Allen v Allianz Australia Insurance Ltd

DETERMINATION OF REVIEW PANEL
CITATION:	Allen v Allianz Australia Insurance Ltd [2023] NSWPICMP 493
CLAIMANT:	Jeanette Allen
INSURER:	Allianz Australia Insurance Ltd
REVIEW PANEL
PRINCIPAL MEMBER:	John Harris
MEDICAL ASSESSOR:	Margaret Gibson
MEDICAL ASSESSOR:	Shane Moloney
DATE OF DECISION:	29 September 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; dispute related to whether physical injury was a threshold injury; claimant involved in a motor accident on 13 July 2018 from rear end collision; severe symptoms, surgery discussed, consumption of opioid medication and significant degenerative pathology present prior to motor accident; contemporaneous clinical records showed various injuries consistent with motor accident; claimant did not establish that motor accident aggravated any pre-existing pathology; lumbar spine radiculopathy present prior to motor accident; not satisfied that motor accident caused any increase in radiculopathy; Held – original assessment of threshold injury confirmed.
DETERMINATIONS MADE:	Medical Assessment – Threshold injury Review Panel Assessment of Threshold Injury Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel confirms the certificate dated 26 July 2022.

REASONS

BACKGROUND

Ms Jeanette Allen (the claimant) suffered injury in a motor accident on 13 July 2018 whilst in a stationary vehicle that was rear ended by the insured vehicle[1] (the motor accident) causing a secondary impact to the vehicle in front.
[1] Insurer’s bundle, p 32.
The insurer is liable to pay to Ms Allen any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the motor accident.
The issue presently in dispute is whether the injuries are classified as a “threshold injury” within the meaning of the MAI Act. Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
The following injuries were referred in the medical dispute:[2]
-      cervical spine;
-      lumbar spine;
-      left shoulder, and
-      head.
[2] Claimant’s bundle, p 11.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[3] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[3] Section 7.20 of the MAI Act.
Whether a person has only suffered threshold injuries as a result of a motor vehicle accident affects the entitlement to both statutory benefits and damages. For threshold injuries the entitlement to statutory benefits ceases after either 26 or 52 weeks, depending on the date of injury and the injured person cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were threshold injuries”.[4]
[4] Section 4.4 of the MAI Act.

STATUTORY AMENDMENT

The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on
28 November 2022 with various amendments commencing on 1 April 2023. From
1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.
The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
The original Medical Assessment was issued when the relevant term was “minor injury” which, because of the amendment, is now described as a threshold injury. The submissions and the Medical Assessment used the term minor injury because they were drafted prior to
1 April 2023.

10.For motor accidents occurring on or after 1 April 2023, the entitlement to statutory benefits for a threshold injury have increased from 26 weeks to 52 weeks.
11.Accordingly, an injury which does not fall within the definition of a threshold injury (a non-threshold injury) means that a claimant has an entitlement to claim damages and, subject to other exclusions, receive statutory entitlements beyond either the 26 week or 52-week limitation period.

ORIGINAL MEDICAL ASSESSMENT

The medical dispute was referred to Medical Assessor Cameron who issued a medical assessment certificate dated 26 July 2022[5] (the medical assessment).
[5] Claimant’s bundle, p 5.
Medical Assessor Cameron concluded that Ms Allen sustained soft tissue injuries to the cervical spine, left shoulder and head which are a minor injury for the purposes of the MAI Act. The Medical Assessor concluded that the claimant did not injure the lumbar spine in the motor accident.

THE REVIEW

The application for referral of the medical assessment to a review panel was made by Ms Allen within 28 days after the parties were issued with the original certificate for the medical assessment.
The President’s delegate referred the medical assessment to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[6]
[6] Section 7.26(5) of the MAI Act.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new
review provisions apply.
The review provisions provide[7] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Person Injury Commission (the Commission).
[7] Section 7.26(5A) of the MAI Act.
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.[8]
[8] Section 41(2) of the PIC Act.
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.[9]
[9] Rule 128 of the PIC Rules
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[10]
[10] Section 7.26(6) of the MAI Act.

STATUTORY PROVISIONS

A threshold injury is defined in s 1.6 of the Act and includes a “soft tissue injury” or a “threshold psychological or psychiatric 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 threshold 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.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the 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 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after
1 December 2017. In respect of the medical assessment of whether an injury is a minor injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold 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.”
Clause 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.[11]
[11] Clause 5.9 of the Guidelines.
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[12]

SUBMISSIONS

Claimant’s submissions dated 5 August 2022[13]

[12] See s 3B(2) of the Civil Liability Act 2002.

[13] Claimant’s bundle, p 1.

These submissions were filed seeking leave to review the certificate.
The claimant referred to the left shoulder labral tear evidenced by the opinion of
Dr Mastroianni and the MRI scan dated 28 September 2018 which showed a tear in the labrum.
The claimant submitted that the motor accident materially caused the need for surgery. If the surgery was caused by the accident, then the fact of surgery, by cutting “capsular tissues” meant that the injury was non-minor. The claimant referred to the report of Dr Hugh Jones
who opined that the motor accident had “stirred up” the left shoulder causing significantly more pain and restriction of motion.
The claimant submitted that there was no delay in complaint of lumbar spine symptoms as they were mentioned in a certificate of capacity dated 16 July 2018 which recorded a diagnosis of injury to the lower back.

Insurer’s submissions dated 2 December 2020[14]
[14] Insurer’s bundle, p 3.

The insurer submitted that the claimant suffered a soft tissue injury to the cervical spine and the pathology shown on the scans was pre-existing. It disputed that any neurological signs were caused by the motor accident and otherwise constituted radiculopathy as defined by the MAI Act.
The insurer referred to the nerve conduction study dated 21 February 2020 which identified a mild C6/7 radiculopathy. It submitted that any neurological symptoms do not relate to the accident, do not constitute radiculopathy, and otherwise referred to the opinion of Dr Hyde Page that the motor accident did not aggravate the underlying cervical spondylosis.
The insurer submitted that the claimant did not sustain an acute traumatic structural injury to the lumbar spine and that the scans showed pre-existing pathology. Further the pathology shown in the scan dated 10 March 2020 was not present in the post- accident scans. The insurer otherwise submitted that any neurological complaints were not caused by the motor accident and/or do not constitute radiculopathy.
The insurer submitted that the neurological signs identified by the nerve conduction studies dated 21 February 2020 which showed a right L5 radiculopathy were not caused by the motor accident and otherwise do not constitute radiculopathy. It referred to Dr Hyde Page’s opinion of chronic low back problems, the absence of post-accident complaint and submitted that there was no aggravation of the condition caused by the motor accident.
The insurer submitted that the claimant did not sustain an acute injury to the left shoulder and relied on the opinion of Dr Murry Hyde Page in his report dated 11 November 2020.

Insurer’s submissions dated 24 March 2022[15]

[15] Insurer’s bundle, p 8.

The insurer noted it has received voluminous records showing pre-accident problems which were not disclosed and undermines the claimant’s credit. It noted prior injuries, particularly the motor vehicle accident in 2008 when the claimant sustained a significant lumbar spine injury.
The insurer provided a detailed summary of pre-accident medical conditions. The evidence covered by these submissions is summarised later in these Reasons. It submitted:[16]
“In summary, these records show that the Claimant’s back problems including radiation into the legs pre-existed the subject accident, and the treatment she has had including nerve blocks were planned prior to the accident occurring. They also show significant left shoulder problems with planned arthroscopic release.”
[16] Insurer’s bundle, p 20.
The insurer submitted that Dr Mastroianni did not have the pre-accident clinical file nor relevant pre-accident scans. It also submitted that Dr Mellick had a very limited history and did not have relevant pre-accident reports.
The insurer submitted that there was no closed head injury based on the report to the ambulance officer of no head strike and no loss of consciousness.
The insurer submitted that there was no contemporaneous report of lumbar pain, and the first mention was three months after the injury. It otherwise relied upon the significant pre-existing lumbar problems.
The insurer submitted that there were pre-existing cervical problems and Dr Beer had previously assessed impairment of the neck at 6%. It otherwise submitted that the signs and symptoms do not meet the criteria for radiculopathy.
The insurer submitted that there was a pre-existing left shoulder problem and surgery was organised prior to the motor accident.

MATERIAL BEFORE THE REVIEW PANEL

Pre-accident medical records

Dr Nabavi provided a series of reports between 12 January 2010 and 24 August 2010 in relation to the left knee.[17]
[17] Insurer’s bundle, pp 422-433.
On 2 October 2013 the general practitioner (GP) noted back pain and sciatica and that the claimant was awaiting back surgery with Dr Abraszko.[18] The MRI scan of the lumbar scan was reported as showing “L5/S1 disc protrusion with facet joint disease”.[19]
[18] Insurer’s bundle, p 161.
[19] Insurer’s bundle, p 163.
In March 2014 the GP noted that the claimant had chronic low back pain with sciatica, had seen Dr Abraszko and would like a second opinion.[20]
[20] Insurer’s bundle, p 168.
In July 2014 the claimant reported severe back pain and had seen a surgeon at
[21] Insurer’s bundle, p 176.
St Vincent’s hospital.[21]
On 14 January 2015 the GP noted numbness in the left foot in the second and third toes described as the L5/S1 distribution.[22] Left leg symptoms were reported in March 2015 described in the L5 dermatome.[23]
[22] Insurer’s bundle, p 183.
[23] Insurer’s bundle, p 186.
In March 2015 the claimant reported right sided neck pain. A CT scan of the head and neck showed no abnormality.[24] Neck pain was described over the following month.
[24] Insurer’s bundle, pp 188-189.
On 25 May 2015 the claimant described low back pain radiating down both legs with worse pain in hip.[25]
[25] Insurer’s bundle, p 192.
On 31 October 2015 the GP referred to chronic back pain and the claimant was awaiting back surgery “due to bulging discs with sciatica”.[26] On 12 November 2015 the GP described
[26] Insurer’s bundle, p 202.
[27] Insurer’s bundle, p 203.
[28] Insurer’s bundle, p 208.
the claimant’s back pain as “hideous”.[27] On 28 January 2016 the doctor noted back pain was “flaring up” and had been gradually worse over the past six months.[28]
On 10 February 2016 the doctor noted chronic pain and sciatic right leg pain worse since October.[29] In March 2016 the doctor noted chronic pain syndrome since the motor vehicle accident with consultation with Dr Steele, neurosurgeon.[30]
[29] Insurer’s bundle, p 209.
[30] Insurer’s bundle, p 209.
The notes of the exercise physiologist dated 9 April 2016 referred to a seven-year history of low back pain with “nerve issues” with the right leg and the “left is starting now”.[31]
[31] Insurer’s bundle, p 212.
On 6 May 2016 the claimant presented with a headache caused by work stress, had a general dishevelled appearance and tension in cervical muscles.[32]
[32] Insurer’s bundle, pp 216-7.
In August 2016 the claimant noted she was considering surgery and funding options were discussed.[33]
[33] Insurer’s bundle, p 224.
In November 2016 the claimant reported severe frontal headaches. A CT scan of the brain was reported as normal.[34]
[34] Insurer’s bundle, p 232.
In January 2017 back pain was described as significantly worse, straight leg raising was 30 degrees on the right with altered sensation of the lateral aspect of the foot and weakness in foot dorsi and plantar flexion.[35] A CT scan was reported as showing a disc bulging at L4/5 impinging the right L4 nerve root and significant degenerative changes within the facet joints at L4/5 and L5/S1.[36]
[35] Insurer’s bundle, p 236.
[36] Insurer’s bundle, p 819.
In May 2017 the claimant reported right shoulder impingement.[37]
[37] Insurer’s bundle, p 244.
In June 2017 the GP noted worsening back pain with radiating right leg pain associated with moving house and driving to Dubbo. Numbness in the right heel was in the L5 and S1 dermatomes although the doctor queried whether there was true weakness in the right leg.
Chronic low back pain is referenced in various consultations in the latter part of 2017.[38]
[38] Insurer’s bundle, pp 250-258.
On 19 February 2018 the doctor again noted chronic back pain and discussed the need for the claimant to apply for a S8 prescription.[39] An authority to prescribe a schedule 8 drug was completed.
[39] Insurer’s bundle, p 265.
The bone scan dated 20 February 2018 relevantly showed degenerative arthritis in the shoulders and active facet joint arthritis at L4/5.[40]
[40] Insurer’s bundle, p 821.
On 18 December 2017 the claimant reported restricted left shoulder abduction and flexion. Left shoulder injections were arranged.[41] Ultrasound at that time showed widespread rotator cuff tendinosis without any tear, and acromioclavicular joint osteoarthritis.[42]
[41] Insurer’s bundle, p 259.
[42] Insurer’s bundle, p 866.

The doctor subsequently noted widespread rotator cuff tendinosis in the left shoulder.[43] The injection into the left shoulder occurred on 5 April 2018.[44] In May 2018 the claimant reported increased pain in the left shoulder and an inability to lift her arm.[45]
[43] Insurer’s bundle, p 261.
[44] Insurer’s bundle, p 268.
[45] Insurer’s bundle, p 277.
An MRI scan of the left shoulder dated 21 May 2018 showed partial thickness intrasubstance tearing of supraspinatus, adhesive capsulitis and acromioclavicular joint osteoarthritis.[46]
[46] Insurer’s bundle, p 854.
On 11 April 2018, Dr Laurent Wallace, pain specialist, noted multiple medical problems including low back pain, right side greater then left and shoulder pain. Back pain was described as occasionally radiating to the right leg. The doctor noted that use of Dilaudid was 24 mg per day which was over 100 mg of Morphine placing the claimant at “significant risk of harm”. The doctor noted slightly decreased strength in the right L5 myotome and reduced sensation at L3, L4 and L5.[47]
[47] Insurer’s bundle, p 818.
The MRI scan of the lumbosacral spine dated 23 April 2018 noted a clinical history of low back pain and right sided radicular symptoms. The scan showed bilateral degenerative changes at L4/5, right sided posterolateral disc bulge with mild displacement on the L4 nerve root, bilateral facet arthroplasty at L5/S1 with severe left foraminal stenosis with potential impingement on the left L5 nerve root.[48]
[48] Insurer’s bundle, p 826.
On 12 June 2018 the doctor noted a frozen left shoulder. Recent MRI scan of the left shoulder showed a partial thickness intrasubstance tearing of the supraspinatus.[49] The claimant was referred to a shoulder specialist.[50]
[49] Insurer’s bundle, p 279.
[50] Insurer’s bundle, p 280.
On 25 June 2018, Dr Hugh Jones, orthopaedic surgeon noted a six-month history of insidious onset of left shoulder pain followed by progressive stiffness. Two subacromial steroid injections were not helpful. Recent MRI scan confirmed the presence of a frozen shoulder. The doctor recommended an intra-articular injection and placed the claimant on the waiting list for arthroscopic capsular release. [51]
[51] Insurer’s bundle, p 407.
On 6 July 2018 the GP noted that the claimant had seen a shoulder specialist and was on a waitlist for arthroscopic capsular release.[52]
[52] Insurer’s bundle, p 281.
On 25 June 2018, Dr Whitton, Addiction Medicine Staff Specialist, noted the claimant was looking to have further knee, back and shoulder surgery and did not want to be placed on the Opioid treatment program. The doctor supported Dr Wallace’s program and noted the claimant was not ready to cease Dilaudid or change to another opioid.[53]
[53] Insurer’s bundle, p 815.

Post-accident medical records

The ambulance officer at the scene of the motor accident recorded:[54]
“Driver of stationary vehicle Involved in a 3 car MVA hit from behind by a 5T truck travelling up to Description 50km/h, Secondary impact from 3rd vehicle (truck) -seat belt worn- Nil air bags deployed, nil intrusion into drivers cab. EXAM-HEAD-Pt denies head strike, nil loc, co headache (generalised) , dry mouth, NECK- nil C-Spine tenderness, CHEST-CO pain to lower third of sternum-pain increases with palpation- nil sob-chest clear - L=R, ABDO- soft nt on palpation- nil seat belt contusion- LIMB- CO pain to L humerus/bicep-ability to move arm across chest- nil obvious deformity- NVS Intact, - BACK- tenderness on mobilisation of lower back- good rom to lower limbs nil numbness nil tingling of distal limb- pt self extricated from vehicle-ambulant.”
[54] Claimant’s bundle, p 82.
The cervical spine X-ray at Hospital showed no fracture with mild multi-level degenerative changes.[55]
[55] Insurer’s bundle, p 973.
The claimant attended her GP on 16 July 2018 wearing a sling on the left arm and complaining of pain in the left wrist, left shoulder and sternum.[56] The certificate of capacity recorded soft tissue injury to the left shoulder, left wrist, neck, sternum, low back and anxiety.[57]
[56] Insurer’s bundle, p 137.
[57] Insurer’s bundle, p 1115.
A physiotherapist report dated 25 July 2018 noted pins and needles in the posterior left arm to the fourth and fifth fingers, which was reproduced on mobilisation of the neck.[58] An adequate neurological examination was not conducted due to pain levels although the physiotherapist believed that there was a left sided C8-T1 nerve root irritation.
[58] Insurer’s bundle, p 838.
Physiotherapy notes for late July 2018 showed treatment to the neck, left shoulder, left wrist, sternum and low back.[59]
[59] Insurer’s bundle, p 900.
On 30 July 2018 Dr McCroary noted complaints of pain in the left shoulder, wrist, lower sternum and clavicle.[60] On 14 August 2018 the doctor noted that the left shoulder and sternum were better and wrist pain was improved.[61]
[60] Insurer’s bundle, p 139.
[61] Insurer’s bundle, p 141.
On 6 August 2018 Dr Jones noted that the claimant presented with adhesive capsulitis in the left shoulder which “had been stirred up by the MVA”.[62]
[62] Insurer’s bundle, p 401.
On 22 August 2018 Dr Michelle Penm noted worsening neck and arm pain.[63] This pain was described as “significant” in the consultation with the GP on 30 August 2018.[64]
[63] Insurer’s bundle, p 142.
[64] Insurer’s bundle, p 143.
On 21 September 2018 the GP also referred to pins and needles in the left thumb and little finger since the accident and “also numbness anterior thigh right and back pain”.[65] The certificate of capacity dated 21 September 2018 referred to injuries to the left shoulder, left wrist, neck, sternum, lower back and anxiety.[66]
[65] Insurer’s bundle, p 145.
[66] Insurer’s bundle, p 106.
On 10 October 2018 the GP noted several episodes of urinary incontinence since the accident.[67] On 23 November 2018 the GP recorded new tingling down left groin and plantar aspect of left foot, right leg giving away, intermittent bladder and faecal incontinence.[68]
[67] Insurer’s bundle, p 148.
[68] Insurer’s bundle, p 152.
On 29 November 2018 Dr Jones, orthopaedic surgeon, diagnosed ulnar nerve symptoms associated with cubital tunnel syndrome.[69] The doctor subsequently noted an uncomplicated recovery followed arthroscopic release on 14 December 2018.[70]
[69] Insurer’s bundle, p 398.
[70] Insurer’s bundle, p 377.
On 31 January 2019 the Health Department authorised the prescription of oxycodone oral for a period of six months.[71]
[71] Insurer’s bundle, p 812.
On 28 February 2019, Dr Ralph Mobbs, neurosurgeon, noted ten-year history of back pain for the longstanding L5/S1 facetogenic pain generators. Both back and leg pain were present for a decade. The doctor recommended targeted injections in to the L5/S1 facet joints and, if successful, surgical intervention.[72]
[72] Insurer’s bundle, p 797.
Dr Damodaran, neurosurgeon, provided a report dated 20 September 2019. The doctor recorded a history of significant back and right leg pain since the motor accident. The right leg pain was “consistent with a L5 radiculopathy”. Bladder incontinence issues were noted which may have of longstanding nature. There was no faecal incontinence. Physical examination was limited by pain with straight leg raising reduced on the right side. The doctor opined that there was significant axial pain with no obvious nerve root compressions to explain the right-sided leg pain.[73]
[73] Insurer’s bundle, p 419.
On 30 March 2020 Dr Damodaran noted that the right leg symptoms could “possibly be radicular in nature” but noted the recent imaging did not demonstrate severe nerve compression.[74]
[74] Insurer’s bundle, p 420.
Dr Vishal Patel, neurologist, noted in a report dated 8 November 2019 that back pain was worse since the motor accident with right sided leg pain and gradual decline in bowel and bladder function. The doctor opined:[75]
“Clinically it sounds like right L5/S1 radiculopathy but she has few compounding factors. Her bladder and bowel incontinence are not explained with her neuroimaging with no evidence of cauda equina syndrome or conus compression.”
[75] Insurer’s bundle, p 442,
Dr Patel wished to exclude “local causes” for the bladder/ bowel symptoms and noted feet symptoms raise a peripheral neuropathy. The doctor also noted that the claimant had symptoms of carpal tunnel.
Dr Patel, in a report dated 25 June 2020, noted that the claimant had occasional bladder incontinence, reported bowel incontinence, and advised to perform pelvic floor exercises.[76]
[76] Insurer’s bundle, p 438.
In a report dated 24 June 2020, Dr Laurent Wallace, pain specialist, noted ongoing oxycontin and endone consumption with the aim to reduce medication intake.[77]
[77] Insurer’s bundle, p 780.
In May 2021 Dr Patel noted worsening headaches recommending Botox injections and continuing pelvic floor exercises.[78]
[78] Insurer’s bundle, p 446.
Dr Prashanth Rao, neurosurgeon provided a report dated 26 August 2020.[79] Neurological examination in the upper limbs showed normal and symmetrical power, tone and sensation. Tinnel’s sign was positive on the left side in the cubital and carpal tunnels.
[79] Insurer’s bundle, p 458.
The doctor noted the MRI scan of the cervical spine was worse at C5/6 and lumbar spine particularly worse at L5/S1 with grade 1 spondylolisthesis. Dr Rao opined there was both cervical and lumbar radiculopathy.
Lower limb examination showed provocative test for the sacroiliac joint severe on the right with reduced power and dorsiflexion.
In a report dated 2 February 2021 Dr Rao stated that the back pain had “returned to previous levels”[80] following sacroiliac joint radiofrequency ablation[81] and sacroiliac joint injections.[82]
[80] Insurer’s bundle, p 517.
[81] Insurer’s bundle, p 521.
[82] Insurer’s bundle, p 641.
In a further report dated 12 April 2021 Dr Rao noted worsening back and leg pain (right worse than left). The doctor recommended a L4-S1 fusion.[83]
[83] Insurer’s bundle, p 519.

Qualified opinions

Dr Thomas Mastroianni, occupational physician, was qualified by the claimant and provided a report dated 23 September 2020.[84] The doctor obtained a history of neck pain and left arm symptoms following the motor accident.
[84] Claimant’s bundle, p 13.
Past history included motor vehicle accident around 2008 causing a fractured T5 and disc bulging at L4-5 with chronic back pain but “no leg symptoms”.
Dr Mastroianni concluded that the motor accident caused an aggravation of cervical spondylosis with left arm radicular symptoms that did not meet the criteria of radiculopathy. Further injuries included left shoulder tendinitis and chronic low back pain secondary to lumbosacral disc disruption and spondylosis.
Dr Ross Mellick, neurologist, was qualified by the claimant and provided a report dated 13 September 2021.[85] The doctor recorded a history of severe pain in the chest, neck and left arm and the teeth “clashing together because of the force of the impact”. Ongoing symptoms included the left shoulder which “became a frozen shoulder”.
[85] Claimant’s bundle, p 24.
Dr Mellick opined that the claimant suffered injury to the cervical and lumbar spine and left shoulder. The low back pain has progressed with time associated with sensory loss, perineal sensory abnormality and referred symptoms in a radicular distribution.
Dr Murray Hyde Page, orthopaedic surgeon, was qualified by the insurer and provided a report dated 11 November 2020.[86] The doctor provided a “file review”. The doctor’s opinion was:[87]
“Overall it would appear that Jeanette Allen, who is 58 years of age, was involved in a low to moderate rear end motor vehicle accident on 13 July 2018. She aggravated a pre-existent frozen left shoulder and suffered minor injuries to her left arm where there was no fracture in her wrist or arm. She did aggravate underlying cervical spondylitis as a result of the motor vehicle accident. I am not satisfied that she aggravated her pre-existent painful lumbar spondylitis which had been investigated with an MRI scan before the motor vehicle accident. Her persistent low back pain was only noted in October 2018 some months later and appears to be due to this pre-existent condition rather than from any aggravation in the motor vehicle accident.”
[86] Insurer’s bundle, p 923.
[87] Insurer’s bundle, p 926.
The doctor observed that the labrum tear was only described as “possible” and that a low to moderate rear end collision was highly unlikely to cause a labral tear. This was even less likely in a shoulder already frozen at the time of the accident.

Radiology

The x-rays of the chest, sternum and left wrist dated 2 August 2018 showed no acute pathology.[88]
[88] Insurer’s bundle, p 96.
The MRI of the left shoulder dated 26 September 2018[89] showed osteoarthritic changes in the acromioclavicular joint, low-grade tendinosis in the supraspinatus, degeneration in the superior labrum which appeared frayed, and features of synovitis along the rotator interval and thickening in the glenohumeral capsule in keeping with adhesive capsulitis. The radiologist concluded there was glenoid retroversion with a tear of the posterior labrum.
[89] Insurer’s bundle, p 94.
The MRI scan of the cervical spine dated 5 October 2018[90] showed moderate degenerative disease of the cervical spine with disc osteophyte complexes causing moderate canal narrowing at multiple levels including at C4/5 and C6/7.
[90] Insurer’s bundle, p 92.
Nerve conduction studies dated 3 December 2018 were reported as normal with a mild left C6/7 radiculopathy.[91]
[91] Insurer’s bundle, p 415.
MRI scan of the lumbar spine dated 13 September 2019 noted clinical history of incontinence and loss of anal sensation. Findings showed stable multilevel degenerative changes particularly at L5/S1[92] and noted that the abutment of the left L5 nerve root was “again visualized and remains as before”.
[92] Insurer’s bundle, p 492.
Bone scan dated 25 October 2019 showed active facet joint arthritis on the left at L5/S1 and on the right at L4/5 and L5/S1.[93]
[93] Insurer’s bundle, p 490.
The MRI scan of the lumbar spine dated 10 March 2020 showed a mild broad herniation at L5/S1 with facet joint osteoarthritis and a broad right foraminal herniation at L4/5 “just” contacting the L4 nerve root.[94]
[94] Insurer’s bundle, p 436.
The MRI scan of the brain dated 17 March 2020 was normal. The MRI scan of the cervical spine dated 17 March 2020 showed degenerative changes at multiple levels particularly at C5/6.[95]
[95] Insurer’s bundle, p 483.
Nerve conduction studies dated 21 February 2020 showed bilateral median nerve neuropathy suggestive of carpal tunnel.[96]
[96] Insurer’s bundle, p 448.
Nerve conduction studies dated 25 August 2020 reported neurogenic changes predominantly in right C5/6 and mild at right C8/T1.[97]
[97] Insurer’s bundle, p 462.
The MRI scan of the lumbar spine dated 1 April 2021 showed no lesion in the cauda equina or distal cord and facet joint degeneration maximum at L5/S1 level with foraminal narrowing at L5/S1 on the left side.[98]
[98] Insurer’s bundle, p 531.

Other records

The workplace incident statement dated 17 July 2018 provided the following version of the accident:[99]
“I felt a severe jolt to my car … I looked in the rear-view mirror and could see a pantec truck had hit the rear of my vehicle…. Upon impact I felt my teeth hit together as my head snapped forward, I also felt instant pain in my left hand from my fingers to my shoulder. I had both hands firmly gripped to the steering wheel upon impact. I then felt intense pain to my sternum and felt chest pain and heart palpitations and shortness of breath.”
[99] Insurer’s bundle, p 933.
A claim form dated 17 July 2018 referred to the accident when the claimant suffered injuries to the left shoulder, left wrist, sternum, neck and lower back. [100]
[100] Insurer’s bundle, p 930.
The claim form dated 9 October 2018 records the claimant’s version of what was injured. Ms Allen stated:[101]
“Upon impact my head went forward and my teeth hit. I was holding the steering wheel at the time and I also felt immediate pain shoot down my left arm. I also experienced severe chest pain.
[101] Insurer’s bundle, p 32.

RE-EXAMINATION

Ms Allen was re-examined by Medical Assessor Gibson on 8 September 2022.
The re-examination report is as follows:
“Ms Allen attended for the assessment. Her husband remained in the waiting room while the examination was conducted.
Ms Allen initially volunteered that she was confused regarding the minor injury process and ’how it works’ in the context of the concept of eggshell skull.’ I explained as best I could from the medical perspective.
Pre- Accident Medical History
There was a past history of hypertension, low back pain, Hashimoto's thyroiditis, osteoarthritis and impaired glucose tolerance.
The arthritis affects feet, fingers, neck and low back. She said that prior to the accident she was taking Capadex and Dilaudid (2mg tablets).
There had been a previous motor vehicle accident - around 2011/13 – when she sustained a T5 fracture and a neck injury.
She said that prior to the subject accident her neck was ’okay’ apart from being stiff at times, for example if she used the wrong pillow at night, but that it ‘didn't impact my life.’
She agreed that she had visited orthopaedic surgeon, Dr Nabavi regarding a left knee injury following a fall in a Coles store. However, she denied having made any claim for this injury, but she noted her knee was ‘not great’ as she was getting older.
When asked her about the general practitioner records referring to a frozen shoulder leading up to the subject accident, she acknowledged this was the case. However, she said these shoulder symptoms were not very severe or significant, and as such were not impacting her everyday life.
She did agree that she had had some low back pain prior to the subject accident and that surgery had been suggested. She said the decision to proceed had been left up to her, and at that stage her symptoms were not severe enough. And they were between health insurers.
She said that prior to the subject accident she used to cope with life and was working on a full-time basis. The low back pain had at times been exacerbated if she was driving for four hours or on her feet for several hours. However, since the subject accident the pain has become ‘so much worse’ and is now constant. She said even if she drives a short distance to the office she is "almost screaming” in pain.
Prior to the accident, the left shoulder symptoms were only evident at night. She could do her hair and put on a bra. She said the symptoms were ‘annoying but never debilitating.’
In relation to the neck, it ‘didn't bother me all that much.’
Relevant Personal Details
Ms Allen advised that she and her husband had recently moved to a smaller home as they "couldn't look after the big house." She said that although they still have four bedrooms, the rooms are much smaller in size. The size of the house has gone from 44 squares to 25 squares. The yard is also smaller. Both the previous house and the current house are single storey. She said they have added railings in the bathroom and extra-high toilets.
In relation to chores around the house, she said she "doesn’t do that much these days". She does do some light dusting and cleaning and some cooking. She shops online as she has difficulty pushing a shopping trolley or walking any distance as this causes increasing back and leg pain.
She added that her husband had a work-related accident 18 months ago and has had some surgery. His workers' compensation insurer has been paying for them to have a house cleaner visit on a fortnightly basis and a lawn maintenance contractor for the last 12 months.
Ms Allen had been as a sales representative for disability bathroom products at the time of the accident, working 9am to 5pm five days a week. She was working from an office, and she was on the road a fair bit of the time.
She said that since the subject accident she has been working from home. She couldn’t recall when she had actually returned to work but agreed that she had upgraded to full normal hours by August 2018. She said that her husband used to assist with her with self-care following the subject accident, but he now has his own difficulties. She said she has adapted by wearing slip-on shoes and choosing clothing that is less difficult to put on.
CURRENT TREATMENT
Ms Allen said she commenced Endone following the subject accident. This was prescribed by Dr Wallace, pain physician, to replace the Dilaudid. Currently, she takes two 5mg Endone tablets at night. She has been taking codeine 60mg three times a day for the last 12 months. She has been taking Lyrica since the subject accident, 100mg in the morning and midday and 200-300mg at night.
She said none of her current medications were being taken prior to the subject accident.
CURRENT COMPLAINTS
Ms Allen reported that the neck pain is there most of the time, averaging 6/10 severity and today 8/10 severity (zero being no pain and 10 being worst pain). She added that they had spent last night in a hotel, due to the long drive from home for the appointment, and she had not brought her pillow, so was feeling particularly uncomfortable.
She added that the neck pain used to radiate into her left arm but this hasn’t been an issue for 18 months to 2 years. However, it does extend up toward the back of her head precipitating headaches. She would experience a headache 2-3 times a month and it can last for several days. She was prescribed Maxalt wafer by Dr Patel, neurologist, some years ago, and the medication had been "lifesaving." She had also had Botox injections for the headache with some improvement. She said that because her headaches were accompanied by nausea and visual disturbance, migraine had been diagnosed.
On specific questioning, she said she had episodic migraine prior to the accident with a frequency of about twice per year.
The low back pain is constant, averaging 6-7/10, today 9/10 severity, and felt in the midline, radiating toward the pelvis and to both legs and feet as a burning sensation. The pain extends to the buttock, outer thigh, back of knee, calf and the soles of both feet.
HISTORY OF THE SUBJECT ACCIDENT
Ms Allen had been driving with her seat belt fastened. She was on her way to the office for a meeting. She was stationary, waiting to move into a parking spot when she was hit from behind by a large truck. Another truck had collided into the back of the original truck, and so there were two separate impacts.
She said she had been holding the steering wheel at the time and was quite relaxed and unprepared. The first thing she noticed was the glass on the back window of her car shattering. She said her head was thrown forward and her teeth hit together but her body made no direct impact with the inside of the car and there was no head strike.
There was no front-end impact and no air bag deployment.
When asked how she felt she had injured her shoulder with the impact, she inferred that this had been the result of the force of the impact being transferred up to the shoulder as she was holding the steering wheel. She went on to describe that the initial pain had been in the fingers of left hand, extending up her left arm and into the left side of her chest. She said initially she tried to get out of the car, told not to move.
She had been transferred to Prince of Wales Hospital by ambulance and she remained there for about 12 hours. At the hospital she had CT studies of her neck and low back, and ECG and bloods to exclude cardiac issues. There was no imaging of her shoulder.
She visited her regular general practitioner on the Monday after the accident which was when she was referred for imaging of her shoulder and chest and possibly her back.
She was later referred to orthopaedic shoulder surgeon, Dr Hugh Jones. She recalls seeing him prior to the subject accident, and there being discussion regarding arthroscopic shoulder surgery, but at that time they had changed health fund providers, so she didn’t proceed.
She had visited Dr Jones again in December 2018 and in December 2019 he performed arthroscopic surgery to the shoulder. She said this had been paid by the workers' compensation insurer, EML.
She said the CTP insurer had taken some time, almost 7 months, to admit liability, as there was some dispute regarding which truck had been at fault.
She said her car had been repaired but she has changed over now although to a similar type of vehicle.
PHYSICAL EXAMINATION
Ms Allen was 153cm tall. She weighed 93kg. She had a slow gait. She had nonpitting oedema of both lower limbs particularly around the ankles. She attributed this to her hypertension and noted the general practitioner had discussed diuretics and added that the recent house move may have increased the swelling.
On examination of the neck, there was tenderness particularly over the lower cervical vertebrae. Flexion and extension were to half normal, lateral flexion two-thirds normal and rotation half normal bilaterally. There was no muscle spasm or guarding, and no asymmetry of movements. Neurotension signs were negative.
On examination of the upper limbs, circumferential measurements of the upper limbs were consistent with right hand dominance, 36cm on the right, 35cm on the left, forearms 29cm on the right, 28cm on the left. Upper limb reflexes were present and symmetrical. There was generalised pain related giving way, but no asymmetrical or radicular weakness. There were variable sensory changes over the entire left upper limb and a "prickly" sensation over the entire right upper limb, but no radicular distribution was identified.
On examination of the shoulders, right shoulder movements were normal range, left shoulder movements were reduced and did not change on repetition. Active shoulder movements were as follows:

Shoulder Movements
Active ROM Measured

RIGHT
Active ROM Measured
LEFT

Flexion 180 ° 90 °

Extension 50 ° 60 °

Internal Rotation 80 ° 70 °

External Rotation 80 ° 60 °

Abduction 180 ° 90 °

Adduction 50 ° 30 °

On examination of the back, there was tenderness over the lower lumbar vertebrae and extending across the back. Flexion was half normal and extension one-third normal, the latter with some muscle spasm on extension. Lateral flexion was to two-thirds normal bilaterally, rotation was to half normal bilaterally.
On examination of the lower limbs, reflexes were generally depressed but nevertheless symmetrical. She added that her left knee was uncomfortable, due to the arthritis and there had been discussion regarding her undergoing total knee replacement. Lower limb power was symmetrically reduced due to back pain. There was normal sensation in the right lower limb but globally reduced sensation over the entire right lower limb. Neurotension signs were negative bilaterally.
CONCLUSION
Ms Allen had sustained a soft tissue injury to her head and neck, left shoulder and low back.
Based on the clinical examination, there was no evidence of radiculopathy of either upper or lower limbs.”

FINDINGS

The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to the injuries sustained in the motor accident were threshold or not threshold injuries as defined under the MAI Act.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[102] and Insurance Australia Ltd v Marsh.[103]
[102] [2021] NSWCA 287 at [40], [41] and [45].
[103] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the reasoning in David v Allianz Australia Ltd[104] that radiculopathy can be present at any time to establish that the injury is not a threshold injury for the purposes of the MAI Act.
[104] [2021] NSWPICMP 227 at [84] – [104].
We adopt the reasoning in Lynch v AAI Ltd[105] that the claimant bears the onus of proof in establishing that any injury is not a threshold injury for the purposes of the MAI Act. That conclusion is consistent with the observations in Briggs v IAG Ltd (No 2)[106]:
“The second review panel did not address the question of whether on the balance of probabilities the motor vehicle accident caused the annular tear even though there might be no scientific certainty.”
[105] [2022] NSWPICMP 6 at [44] – [62].
[106] [2022] NSWSC 372 (Briggs (No 2)) at [73].
The Panel adopts the examination report of Medical Assessor Gibson and adds the following reasons.
The body parts alleged to be injured are set out earlier in these Reasons. The insurer provided detailed submissions and forwarded extensive material on other body parts that were not alleged to be injured. No proper submission was made by the insurer why the material on the other body parts was relevant to our determination.

Head injury

The Panel does not accept that there was a head injury. The claimant did not describe a head injury to the ambulance officers and there was no loss of consciousness.
The descriptions of injuries in the claim forms prepared by the claimant do not describe the head impacting anything during the motor accident.
The claimant reported to Medical Assessor Cameron and Medical Assessor Gibson that she did not hit the head on the steering wheel in the motor accident. Given the minor nature of the collision restrained by her seatbelt, there is otherwise no plausible reason why the claimant would have hit her head.
The claimant complained of headaches before and after the motor accident including a history of migraines. Some of these symptoms were related to her psychological condition. Post-accident headaches are explained by the claimant’s ongoing physical symptoms particular the injury to the cervical spine and her ongoing psychological condition.
There is no medical basis based on the absence of head impact that that the motor accident could have caused a head injury.

Low back injury

The claimant had an extensive pre-accident low back condition and significant prior right sided sciatica. We have earlier set out a reasonable summary of the pre-accident condition.
The motor accident involved a low rear end collision where the back is protected by the seat.
The claimant complained of low back symptoms immediately following the motor accident. The insurer’s submission that there was a three-month delay in the complaint of back symptoms is simply incorrect. That submission should not have been made despite Dr Hyde Park suggesting it. The doctor obviously did not consider all relevant material when providing that opinion.
The claimant’s pre-accident lumbar spine condition was chronic and severe. She was consuming 24 mg of Dilaudid per day which was over 100 mg of Morphine. Lumbar spine surgery had been discussed. At one time the GP described the lumbar spine condition as “hideous”.
The insurer correctly submitted that the reports relied upon by claimant did not contain an adequate history. Given that the claimant’s pre-accident back condition was so severe and chronic, the absence of a proper history undercuts the value of the opinion as it is not based on a fair climate.[107]
[107] See Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; Booth v Fourmeninapub Pty Ltd [2020] NSWCA 57 at [14].
We accept, given the contemporaneous complaints, that there was probably a mild increase in what was otherwise severe symptomatology. It is difficult to be precise as to the extent of any exacerbation given the chronic and severe nature of reported back symptoms. Whilst the claimant’s underlying condition is more susceptible to aggravation (part of the eggshell skull principle), the accident was of relatively low magnitude and the low back is adequately protected by the seat.
We could not identify any relevant change in pathology between the pre and post-accident scans and the claimant’s submissions did not particularise any relevant change. The complaints of an increase in symptoms must be viewed in light of the pre-accident complaints which included descriptions such as “hideous”. It is likely that the motor accident caused a temporary increase in pain symptoms which resolved and returned to pre-accident levels. We consider the nature of the accident probably involved a temporary increase of pain over a short period of three months or so. By February 2021 Dr Rao noted that back pain had returned to pre-accident levels.
The bowel and bladder symptoms as Dr Patel correctly observed, are otherwise not explained by the scan pathology.
There are recurrent references both pre and post-accident to radicular signs which is not evidence of radiculopathy as defined in the Guidelines.
Whilst the submissions on this point were of limited assistance, there are some references to signs of radiculopathy such as in the report of Dr Rao in August 2020 which noted that the provocative test for the sacroiliac joint was severe on the right with reduced power and dorsiflexion.
However, true radiculopathy was identified by Dr Wallace three months prior to the motor accident.[108] In June 2018 Dr Whitton otherwise noted that the claimant was keen to undergo back surgery and did not wish to reduce opioid intake.[109]
[108] See [67] herein.
[109] See [72] herein.
The Panel, using their clinical expertise, view the 2018 lumbar MRI scan as comparable with the 2019 lumbar MRI scan.[110]
[110] See [68] and [109] herein.
Based on these matters we are not satisfied, that the motor accident caused any deterioration in pathology. Accordingly, we do not accept that there as traumatic injury involving an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage in the low back caused by the motor accident.
We are otherwise not satisfied that the motor accident caused any increase in radiculopathy that was present prior to the motor accident.

Cervical spine injury

We accept that the claimant sustained a soft tissue injury to the cervical spine evidenced by the contemporaneous complaints, the nature of the motor accident and the claimant’s history. The nature of the motor accident was likely to have caused a whiplash injury to the cervical spine which explained the immediate complaints of neck pain.
The recorded histories show previous cervical spine problems although there were no recorded complaints in the recent period preceding the motor accident.
The cervical spine X-ray taken at hospital following the accident showed mild multi-level degenerative changes. The MRI scan of the cervical spine dated 17 March 2020 showed degenerative changes at multiple levels particularly at C5/6.
However, the various scans, clinical findings and various medical opinion does not support a finding that the motor accident caused a traumatic injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage. It is medically plausible and likely given the nature of the symptoms that the motor accident aggravated the pre-existing degenerative changes in the cervical spine. That is a threshold injury as defined.
There are no recorded observations of two signs of radiculopathy as defined in cl 5.8 of the Guidelines. The clinical notes refer to radicular pain including numbness in the right hand. However, these are not signs of radiculopathy as defined because they are not described as relating to a specific dermatome and radicular pain is not a sign of radiculopathy.
Based on the examination findings of Medical Assessor Gibson, Ms Allen did not have radiculopathy at the recent examination.
For these reasons we conclude that Ms Allen has not satisfied, at any time, two clinical signs of radiculopathy pursuant to the Guidelines.

Left shoulder

The claimant had an extensive pre-existing left shoulder symptoms including a frozen shoulder.
Surgery for the frozen left shoulder was discussed prior to the motor accident.
[111] Insurer’s bundle, p 407.
On 25 June 2018, Dr Hugh Jones, orthopaedic surgeon noted that two subacromial steroid injections were not helpful, recommended an intra-articular injection and placed the claimant on the waiting list for arthroscopic capsular release.[111]
The claimant alleges that the left shoulder labral tear was caused or aggravated by the motor accident.
There was a contemporaneous complaint of left shoulder problems following the motor accident. However, that is in the context of a history of chronic left shoulder problems with the claimant awaiting surgery.
The claimant had a prior frozen shoulder and reported in May 2018 an inability to lift her arm. In those circumstances it is difficult to understand Dr Jones’ opinion that the motor accident caused a further decrease in movement. If there was a further decrease in movement, it must have been minor given the severity of the prior symptoms.
Further, in early August 2018 the GP noted an improvement in left shoulder movement.
Dr Mastroianni referred to the MRI left shoulder arthrogram and opined that it showed a glenoid retroversion with a tear of the posterior labrum. He stated that he did not review the X-rays. Later in his report he stated that the labral tear does not fit within the definition of minor injury. No explanation was provided by Dr Mastroianni as to how the labral tear was caused or aggravated by the motor accident.
The relevant findings by the radiologist in the scan dated 26 September 2018 were:[112]
“The long head of the biceps tendon is normally located and intact. There is degeneration of the superior labrum which appears frayed and of altered signal. Although no definite contrast cleft is seen, there is a suspected small tear at its base. There is glenoid retroversion and the posterior labrum is generally hypertrophic in keeping with chronic impingement in this area. There is a cleft of contrast which extends along its base mostly posteroinferiorly in keeping with the presence of a tear. The subchondral plate along the glenoid posteriorly is irregular and slightly decompressed. The articular cartilage however appears maintained.”
[112] Insurer’s bundle, p 94.
The radiologist opinion shows that the labral tear is present amongst significant degenerative features. A labral tear is entirely consistent with what is shown on the prior scan.
The claimant was driving the driver of the motor vehicle. In those circumstances there could be no seatbelt injury to the left shoulder.
It is difficult to envisage how the left shoulder was injured in the motor accident. The claimant’s opinion that the left shoulder was injured by her holding the steering wheel has no evidentiary value. There would have been minimal if any forces imposed on the shoulder by the claimant holding the steering wheel from a modest rear end collision.
We observe that an MRI arthrogram is different from an MRI scan as the arthrogram shows leakage of the dye. The partial labral tear may have been present and not seen on the prior MRI scan.
We otherwise agree with Dr Hyde Page’s opinion that a low to moderate rear end collision was highly unlikely to cause a labral tear which was even less likely in a shoulder already frozen at the time of the accident.
We consider it extremely unlikely that the motor accident caused or aggravated the labral tear.
It is otherwise doubtful, as the claimant submitted, that the fact that the motor accident had caused the need for surgery which involved cutting of “capsular tissue” (the latter point being undoubtedly correct) that the injury was a non-threshold injury: see the discussion in Mandoukas v Allianz Australia Insurance Ltd.[113]
[113] [2023] NSSC 1023 at [93].
The claimant was set to undergo surgery for a pre-existing shoulder condition. The motor accident caused no relevant need for the surgery and did not bring it forward.
It is plausible that the jolt stirred up some pain in a shoulder in the context of a condition that was debilitating and required surgery. However, we are not satisfied that the motor accident caused or aggravated any pathology including the labral tear.

Other injuries

There is a suggestion in the medical reports of injury to the right shoulder and thoracic spine.
There is no contemporaneous complaint of injury to these body parts. An absence of complaint is relevant but not determinative of the issue of causation: Norrington v QBE Insurance (Australia) Ltd[114]; AAI Ltd v McGiffen.[115]
[114] [2021] NSWSC 548 (Norrington).
[115] [2016] NSWCA 229 at [64]-[66].
The claimant did not assert that she injured these body parts in her statements. An inclusion of injury in the claim form is relevant to establishing causation: Bugat v Fox[116]. Similarly, the omission of any reference to a body part must also be relevant, but not determinative, of the causation issue.
[116] [2014] NSWSC 888 at [31]-[32].
We are not satisfied that that is any basis to conclude that the motor accident caused a non-threshold injury to the right shoulder or thoracic spine.

CONCLUSION

For these reasons the Panel concludes that the certificate issued by Medical Assessor Cameron is confirmed.

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	180 °	90 °
Extension	50 °	60 °
Internal Rotation	80 °	70 °
External Rotation	80 °	60 °
Abduction	180 °	90 °
Adduction	50 °	30 °

[2023] NSWPICMP 493

29 September 2023