act: · cervical spine – soft tissue injury, and · lumbar spine – soft tissue injury. 3. Certifies that the injury to the right shoulder – rotator cuff tear, was not caused by the motor accident and a determination of whether it is a threshold injury is not required. |
STATEMENT OF REASONS
INTRODUCTION
The claimant, Ahmet Duran Pinarbasi, was involved in a motor accident on 30 July 2018 when the bus he was driving was rear-ended by another bus, insured by GIO (the insurer).
The claimant claimed that as a result of the accident, he sustained injuries to the neck, lower back and right shoulder. As the accident occurred in the course of his employment, the claimant initially lodged a claim for benefits with his workers compensation insurer, EML.
On 10 September 2019, the claimant decided to make a claim with GIO for statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act). The insurer accepted liability to pay the claimant those benefits for the first 26 weeks.[1]
[1] Sections 3.11 and 3.28 of the MAI Act. For motor accidents occurring on or after 1 April 2023, the period of 26 weeks has been amended to 52 weeks.
Statutory benefits by way of loss of earnings and treatment and care expenses, cease after 26 weeks if “the person’s only injuries resulting from the motor accident were threshold injuries”.[2] An injured person cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were threshold injuries”.[3]
[2] At the time the claim was made, a “threshold injury” was known as a “minor injury”. The MAI Act was amended by the Motor Accident Injuries Amendment Act 2022 to provide that from 1 April 2023, the term “minor injury” is to be expressed as a “threshold injury” and “minor injuries” as “threshold injuries”. The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
[3] Section 4.4 of the MAI Act.
On 12 March 2020, the insurer decided to cease payment of those benefits on the basis that the claimant’s injuries were threshold injuries for the purposes of s 1.6 of the MAI Act. Following an internal review conducted on 12 April 2020, the insurer maintained its decision.
To resolve the dispute, the claimant, on 9 July 2020, made an application for a medical assessment of the matter by the Personal Injury Commission (Commission) pursuant to Division 7.5 of the MAI Act.
According to Schedule 2, cl 2 of the MAI Act, the issue of whether an injury caused by the motor accident is a threshold injury for the purposes of the Act is declared to be a medical assessment matter.
A medical assessment matter is determined in accordance with Division 7.5. This means that the matter is determined at first instance by a Medical Assessor [4] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[4] Section 7.20 of the MAI Act.
MEDICAL ASSESSMENT UNDER REVIEW
The dispute was referred at first instance to Medical Assessor Johathan Herald.
The injuries referred to the Medical Assessor for assessment were an injury to the cervical spine, an injury to the lumbar spine and an injury to the right shoulder.
The Medical Assessor issued a Medical Assessment Certificate on 28 April 2022[5] (the medical assessment) finding that the injuries to the cervical and lumbar spine were soft tissue injuries and therefore threshold injuries and the right shoulder injury was not a threshold injury.
[5] The Panel understands that this was a replacement certificate which was issued to correct an obvious error. It is also not apparent from the information before the Panel why there was a delay between the lodgement of the application for review and the issue of the single Medical Assessor’s certificate.
In making his finding of a non-threshold injury to the right shoulder, the Medical Assessor considered that there were features of a rotator cuff tear identified after the accident in the 2019 ultrasound on a background of no symptoms prior to the accident and symptoms of pain and crepitus when examined by Dr Loefler after the accident.[6]
[6] Page 400 of the claimant’s bundle.
THE REVIEW APPLICATION
On 6 May 2022, pursuant to s 7.26 of the MAI Act, the insurer made an application to the President of the Commission to refer the medical assessment of the Medical Assessor to a review panel for review.
The President’s delegate concluded 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 and accordingly referred the review to a review panel.
The claimant then brought judicial review proceedings in the Supreme Court of New South Wales for review of the delegate’s decision.
On 14 February 2023, Schmidt AJ made an order quashing the delegate’s decision: see Pinarbasi v AAI Ltd t/as GIO [2023 NSWSC 80. Her Honour found that the delegate fell into error by accepting the insurer’s submissions that the assessor had failed to address the “consistent opinions” that other doctors had expressed and on which the insurer had relied, to conclude that this provided the required satisfaction “that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect”.[7]
[7] At [50].
Her Honour said:
“But addressing those consistent opinions was not the assessor’s statutory task in relation to the medical dispute which had arisen to be assessed. As explained in Wingfoot at [47], that task was ‘neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise’.”[8]
[8] At [51].
On 17 February 2023, the insurer renewed its application to the Commission for the medical assessment of the Medical Assessor to be referred to a review panel for review.
On 27 February 2023, a different delegate accepted the application to refer the medical assessment to a review panel for review on the following basis:
“The applicant’s ground for review and particulars outlined in the application relating to failure to provide a clear path of reasoning for the determination of the right shoulder injury, in light of the conflicting medical opinions on causation and information from treating medical practitioners and submissions from the applicant in this respect, satisfies me of reasonable cause to suspect that the medical assessment was incorrect in a material respect.”
There was no challenge to the new delegate’s decision by the claimant and thus the matter was referred to a review panel for review.
The decision in McTye[9]
[9] McTye v Ching Yu Chang by his tutor Leo Alexander Birch [2025] NSWCA 3.
In this matter, the claimant was involved in a motor accident when the bus he was driving (operated by Transit Systems) was rear ended by another bus operated by either Transit Systems or State Transit at the time of the accident.[10]
[10] Page 361 of the claimant’s bundle.
During the course of the assessment on 3 April 2025, the Panel drew the attention of the parties to the decision of the NSW Court of Appeal in McTye which was delivered on
4 February 2025.The Panel expressed the view that, given the circumstances of the accident and the decision in McTye, the determination of the claimant’s claim for damages would fall under the provisions of the Motor Accidents Compensation Act1999 and not the MAI Act.
The Panel therefore invited the parties to make submissions on whether there was any utility in proceeding with the application for review of a threshold injury which in the Panel’s view would only be of relevance to a claim for damages under the MAI Act.
The insurer’s submitted that McTye has not determined whether public buses operated by private bus companies would fall under a “public transport accident” and that it had not determined whether s 4.4 of the MAI Act remains as applicable criteria before quantification of damages if a claim falls under a “public transport accident”. The insurer was of the view that s 4.4 of the MAI Act is applicable even if the claim falls under a “public transport accident”. The insurer submitted that the Panel’s decision on the current threshold injury dispute would provide assistance to the parties as well as review rights which would not otherwise arise without a determination being made. The insurer further submitted that in the event that legislative amendments provide clarification as to the unresolved issues, the Panel’s Certificate would assist the parties progressing the claim in accordance with the guiding principle under s 42 of the Personal Injury Commission Act 2020 (PIC Act).
The claimant submitted that the issue raised was a legal question appropriately left to the Panel’s determination. However, the Panel notes that the invitation to the parties to make submissions on the issue was not for the purpose of assisting the Panel to determine that particular issue or indeed, to determine the application for review. It was merely an invitation for the parties to consider the decision in McTye for themselves and advise whether there was consensus that the provisions of the MAI Act would not apply to this claim.
As there was no consensus on the issue by the parties, the Panel has proceeded to determine the application for review.
CONDUCT OF THE REVIEW
According to s 7.26(5A) of the MAI Act, the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission. On this occasion, the review panel is constituted by Medical Assessor Barnsley, Medical Assessor Assem and Member Castagnet (the Panel).
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.[11]
[11] Section 41(2) of the PIC Act.
Pursuant to Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules), the Panel determines how it conducts and determines the proceedings. The Panel may determine the proceedings solely based on the written application.[12]
[12] Rule 128 of the PIC Rules.
The review is not limited to only that aspect of the assessment that is alleged to be incorrect and is by way of a new assessment of all the matters with which the medical assessment is concerned.[13]
RELEVANT STATUTORY PROVISIONS, LEGAL PRINCIPLES AND GUIDELINES
[13] Section 7.26(6) of the MAI Act.
The MAI Act
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury”. Section 1.6(2) of the Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder.
The Motor Accident Guidelines
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the Act. Version 9.3[14] of the Guidelines relevantly provides:
[14] The Guidelines were updated to Version 9.3 on 6 December 2024.
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a threshold injury. An injury resulting in radiculopathy will not be classified as a threshold injury.
Clause 5.7 of the Guidelines provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
Radiculopathy is defined in cl 5.8 of the Guidelines as follows:
“Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a)loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b)positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c)muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d)muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution.
(e)reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
Neurological symptoms that do not meet the assessment criteria for radiculopathy means that the injury will be assessed as a threshold injury.[15]
Causation of injury
[15] Clause 5.9 of the Guidelines.
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[16]
[16] See s 3B(2) of the Civil Liability Act 2002.
It is convenient to also set out in full the observations made by Wright J in Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372 at [35]:
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of Injury
6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.
This, therefore, involves a medical decision and a non-medical informed judgment.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
MATERIAL BEFORE THE REVIEW PANEL
The claimant filed a paginated and indexed bundle of documents comprising 424 pages (the claimant’s bundle). The insurer filed a paginated and indexed bundle of documents comprising 379 pages (the insurer’s bundle).
The insurer filed clinical records from Mackay Base Hospital, Queensland (61 pages) pursuant to directions issued by the Panel (the insurer’s additional bundle).
SUBMISSIONS
The claimant’s submissions
The claimant says that he started to notice pain and discomfort in the right shoulder shortly after the accident. He was assessed within 12 weeks of the accident by Dr Loefler, on
27 September 2018. Dr Loefler reported “pain in the right shoulder with right shoulder movement as well as crepitus”. The claimant submitted that this description is strongly supportive of there being pathology in the right shoulder after the accident. There is no alternative explanation for the presence of crepitus in that joint and there is no evidence that crepitus could be explained by a neck injury.The claimant submitted that there was no acute injury identified in the MRI scan of the neck which was performed on the adjacent neck area some five weeks earlier. The claimant submitted that there is no other event suggestive of a right shoulder injury between the date of the accident and his attendance on Dr Loefler.
The insurer’s submissions
The insurer submitted that based on the claimant’s pre-accident medical history, the rotator cuff tear in the right shoulder is not causally related to the accident and is due to the claimant’s employment and degenerative conditions. To support this submission, the insurer relied on the opinions of treating doctors and medicolegal consultants.
The insurer referred to treating orthopaedic surgeon, Dr Loefler who said in September 2018, that the claimant’s history of persistent neck and right shoulder pain was consistent with soft tissue injuries as the result of the accident. Treating general practitioner (GP), Dr Antoun who requested and reviewed a right shoulder ultrasound performed in February 2019, took the view that the shoulder pathology was more consistent with the claimant’s driving duties, than the accident. Dr Burrow took the view that there had not been an acute injury to the shoulder in the accident, but that there was a partial cuff tear consistent with a background degenerative condition, referring to a certificate of capacity provided by treating GP, Dr Ma in 2018. Associate Professor Miniter in 2020 referred to Dr Burrow’s opinion about inconsistent behavioural responses during examination of the shoulder and Dr Keller considered there had been a delayed onset of neck and back pain consistent with minor soft tissue strains.
Dr Rosenthal concluded that changes seen in MRI scans were not related to acute trauma caused by the accident and that the reported tear in the shoulder was not caused by the accident.
EVIDENCE BEFORE THE PANEL
The evidence before the Panel may be summarised as follows.
Pre-accident medical records
The clinical notes of Proserpine Hospital, Queensland, recorded that the claimant attended for treatment on 15 July 2013 following a motor accident that day. The emergency department records recorded the following entry:
“[the claimant] presented to the Emergency Department at Proserpine Hospital on 15 July 2013 at 13:10. The presenting problem was single driver involved in MVA. 30km/H zone. Lost control on wet road. Injured right arm trying to control car. Slight deformity to left arm.”
The diagnosis was # Radius – Lower end.”[17]
[17] Page 10 of the insurer’s additional bundle.
The clinical notes of Mackay Base Hospital, Queensland, showed that the claimant attended that hospital for further treatment of his injuries on 27 July 2013. On 28 July 2013, surgery was performed by way of an open reduction of the fracture of the right wrist with internal fixation. He was discharged on 29 July 2013.[18]
[18] Page 32 of the insurer’s additional bundle.
The clinical notes of Mackay Base Hospital showed that an X-ray of the right shoulder was performed on 17 July 2013[19] with the following results:
“No fracture/dislocation visualised. The AC joint is normal.”[20]
[19] It is not clear whether the X-ray was performed at Mackay Base Hospital or Proserpine Hospital.
[20] Page 7 of the insurer’s additional bundle.
On 12 September 2013, the claimant was referred for a MRI of the right shoulder by orthopaedic surgeon, Dr Michael Cheesman on a history of “Painful right shoulder after fall. ? Tendinitis or tear.”[21]
[21] Page 21 of the insurer’s bundle.
An MRI report of the right shoulder dated 16 September 2013 recorded the following findings:
“Minor inferior lipping of the acromion is evident. Bursal thickening is evident. Mild increased T2 signal intensity is demonstrated in the mid supraspinatus tendon at its bursal surface. The tendon appears intact. The subscapularis, infraspinatus and teres minor tendons appear normal.
The findings are consistent with mild bursitis and changes in the mid supraspinatus tendon at its bursal surface suggests tendinopathy. No focal tear is evident. Otherwise normal MRI of the shoulder.”[22]
[22] Page 21 of the insurer’s bundle
The clinical records of the general medical practice, Rockdale Medical Centre recorded the following entries:
(a) on 9 April 2015, there was a consultation with GP Dr Mohsen Gerges for a “right shoulder injury”, and[23]
(b) on 26 June 2015, Dr Gerges referred the claimant for an X-ray of the right wrist.[24]
The claimant’s statement
[23] Page 8 of the insurer’s bundle.
[24] Page 8 of the insurer’s bundle.
In his application for personal injury benefits (claim form) dated 10 September 2019, the claimant described the circumstances of the accident and his injuries in the following terms:
“I was driving MO3793 old low floor Scania; I was going to city with the passenger. I stopped at the bus stop at the emore [sic] rd just passed [sic] stanmore rd towards city. I was full stop [sic] at the bus stop loading and unloading passengers. Sudenly [sic] heard the noise and I checked the write [sic] mirror and saw the bus 2665-ST hit my back. I whiplased [sic] it. Well at that time I wasn’t aware of pain. After I driving [sic] my bus to depot after the Road side officer from my workplace [sic] then I felt pain right lower back and then same night my neck and shoulder start pain [sic] then my manager send [sic] me to the immex centre.” [25]
Post-accident records of Immex Waterloo
[25] Page 361 of the claimant’s bundle.
The clinical records of the general medical practice, Immex Waterloo, recorded the following entries:
(a) On the day of the accident (30 July 2018), there was a consultation with GP Dr William Ma. The claimant reported pain in the lower back on the right side, and it was observed that he had a slight limp. An examination revealed tenderness in the low back/sacroiliac joint on the right side and restricted range of movement. [26]
[26] Pages 94-95 of the claimant’s bundle.
(b) A Workcover NSW certificate of capacity issued by general practitioner, Dr Ma on 30 July 2018 recorded the diagnosis of the injury as follows:
“Right low back/SIJ strain.”[27]
[27] Page 291 of the claimant’s bundle; SIJ refers to the sacroiliac joint.
(c) On 1 August 2018, the claimant consulted GP, Dr Stephen Simmons reporting that he gradually developed stiffness and pain in the cervical spine since the accident. On examination, it was recorded that there was partial restricted range of movement in the cervical spine and the right iliac crest was tender.[28]
[28] Pages 93-94 of the claimant’s bundle.
(d) On 2 August 2018, the claimant consulted Dr Simmons reporting that his lower pain on the right side was worsening.[29] On the same day, a further Workcover NSW certificate of capacity was issued by Dr Ma which recorded that the claimant had low back pain immediately after the accident and subsequently developed neck pain one day later. Dr Ma’s diagnosis of injury was updated as follows:
[29] Page 93 of the claimant’s bundle.
“Right low back/SIJ strain and Cervical spine Musculo ligament injury.”[30]
[30] Page 93 of the claimant’s bundle.
(e) On 2 August 2018, an X-ray of the lumbosacral spine coccyx and pelvis was performed which showed that no acute fractures were detected. There were some degenerative changes at the L3/4 and L4/5 discs as well as hip.[31]
[31] Page 96 of the claimant’s bundle.
(f) On 7 August 2018, the claimant consulted Dr Ma reporting more pain in the neck and “could not move.” The back was feeling slightly better.[32]
[32] Page 92 of the claimant’s bundle.
(g) On 14 August 2018, the claimant consulted Dr Ma reporting that the back was “feeling better but still limping when walking” and with the neck there was “still very constant pain and very restricted ROM.” [33]
[33] Page 92 of the claimant’s bundle.
(h) On 17 August 2018, an MRI Scan of the cervical spine and the lumbar spine was performed which showed features of mild spondylosis of the cervical and lumbar spine with the most significant section of the C3/4 with right sided C4 possible irritation of the C4 nerve root.[34]
[34] Page 20 of the claimant’s bundle.
(i) On 28 August 2018, the claimant consulted Dr Ma reporting that he was feeling better. There was near free range of movement in the neck and back and normal gait. [35]
(j) On 4 September 2018, the claimant consulted Dr Ma and it was recorded that he was “feeling better, good ROM.”[36]
(k) On 11 September 2018, the claimant attended physiotherapy with physiotherapist, Eric Mete. It was recorded that there was slow improvement with the neck and the lumbar spine was “feeling good.” The claimant also consulted Dr Ma on that day reporting that he was feeling better overall.[37]
(l) On 18 September 2018, the claimant consulted Dr Ma and it was recorded that he was “feeling fine with low back, still some pain and stiffness neck.”[38]
(m) On 25 September 2018, the claimant consulted Dr Ma reporting increasing pain in the right side of the neck, upper trapezius and right lower back after driving four hours. The claimant was issued a certificate of capacity for two hours driving and he was referred to orthopaedic surgeon, Dr Andreas Loefler for further management. [39]
(n) The claimant attended further consultations with Dr Ma on 2,12,19 and
26 October 2018 and 2, 9,16, 30 November 2018, reporting ongoing neck and back pain.[40](o) On 3 December 2018, the claimant consulted GP, Dr John Kyriazis. It was reported that after 3.5 hours of driving, he “began to feel too much pain between shoulder blades, right posterior shoulder, states he’s stressed, states he doesn’t feel he can do that much driving.” [41]
(p) On 6 December 2018, the claimant consulted Dr Ma reporting that he had “increasing pain after driving 3.5 hours on Monday.” The claimant was “requesting to avoid old Scania low floor buses because of inadequate seats.”[42]
(q) On 20 December 2018, the claimant attended a case conference with Dr Ma and representatives from his employer and the workers compensation insurer. The claimant reported persistent neck pain, right shoulder/scapular pain and low back pain all made worse with driving.[43]
[35] Page 91 of the claimant’s bundle.
[36] Page 91 of the claimant’s bundle.
[37] Page 90 of the claimant’s bundle.
[38] Page 90 of the claimant’s bundle.
[39] Page 89 of the claimant’s bundle.
[40] Pages 86-90 of the claimant’s bundle.
[41] Page 86 of the claimant’s bundle.
[42] Page 85 of the claimant’s bundle.
[43] Page 66 of the claimant’s bundle.
Dr Loefler
On 27 September 2018, orthopaedic surgeon, Dr Andreas Loefler reported that the claimant had been referred to him for treatment of “persistent neck and right-sided shoulder pain.”[44]
[44] Page 1 of the claimant’s bundle.
Dr Loefler recorded that the claimant reported that on the day of the accident, he had lower back pain and on the following day he also had neck and right-sided shoulder pain.[45]
[45] Page 1 of the claimant’s bundle.
On examination, the claimant demonstrated discomfort at the extremes of flexion and extension as well as rotation on either side. The claimant pointed to pain mainly on the right side of his neck with pain radiating into his right shoulder.
Dr Loefler recorded that the shoulder movements were full, but the claimant complained of pain in his right shoulder with the extremes of shoulder movement. He noted mild crepitus in the right shoulder.[46]
[46] Page 1 of the claimant’s bundle.
The Medical Assessors of the Panel interpose to observe that mild crepitus is a non-specific clinical sign commonly associated with age-related or degenerative changes and is not, in itself, indicative of an acute traumatic injury. The presence of full range of shoulder movement further weighs against the likelihood of significant structural damage at that time.
Dr Loefler was of the opinion that the history of persistent neck and shoulder pain was consistent with soft tissue injuries as a result of the accident.[47]
[47] Page 2 of the claimant’s bundle.
Post-accident records of Corporate Medical Consultants
The clinical records of general medical practice, Corporate Medical Consultants showed that from 17 January 2019, the claimant came under the care of GP, Dr Tony Antoun. In a consultation on that date, the claimant informed Dr Antoun that he was previously under the care of the GP practice, Immex Waterloo and he provided details of the subject accident to Dr Antoun. [48]
[48] Page 200 of the claimant’s bundle.
The claimant reported his current symptoms as right-sided neck pain with no radiation and right shoulder pain on elevation and in the shoulder blade. His back was feeling better with minor lower back tension.[49]
[49] Pages 200-201 of the claimant’s bundle.
The claimant was referred for an ultrasound of the right shoulder which was performed on
8 February 2019. It showed a small partial thickness tear of the right supraspinatus tendon.[50][50] Page 23 of the claimant’s bundle.
At a consultation with the claimant on 12 February 2019, Dr Antoun explained to the claimant that the “tear is not consistent with MVA but inflammation most likely due from job not MVA”.[51]
[51] Page 198 of the claimant’s bundle.
On 13 February 2019, Dr Antoun referred the claimant to sports and exercise physician,
Dr Ameer Ibrahim for further treatment.A certificate of capacity/certificate of fitness[52] issued by GP, Dr Antoun on 10 September 2019 recorded the diagnosis of injury as follows:
“R lumbosacral/SIJ irritation/cervical spine WAD II – levator scapulae/R Shoulder impigment [sic].”[53]
[52] It is not clear whether this certificate was issued as a certificate of capacity for the workers compensation claim or as a certificate of fitness for the motor accident claim.
[53] Page 354 of the claimant’s bundle.
Dr Ibrahim
In a report dated 15 March 2019, sports and exercise physician, Dr Ibrahim stated that the claimant presented with pain in the right shoulder and the cervical spine but the sole purpose of his treatment would be to the right shoulder.[54]
[54] Page 62 of the claimant’s bundle.
Private Losante Children and Adults Hospital (Ankara, Turkey)
Clinical records from the Private Losante Children and Adults Hospital (Ankara, Turkey) showed that the claimant attended for treatment on 20 November 2020, complaining of neck, right shoulder, hip and leg pains on the background of the subject motor accident. [55]
[55] Page 281 of the claimant’s bundle.
A diagnosis of “Cervical Facet syndrome, Lumbar Facet Syndrome and Whiplash Syndrome” was made. [56]
[56] Page 283 of the claimant’s bundle.
The following procedures were undertaken:
· bilateral C2, C3, C4 and C5 Facet nerve blockade;
· cervical epidural block;
· bilateral L3, L4 and L5 Facet nerve blockade;
· bilateral sacroiliac joint blockade;
· caudal block;
· right shoulder suprascapular nerve blockade, and
· 6 trigger point injections in the neck.[57]
Medicolegal evidence
[57] Page 283 of the claimant’s bundle.
Dr Keller
On 19 December 2018, the claimant was assessed by occupational physician, Dr Andrew Keller at the request of the workers compensation insurer, EML. He provided a report dated 24 December 2018.
Dr Keller indicated that the claimant’s complaints at the time of his assessment were intermittent pain in the neck, radiating to the right shoulder, stabbing pain between the shoulder blades and intermittent lower back pain on the right side. On examination, the claimant reported pain and clicking in the right shoulder, but a full symmetrical range of motion was demonstrated in both shoulders.[58]
[58] Pages 48-49 of the insurer’s bundle.
Dr Keller was of the opinion that following the accident, there appears to have been a delayed onset of neck and back pain, consistent with minor soft tissue strains. He said that there was no evidence of any lasting musculoskeletal injuries to the neck, back or right shoulder. Dr Keller indicated that he discussed with Dr Ma the possibility of doing an ultrasound of the right shoulder so that any pathology could be excluded. [59]
[59] Page 51 of the insurer’s bundle.
Dr Tong
On 15 April 2019, the claimant was assessed by rheumatologist, Dr Denise Tong. She provided a report of the same date.
Dr Tong recorded the claimant reported that following the accident, he developed lower back pain localized to the neck, right shoulder and lumbar spine. At the time of the assessment, it was recorded that the claimant complained of neck, lumbar spine and right shoulder pain.[60]
[60] Page 33 of the claimant’s bundle.
On examination, Dr Tong found reduced active range of movement (in forward flexion, extension, abduction, external rotation, internal rotation and abduction) in the right shoulder, reduction of strength due to pain in the right shoulder. [61]
[61] Page 35 of the claimant’s bundle.
Dr Tong was of the opinion that as a consequence of the accident, the claimant had the following injuries:
· cervical spine - C3/4 disc herniation with muscular guarding as a result of whiplash, with non-verifiable radicular symptoms into the right scapula;
· right shoulder – subacromial bursitis and a small partial thickness tear supraspinatus tendon, and
· lumbar spine – L3/4 and L4/5 discovertebral disease exacerbated by whiplash.
It was Dr Tong’s opinion that the injuries were consistent with the mechanism of injuries described. [62]
[62] Page 36 of the claimant’s bundle.
Dr Burrow
On 12 June 2019, the claimant was assessed by orthopaedic surgeon, Dr Gregory Burrow at the request of the workers compensation insurer, EML. He provided a report on the same day. Dr Burrow recorded that the claimant reported that he suffered from neck, right shoulder and back pain after the accident.
Dr Burrow was of the opinion that the motor accident caused an injury to the cervical spine (by way of an aggravation of pre-existing minor cervical spondylosis C3/C4) and to the lumbar spine (by way of an aggravation of pre-existing facet joint degeneration at L5/S1). He was of the opinion that the right shoulder bursitis and partial tear of the supraspinatus were not caused by the accident as there was no evidence that the right shoulder was injured at the time of the accident and that it appears to have become symptomatic subsequently. [63]
[63] Page 35 if the insurer’s bundle.
On 13 February 2020, the claimant was assessed by orthopaedic surgeon, Associate Professor Paul Miniter at the request of EML. He provided a report dated 17 February 2020.
Associate Professor Miniter was of the opinion that based on his examination and review of documentation, that the motor accident may have caused minor and non-lasting injuries to the neck and back and that the late development of right shoulder pain was unrelated to the accident. [64]
[64] Page 45 of the insurer’s bundle.
Dr Rosenthal
On 25 August 2020, the claimant was assessed by occupational physician, Dr Thomas Rosenthal at the request of the insurer. He provided a report on 31 August 2020.
Dr Rosenthal was of the opinion that the motor accident may have caused soft tissue injuries to the neck, back and right shoulder. He believed that none of the changes seen on MRI scans are related to any acute trauma caused by the accident and that the reported supraspinatus tear in the right shoulder was not caused by the accident.[65]
[65] Pages 384 and 387 of the insurer’s bundle.
RE-EXAMINATION
The claimant was examined by Medical Assessor Barnsley and Medical Assessor Assem on 31 October 2023 via audiovisual technology. At that time, the claimant was residing in Turkey. Due to the limitations of the remote consultation, the Medical Assessors found that it was difficult for them to conduct to complete an examination of the cervical spine and lumbar spine. Accordingly, the Panel issued a direction for the claimant present himself for a re-examination in person. That examination took place at the medical suites of the Commission on 17 September 2024.The report of the Medical Assessors of the Panel now follows.
Introduction
The reason for the assessment was explained to the claimant. The claimant was informed that the assessment did not have the same confidentiality as a standard medical consultation and that the Medical Assessors would not be involved in his treatment. The structure of the assessment, including the types of questions that will be asked and the nature of the examination was also explained to the claimant.
Prior medical history
The claimant was asked about his past medical problems. He said that around 2010, he had suffered a fractured right radius and went on to have an open reduction and internal fixation. He was asked about previous injuries to his shoulders, back and neck. He denied any prior problems with low back pain or neck pain. He said that he had a past fall onto his right shoulder and reported that he saw his local doctor “just in case”. He thinks that there might have been some imaging done. He was not sure when that occurred. He explained that the pain had fully resolved.
Immediately prior to the motor accident, the claimant reported feeling well with no musculoskeletal complaints. He said that he was regularly playing touch football and snooker with his work colleagues. He was working as a bus driver, a position he had held for about four and half years.
The motor accident
On 30 July 2018, the claimant was the driver of a bus that was in service and had some passengers on board. He was stationary at a bus stop. He indicated that he was sitting in the normal bus seat of an older style bus. It was equipped with a lap but not a sash belt. He explained that the back of the seat was not particularly high, coming up to his upper thoracic spine.
The claimant explained that another bus was driving down the road and struck the right rear corner of his bus, causing significant damage to the back of his bus. He understands that there was distortion of the chassis in the other vehicle.
The claimant was asked specifically about his movements and in particular those of the right arm and shoulder at the time of the impact. He stated that he recalled being forced backward into the chair. There was no direct impact of the shoulder on any of the internal structures of the bus. He did not hit his head, hand or arm. He was not holding anything in the right hand at the time of the impact. He said that he was reaching for the handbrake to release it before driving off. There were no uncontrolled movements of the right arm.
The claimant checked to make sure that none of the passengers were injured. He said that he asked them twice and his understanding was that nobody else on the bus sustained any injury. Emergency services did not attend. He contacted the depot and arranged for alternative transport for the passengers before returning to the depot within about an hour of the accident.
History of symptoms and treatment
The claimant first experienced symptoms on return to the depot. He said that he had pain on the top of the right shoulder in the region of the acromioclavicular joint. He said that he had pain in the neck on both sides with radiation to the right trapezius. He also described pain at the lumbosacral junction.
The claimant was subsequently seen by GP, Dr Ma later that day. He said he complained of back, neck and right shoulder pain. The Medical Assessors of the Panel informed the claimant that Dr Ma’s clinical records made no mention of any shoulder pain for many visits prior to December 2018, but there were clear references to low back pain on the first day and the development of cervical spine pain and stiffness on 2 August 2018 which were followed up with radiological investigations. In response, the claimant stated that Dr Ma had ignored his complaints of shoulder pain, saying there was nothing wrong, and that Dr Ma had simply completed certificates.
The claimant recalled attending a physiotherapist for his symptoms but said he was just given hot packs and did not consider this was appropriate.
The claimant said that his neck, back and right shoulder symptoms persisted. He was eventually seen by GP, Dr Antoun and a shoulder ultrasound was performed on 8 February 2019. It demonstrated a tendinopathic supraspinatus tendon with a small, intrasubstance partial thickness tear close to the footplate, as well as some subacromial/subdeltoid bursitis.
The claimant was referred to Dr Ameer Ibrahim and he had some injections into the right shoulder. However, he did not find these provided any lasting benefit. It was suggested that he received platelet rich plasma injections but funding for these treatments was denied by the insurer.
The claimant has been troubled by ongoing symptoms. His right shoulder has remained painful. The pain is primarily over the anterior part of the glenohumeral joint. He gets occasional radiation into the right upper arm. He has noted limited movement in the right shoulder. His pain is made worse by any activity and interferes with his sleep. It is aggravated by lifting and carrying.
The claimant complains of persistent neck pain. This stretches along the midline from approximately the C3 spinous process to the C7 spinous process with radiation to the right side and occasional right periscapular pain. He was specifically asked about neurological symptoms or pain radiation in the arms, but other than some aching that he gets in the right fingers related to his past wrist injury, he denied any shooting pain, numbness, tingling or other symptoms that might be construed as radicular complaints.
The claimant complains of persistent low back pain. This is located at the lumbosacral junction with radiation towards the right greater trochanter. He was asked about radiating pain or neurological symptoms in the legs or shooting or burning pain in the legs. He denied these. There was therefore no evidence of any radicular complaint. He denied any radiating or neurological symptoms in his legs and reported no shooting or burning pain, indicating no evidence of radiculopathy.
The claimant is currently residing in Turkey. He has received prolotherapy in Turkey and physiotherapy from a friend who is a physiotherapist. He does self-directed water activities in a swimming pool in his apartment complex. He stated that he has also seen a surgeon and has had an MRI scan of his shoulder in Turkey. However, none of these were available to the Panel. He provided some low-resolution images of some spinal imaging that he received in 2022 which he displayed on his computer for the perusal of the Medical Assessors of the Panel. However, these were not of diagnostic quality and no comment can be made by the Medical Assessors about the material.
The claimant is currently receiving treatment with tramadol, ketoprofen, naproxen, hemp seed oil, capsaicin gel and he is receiving privately organised physiotherapy from a friend in his own home.
Examination
On examination, the claimant was 169cm tall and weighed 89kg. He was wearing a shoulder brace, a lumbar corset brace, a broad lumbar support belt and a right wrist brace. He had a limp when he walked into the examination room.
On examination of the lumbar spine, there was no guarding or spasm in the lumbar musculature. He was tender around the lumbosacral junction. Flexion was restricted to 50% of what was expected, and extension was also restricted to 50% of what was expected. Lateral flexion was normal. Rotation was less to the right than the left. He had complaints of pain on simulated rotation when there was no actual spinal movement.
Lower limb neurological examination revealed straight leg raising of 40° on both sides limited by back pain. He had negative sciatic stretch tests. Power in the lower limbs was normal. He had normal knee jerk and ankle jerk reflexes. Light touch sensation was intact over all dermatomes. There was no asymmetric wasting of the calf or thigh. The maximum calf circumference was 40cm on the right and 39.5cm on the left. Thigh circumference measured 10cm above the upper pole of the patella was 54cm on each side.
In the cervical spine, tenderness was noted over the upper trapezius muscles but there was no guarding or spasm. Flexion and extension were 75% of what would be expected. Right and left rotation were severely restricted to 25% of expected normal range. Lateral flexion was symmetrical at 50% of normal.
Upper limb neurological examination revealed globally reduced power on the right side secondary to shoulder pain. Power on the left side was normal. Reflexes were normal on both sides specifically biceps, triceps and supinator jerks. Light touch sensation was intact over both upper limbs. When measured 10cm above and below the lateral epicondyle, the left upper arm had one-centimetre greater circumference than the right, but the right forearm had 1cm greater circumference than the left.
The left shoulder had a full and painless range of movement.
The right shoulder demonstrated some wasting of the deltoid and was dropped compared to the left shoulder. In the right shoulder flexion was 70°, extension was 30°, abduction 70°, adduction 30° external rotation was 40° and internal rotation was 10°. The movements were limited by shoulder pain and accompanied by pain behaviour. It was noted at other times that he was able to briefly reach behind his back with his right arm although this appeared to be painful.
The inconsistency between his report of immediate shoulder pain and the records of Dr Ma was put to the claimant and his response is detailed above.
The lack of internal rotation on formal examination of the right shoulder, but ability to reach behind his back was also put to the claimant. He explained that he had not reached far behind his back, and it hurt to do so.
CAUSATION AND REASONS
The cervical spine
There is no historical evidence of any radicular complaints or radiculopathy. There is no evidence of any findings of radiculopathy by any of the assessing doctors. The examination by the Medical Assessors on 17 September 2024 did not reveal evidence of radiculopathy, being two of the requisite signs.
The MRI scan of 17 August 2018 is reported as showing a tiny midline annular tear with small anterior endplate osteophytes. The presence of osteophytes indicates a longstanding problem at C4/5 level that this problem at the C4/5 level has been longstanding as these bony protrusions form over months to years rather than days to weeks. The Medical Assessors of the Panel consider that there is direct evidence of degenerative change at this level.
For the mechanism of injury to cause an annular tear requires typically a combination of forceful twisting and flexion. The accident involved a rear-end collision which would primarily have caused an extension injury to the cervical spine. Whiplash injuries due to rear-end collision do have a flexion component and involve abnormal movements between vertebrae.
The Medical Assessors of the Panel considered that the accident would therefore have the potential to cause an annular tear.
The Medical Assessors of the Panel noted that the MRI scan performed within 19 days of the accident displayed no evidence of oedema to suggest recent injury to the ligamentous or disc structures. This would argue against an acute injury. The treating radiologist also concluded that “no MRI evidence of acute injury is detected”. The spinal level, C4/5, was already affected by degenerative changes, which can be complicated by annular fissures. While annular tears are common on MRI scans of asymptomatic individuals and indeed, they may be physiological in the cervical spine, there is no evidence of any pre-existing annular tears.
While noting that the claimant’s pre-existing degenerative condition probably meant that he was more vulnerable to injuries such as annular tears, on the balance of probabilities, and in the absence of signs of acute injury on the MRI scan, the Medical Assessors of the Panel consider the motor accident did not cause the annular tear.
The Panel is satisfied that the claimant sustained a soft tissue injury to the cervical spine caused by the accident. This is a threshold injury.
The lumbar spine
With respect to the lumbar spine, there is no evidence of any partial or complete tear of ligaments, cartilage or tendons. There is no record of any findings to suggest radiculopathy by any of the assessing doctors. The examination by the Medical Assessors of the Panel on 17 September 2024 did not reveal evidence of radiculopathy being two of the requisite signs. The Panel is satisfied that the claimant sustained a soft tissue injury to the lumbar spine caused by the accident. This is a threshold injury.
The right shoulder
The ultrasound scan of the right shoulder performed on 8 February 2019 showed that there was a small partial thickness tear of the supraspinatus tendon on a background of tendinosis/subacromial subdeltoid bursitis.
The mechanism of injury in the accident suggests that there was no direct impact on the shoulder and that in the absence of a sash component to the seat belt there was no direct impact between the shoulder and the seat belt or any restraint that would limit shoulder movement relative to the rest of the body. The Medical Assessors of the Panel noted that the claimant was not holding onto anything with the right arm at the time of impact so there was no traction or compression force applied to the arm. The claimant did not describe any uncontrolled movement of the arm such as being flung forwards or sideways in the course of the accident.
A tendon tear typically results from contraction of the muscle attached to the tendon against resistance. It can also occur by virtue of direct impact, or the limb being forcibly moved passively. There does not appear to be any of these types of insults in the accident as described.
Considering the mechanism of injury, the absence of direct trauma or abnormal shoulder movement, the prior degenerative imaging findings and the claimant’s delayed reporting or lack of evidence of early reporting of symptoms, the Panel accepts on the balance of probabilities that it is unlikely that the motor accident caused a new injury to the right shoulder.
On the available evidence, the Panel is not satisfied that an injury to the right shoulder was caused by the motor accident.
FINDINGS
The Panel conducted a new assessment of all the matters with which the medical assessment is concerned.
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: See Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45] and Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21], and [64].
The Panel adopts the findings of the Medical Assessors of the Panel.
The Panel finds that the soft tissue injuries to the cervical spine and the lumbar spine caused by the motor accident are threshold injuries for the purposes of the MAI Act.
The Panel finds that the injury to the right shoulder - rotator cuff tear, was not caused by the motor accident.
CONCLUSION
Accordingly, for these reasons, the Panel revokes the certificate of Medical Assessor Herald dated 28 April 2022 and issues a replacement certificate which is found at the commencement of these reasons.
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