Allianz Australia Insurance Limited v Chau

[2025] NSWPICMP 573

DETERMINATION OF REVIEW PANEL

CITATION:

Allianz Australia Insurance Limited v Chau [2025] NSWPICMP 573

CLAIMANT:

Thuy Lan Trinh Chau

INSURER:

Allianz Australia Insurance Limited

REVIEW PANEL

MEMBER:

Gary Victor Patterson

MEDICAL ASSESSOR:

Christopher Oates

MEDICAL ASSESSOR:

Les Barnsley

DATE OF DECISION:

6 August 2025

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); assessment of threshold injury; insurer sought a review under section 7.26; claimant was the driver travelling at about 40 km/h; Held – Medical Assessor (MA) found that a soft tissue injury to the lumbar spine is a threshold injury; Review Panel finds that the soft tissue injury incorporates an annular fissure of the L5/S1 disc which is a non-threshold injury; MA found that a partial tear of the right supraspinatus tendon is a non-threshold injury; Review Panel finds that MRI scan findings of partial -thickness supraspinatus tendon tear are more than likely incidental and that right shoulder injury is a threshold injury; applying section 6.6 of the Motor Accident Guidelines Review Panel satisfied that the accident can’t be discounted as either a cause of the fibrocartilage tear directly or as a material contributing factor aggravating a pre-existing degenerative condition; MAC revoked.

DETERMINATIONS MADE:  

CERTIFICATE

REVIEW PANEL ASSESSMENT OF THRESHOLD INJURY

Certificate issued under s 7.23(1) of the Motor Accident Injuries Act2017 (the Act)

1.     The Review Panel revokes the certificate dated 29 November 2024 and issues a new certificate determining that:

(a)    the following injuries caused by the motor accident:

·         cervical spine;

·         left shoulder, and

·         right shoulder,

are THRESHOLD INJURIES for the purposes of the Act.

(b)    the following injury caused by the motor accident:

·         lumbar spine,

is not a THRESHOLD INJURY for the purposes of the Act.

STATEMENT OF REASONS

INTRODUCTION

1. The claimant was the driver of a 2021 Lexus sedan with her son in the passenger seat. They were travelling along St Johns Road at Cabramatta at about 40 kmph. Near the intersection with Salisbury Street, the insured vehicle rear-ended a vehicle on the opposite side of the road, which in turn was thrust into the claimant’s pathway, colliding with her vehicle on the driver side. Airbags were deployed.

2. The claimant says that, as a result of the collision, she sustained injuries to her back, neck, right leg, both shoulders and chest. The claimant was conveyed to Liverpool Hospital by ambulance. Ambulance officers recorded that the claimant was wearing a seatbelt and she was trapped in her vehicle due to her injuries. Abrasion to the right side of the neck was observed by the ambulance officers which they found consistent with a seatbelt injury. They recorded that the claimant complained of right lower leg pain. They observed swelling and mild deformity of the tibia and ankle.

3. At Liverpool Hospital, the claimant was noted to be complaining of acute back pain, pain to the left shoulder, both clavicles, chest, low back, right inner groin and right anterior chin. Bruising was observed over the anterolateral mid to lower leg. The claimant was not able to put weight on the right leg. She was discharged from the hospital on 2 December 2022 with the provision of crutches to ambulate. The claimant says that her right knee hit the dashboard.

4. Allianz (the insurer) indemnifies the owner and/or the driver of the at-fault vehicle for liability to pay to the claimant any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the Act). The insurer denied liability for payment of statutory benefits beyond 26 weeks as the injuries caused by the accident were regarded as soft-tissue threshold injuries for the purposes of the Act. That decision was confirmed upon internal review.

ASSESSMENT UNDER REVIEW

1. As there is a dispute between the parties about whether the injury is a threshold injury under Schedule 2, cl 2(e) of the Act, the claimant was referred to Medical Assessor Nelukshi Wijetunga for assessment.

2. Medical Assessor Wijetunga certified on 29 November 2024 as follows:

The following injury caused by the motor accident:

• Cervical spine and shoulder (right and left) – Whiplash Associated Disorder
• Lumbar spine – soft tissue injury

is a THRESHOLD INJURY for the purposes of the Act.

The following injury caused by the motor accident:

• Right shoulder – partial tear of the supraspinatus 

is not a THRESHOLD INJURY for the purposes of the Act.

OTHER ASSESSMENT

1. Medical Assessor Surabhi Verma certified on 23 October 2024 as follows:

The following injury caused by the motor accident:

• Adjustment Disorder with Mixed Anxious and Depressed Mood

is a THRESHOLD INJURY for the purposes of the Act.

The President’s delegate was satisfied there is a reasonable cause to suspect that Medical Assessor Berma’s medical assessment was incorrect in a material respect. The insurer’s review application was accepted and will be referred to another Review Panel in due course.

THE REVIEW

1. The insurer sought a review of Medical Assessor Wijetunga’s certificate, on the grounds that the medical assessment was incorrect, within the meaning of s 7.26 of the Act, in a number of material respects. The insurer relies on the particulars set out in the application and supporting documentation.

2. The insurer brought the application within the time prescribed by s 7.26(10)(a) of the Act and cl 34 of Procedural Direction PIC 7 (28 days).

3. The insurer submits there is a reasonable cause to suspect that Medical Assessor Wijetunga’s assessment is incorrect in a material respect for the following reasons:

   (a)    failure to adequately assess causation;

   (b)    failure to respond to a substantial argument made by the parties thereby failing to have regard to all the available material, and

   (c)    failure to provide adequate reasons.

FAILURE TO ADEQUATELY ASSESS CAUSATION

1. The insurer submits that Medical Assessor Wijetunga considered whether the subject accident could have caused the tear to the right shoulder, but did not consider or address whether the subject accident did cause the tear to the right shoulder, given that:

   (a)    there is no reference to an injury to the right shoulder or right shoulder symptoms during the claimant’s hospital admission post-accident;

   (b)    an injury to the right shoulder was not reported in the Application for Personal Injury Benefits, and it was not listed as an injury by Dr Tran in his Certificates of Capacity until 3 July 2023;

   (c)    the available evidence suggests the claimant did not make any complaints in regard to the right shoulder until July 2023 (more than seven month following the subject accident) when she was referred for an X-ray of the right shoulder, and

   (d)    it was not until 29 January 2024, over 14 months post-accident, when a MRI of the right shoulder revealed a “bursal surface partial tear of the supraspinatus”.

   The insurer raises the issue whether the claimant had pre-existing, age-related tears in her right shoulder. It submits that it is unknown whether Medical Assessor Wijetunga determined that the pathology in the claimant’s right shoulder was an exacerbation of a pre-existing tear, or whether the subject accident caused a new tear.

FAILURE TO RESPOND TO A SUBSTANTIAL ARGUMENT MADE BY THE PARTIES THEREBY FAILING TO HAVE REGARD TO ALL THE AVAILABLE MATERIAL

1. The insurer submits that Medical Assessor Wijetunga failed to address the arguments squarely raised by the insurer in its original submissions that there was no reference to an injury to the claimant’s right shoulder, or any right shoulder symptoms, during the claimant’s admission following the accident.

2. The insurer also noted that an injury to the right shoulder was not reported in the claimant’s application for personal injury benefits, and it was not listed by her general practitioner (GP) in her Certificate of Capacity until 3 July 2023, more than seven months post-accident, which was not noted by the Medical Assessor. Further, so the insurer submits, the Medical Assessor does not address the fact that the tear in question was not identified in imaging until four months post-accident. The insurer notes that it is a widely accepted fact that an acute rotator cuff tear is associated with an immediate onset of pain.

FAILURE TO PROVIDE ADEQUATE REASONS

1. The insurer submits that the Medical Assessor failed to disclose the actual path of reasoning to the conclusion that the right shoulder tear was causally related to the subject accident.

2. The insurer’s review application was opposed by the claimant on various grounds. It is not necessary to summarise the claimant’s submissions in detail as they were not accepted by the President’s delegate. Briefly, the claimant submitted as follows:

   (a)    Medical Assessor Wijetunga found as a matter of fact that the partial tear was cause by the subject accident for the following reasons:

   (i)the airbag deployment most probably resulted in direct collision to the shoulders;

   (ii)the claimant was asymptomatic in the right shoulder prior to the subject accident;

   (iii)the claimant had no muscle atrophy or other signs, and

   (iv)the claimant had reduced range of movement to the right shoulder compared to the left shoulder.

   (b)    The claimant also submits that there is no evidence that the tear to the right shoulder was pre-existing. The insurer has not provided any scans or scan reports showing that there was a tear to the right shoulder before the subject accident. The claimant further submits that the seatbelt injury to the claimant’s right neck/collar bone was observed by the ambulance officers and that the Liverpool Hospital discharge referral records pain in both clavicles.

3. President’s delegate Ratula Gupta issued a Determination of an Application for Review of a Medical Assessment on 4 February 2025 which stated the satisfaction of the President’s delegate that there is a reasonable cause to suspect the medical assessment was incorrect in a material respect. The basis of that decision was stated to be the Medical Assessor’s failure to respond to a substantial argument made by the insurer in relation to the seven-month delay in documented evidence of the claimant making a complaint about her right shoulder which was relevant to a determination of whether the injury was causally related to the motor accident.

4. Accordingly, the review application was accepted and was referred to the Panel which is to reassess all of the injuries referred to Medical Assessor Wijetunga, unless the parties otherwise agree.

STATUTORY PROVISIONS

1. A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. The matter is determined at first instance by a Medical Assessor and, on review, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).

2. Part 5 of the Personal Injury Commission Act 2020 (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.[1]

   [1] Section 41(2) of the PIC Act.

3. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the 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.[2]

   [2] Rule 128 of the PIC Rules.

4. The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[3]

   [3] Section 7.26(6) of the Act.

5. All members of the Review Panel had no previous involvement with the claimant or with this matter.

THRESHOLD INJURY

1. The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 2
   8 November 2022 with various amendments commencing on 1 April 2023. From that date, the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “non-minor injuries” are known as “non-threshold injuries”.

2. The definition of what constitute a minor injury has not been amended and continues to apply to a threshold injury.

3. Any reference in these reasons to “minor injury” is a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.

4. A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or “psychological or psychiatric injury that is not a recognised psychiatric illness”.

5. 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 accident is a threshold injury for the purposes of the MAI Act.

6. 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 threshold 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.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.”

BUNDLES OF DOCUMENTS

1. The parties have presented their respective bundles of documents upon which they rely. The Review Panel (Panel) has read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel, or a Panel Member, has not read it, nor taken it into consideration. The same principle applies to parties not referring to, nor specifically relying upon, a document in their own bundle and submissions.

2. The fact that evidence is not referred to in these reasons does not mean it has been overlooked. It is not required that each piece of evidence be mentioned. The Panel is not required to “analyse every piece of information from every opinion contained in a document with which it was provided”. The Panel has come to its own conclusions and has taken its own history.

MATERIAL BEFORE THE REVIEW PANEL

1. The claimant relied upon the following material which the Panel has considered:

Doc No	Document	Date of Doc	Start page
CR1	Claimant’s submissions in reply. (See previously)	22.01.2025	7
A1	Claimant’s submissions for medical assessment of a minor injury dispute	28.06.2024	10

The claimant submits her injuries are non-threshold injuries and fall outside the definition of threshold injury because:

(a)    the claimant has radiculopathy, and

(b)    the claimant has sustained a tear to her right shoulder as reported in MRI examination on 29 January 2024 with associated moderate subacromial bursitis, which the claimant submits, is consistent with a partial tear of the supraspinatus tendon.

A2	Motor Vehicle Accident Claim Form	08.12.2022	12
A3	Certificate of Capacity/Fitness by Dr Dang Vu Tran	08.12.2022	17
A4	Letter from Allianz declining liability after twenty-six (26) weeks	06.03.2023	20
A5	Application for internal review	23
A6	Certificate of Determination – internal review	24.04.2023	25
A7	Ambulance report	28.11.2022	33
A8	Discharge Summary from Liverpool Hospital	28.11.2022	42
A9	Police report	07.12.2022	48
A10	Referral for Physiotherapy by Dr Tran	13.12.2022	59

Medical Investigation Reports and Referrals

A11 Medical Investigation report – X-ray left ribs and left shoulder 13.12.2022 61

1. Dr Lawrence Trieu reported as follows:

   ·no left rib fracture detected;

   ·the lungs and pleural spaces appear clear;

   ·no evidence of a recent left shoulder fracture or focal bone lesion, and

   ·there is mild arthritic change in the acromioclavicular joint.

A12 Medical Investigation report – X-ray chest left shoulder 13.12.2022 63

Same as A11 above.

A13 Medical Investigation report – X-ray both knees 15.12.2022 64

1. Dr Trieu reported unremarkable X-ray appearance of both knees. No evidence of a recent fracture.

A18 Medical Investigation report – X-ray right shoulder 24.07.2023 65

1. Dr Ratanjee commented no fracture.

A19	Referral for MRI right shoulder by Dr Tran	27.07.2023	66
A20	Referral for right shoulder ultrasound by Dr Tran	14.08.2023	67
A21	Referral for MRI cervical spine by Dr Tran	16.08.2023	68
A22	Medical Investigation report – ultrasound right groin and right lower leg	03.02.2023	70

Dr Joseph Trieu found no hernia or injury demonstrated in the right groin or right lower leg.

A24 Medical Investigation report – MRI lumbar and sacroiliac joints 23.03.2023 71

1. Dr Mathew Healy reported as follows:

   ·at L4/L5, there is a small broad based posterior disc bulge associated with mild facet joint arthropathy. There is mild canal stenosis and mild bilateral foraminal narrowing, and

   ·at L5/S1, there is a moderate broad-based posterior disc bulge which is eccentric to the left. The disc abuts and displaces the descending S1 nerve roots, more marked on the left. In association with mild facet joint arthropathy, there is mild to moderate canal stenosis and mild to moderate bilateral foraminal narrowing.

A26		Referral for MRI right shoulder	27.07.2023	72
A27	Medical Investigation report – MRI right shoulder	29.01.2024	73

1. Dr Zita Gacs reported as follows:

   ·        no evidence of fracture. Minor bone contusion of the clavicle;

   ·        mild biceps tenosynovitis;

   ·        minor injury to the infraspinatus muscle;

   ·        no evidence of full-thickness rotator cuff tendon tear;

   ·        bursal surface partial tear of the supraspinatus, and

   ·        moderate subacromial bursitis.

   Medical Reports

A14 Medical Report – ADL assessment by Melinda Tan-Stephen 10.01.2023 75

1. Not relevant for the Panel’s consideration.

A15 Physiotherapy Report by Dr Phu Hoang 21.02.2023 87

1. Given the history and physical signs and symptoms, Thuy appeared to have suffered WAD Grade II. The main areas of concern are the right hip and right buttock areas. Prognosis is good.

A16	GP (Dr Tran) handwritten response to questions	23.02.2023	89
A17	Physiotherapy Report by Dr Hoang	11.05.2023	91

1. Physical assessment showed signs of muscle strain in the neck, low back, right buttock and right hip. Most of muscle strain was Grade I or II, except for right hip (Grade III). At the completion of eight sessions as approved, Thuy was recovering quite well. She still complained of right groin pain.

A17 Medical Investigation report – X-ray chest left shoulder 21.02.2023 93

Similar to item A15.

A25 Medical Report of Dr Simon McKechnie, neurosurgeon, to Dr Tran 06.04.2023 95

1. On examination, she walks well without assistance. There is no definite weakness.

   According to radiology report, an MRI of the lumbar spine demonstrates a small L4/L5 and a slightly larger broad-based L5/S1 disc protrusion impinging upon the S1 nerve roots bilaterally.

   I have discussed the MRI findings and treatment options. She should continue with physiotherapy and core strengthening exercises.

   Clinical Notes

A28	Clinical notes of Liverpool Hospital	08.08.2023	96
A29	Clinical notes of Dr Dang Vu Tran	22.12.2022	200

1. Contrary to the direction made on 12 February 2025, the claimant did not indicate which clinical notes are said to be relevant to the matters in issue.

2. The insurer relied upon the following material which the Panel has considered:

Doc No	Document	Date of Doc	Start page
A1	Insurer’s submissions for review of the Certificate of Assessor Wijetunga. (See previously)	16.12.2024	2 - 8
A2	Insurer’s submissions in reply to claimant’s threshold injury dispute	23.07.2024	9 - 18

·The insurer submitted the claimant has not produced any evidence that demonstrates she sustained an injury that is not a threshold injury.

·If the claimant sustained injuries in the subject accident, the injuries meet the definition of “threshold injury”, as prescribed by s 1.6 of the MAI Act.

·The insurer provides a brief analysis of all the available medical documentary evidence.

·In relation to lumbar spine, the insurer rejects the claimant’s submission that she suffers from radiculopathy, as reference to “sciatica” does not equate to the presence of radiculopathy. The insurer further submits that:

(a)the claimant has not demonstrated or made any reference to material which would suggest the claimant suffers from two or more of the clinical findings as set out in cl 5.8 of the Motor Accident Guidelines to constitute a diagnosis of radiculopathy;

(b)there is no evidence to suggest the claimant sustained an injury to a nerve root in the right lower limb;

(c)the extent of the pathology defined in the lumbar spine was a small disc protrusion at L4/L5 and L5/S1; and

(d)the insurer submits that the pathology detected by the MRI scan was pre-existing and notes that a “disc protrusion” does not fall outside the definition of a threshold injury.

·in relation to the cervical spine, the insurer submits that:

(a)the claimant has not produced any imaging of her cervical spine;

(b)immediately following the accident, the NSW Ambulance records note there was no cervical spine tenderness and there was also no reporting of an injury to the neck during the claimant’s hospital admission following the accident;

(c)there is no evidence that the claimant has suffered any injury to a nerve or a complete or partial rapture of tendons, ligaments, menisci or cartilage in the cervical spine that would constitute an injury outside the definition of a threshold injury, and

(d)it is the insurer’s primary submission that the claimant did not suffer any injury to her cervical spine in the subject accident. If the claimant did sustain an injury to the cervical spine, the insurer submits that such injury was limited to a soft tissue injury, which is a threshold injury for the purpose of the Act.

·in relation to the Left and right shoulder injury, the claimant submits that:

(a)the insurer accepts that the claimant sustained a soft tissue injury to the left shoulder in the subject accident which is a threshold injury for the purpose of the Act;

(b)there is no reference to a right shoulder injury or symptoms during the claimant’s hospital admission. The claimant did not make any complaints in regard to the right shoulder until July 2023 (more than seven months following the accident) when she was referred for an X-ray of the right shoulder;

(c)it was not until 29 January 2024, over 14 months post-accident, when a MRI of the right shoulder revealed a “bursal surface partial tear of the supraspinatus”;

(d)the insurer submits there is no evidence the claimant suffered any injury to her right shoulder in the subject accident. Noting the significant time that passed since the accident to the first complaint of right shoulder symptoms, causation cannot be established between the accident and the injury to the right shoulder, and

(e)in the event that it is accepted that the claimant sustained an injury to the right shoulder in the subject accident, which is disputed, the insurer submits that such injury is limited to a soft tissue injury.

Clinical records (updated) of Medlife Family Medical Centre Various 2 - 125

EXAMINATION REPORT

1. The report of the Medical Assessor Christopher Oates is as follows:

   “THUY LAN TRINH CHAU

   Date of Accident: 28/11/2022

   Threshold injury dispute to be assessed

   ·Cervical spine – strain

   ·Lumbar spine – strain

   ·Shoulder – left shoulder – both shoulders – strain

   ·Shoulder – right shoulder – both shoulders - strain

   REASONS

   Details of who attended the Assessment

   The claimant attended the PIC Medical Suites on 19/06/2025, for re-examination by Medical Assessor Christopher Oates, on behalf of the Medical Review Panel, as arranged. She attended the examination unaccompanied.

   A Vietnamese interpreter (NAATI No. BI75C) was present for the duration of the assessment.

   A female chaperone was present during the physical examination.

   HISTORY

   Pre-accident medical history and relevant personal details

   Mrs Chau is 36 years old and right-hand dominant.

   She was born and educated in her native Vietnam and did supermarket retail work and then had an online business selling cosmetics, up until the time of the birth of her first child in 2011, and she was a stay-at-home mother doing the online business thereafter.

   She came from Vietnam to Australia in 2019 and worked at a nail salon three days a week.

   After the subject accident, she did not return to work because she noticed pain in the neck, particularly on the right side, if she bent her head forwards and this pain would radiate towards the right shoulder.

   She had had her second child in 2020.

   She does not smoke or drink alcohol.

   Prior to the accident, she did yoga at home in the afternoons and would go walking and jogging in the local area.

   Her husband is on a disability support pension for an injury following a motor vehicle accident which occurred in Victoria. She receives the Family Tax Benefit.

   She had not had any history of previous accidents or injuries, serious illnesses, or operations, and was on no regular medication prior to the subject accident.

   History of the motor accident

   Mrs Chau confirmed she was the driver of a 2021 Lexus automatic sedan with her then 11-year-old son in the front passenger seat on 28/11/2022. She was travelling at about 40kph. She was on a two-lane road with no median strip.

   A car coming from the opposite direction had been rear-ended in their lane and was pushed across into the path of her vehicle, and collided with her vehicle on the driver’s door side. The front and two top and two knee-level airbags deployed. She was restrained by her seatbelt.

   She said she hit her right knee and shin on the driver’s door at the time of impact, and the airbag hit her in the face and her right clavicle area was wrenched back when the seatbelt tensioned. She had a bruise and cut to the right side of her neck at the base from the seatbelt, and bruising to the right knee and extending down the front of the right shin. No screen or window glass broke in the car from the impact. The car was written off.

   She also recalls having low back pain, just to the right of the mid-line, and developed bruising in the right lower abdomen and groin area from the seatbelt.

   After the impact, her driver’s door was jammed. Ambulance and fire brigade arrived, and she was cut out of the vehicle by the fire brigade rescue. Her car was towed away.

   The ambulance transferred her to hospital after an assessment.

   Note: I asked the claimant about the Personal Injury Claim Form and she said it was not filled in by her but signed by her. This referred to left shoulder and she said there was a little bit of pain on the left side, but the main problem area was from the neck  towards the right shoulder.

   The ambulance records referred to right-sided neck and right clavicle injury from seatbelt, and also right leg injury, chest wall pain and low back pain, and right shin pain.

   History of symptoms and treatment following the motor accident

   She was assessed at Liverpool Hospital with investigations and given analgesics. She had low back pain, right groin pain and right buttock pain, and had an MRI scan of thoracolumbar spine and a CT scan of right tibia and fibula.

   She was an inpatient for six days because she couldn’t walk because of right leg, right groin and back pain. When she was discharged, she was on a walking stick which she used for 2-3 weeks afterwards.

   CT scan of right tibia and fibula showed no fracture in the tibia, fibula or visualised distal femur, or the partially imaged bones of the foot. There is mild superficial soft tissue thickening and subcutaneous oedema along the anterolateral aspect of the mid leg. There is normal alignment of the knee and ankle joints, and no knee joint effusion.

   MRI scan thoracolumbar spine from C5 level to the sacrum showed normal alignment with normal bone marrow signal and no marrow oedema or evidence of fracture throughout the spine. Minor L4/5 disc bulge without significant spinal canal or foraminal narrowing and minor L5/S1 disc desiccation and annular fissure. There was a central/paracentral left greater than right disc protrusion indenting the thecal sac and contacting the left traversing S1 nerve. No significant spinal canal narrowing and the L5 nerve roots exit freely.

   She saw her GP, Dr Tran at Lansvale, for the first time on 9/12/2022, a few days after she was discharged, complaining of anterior right leg and right groin, hip and low back pain and bruising. Low back pain was radiating to the right thigh, down the leg and to the foot. She was given Panadol and another medication for pain whose name she cannot recall.

   She was referred to physiotherapy with treatment given to the right side of the neck and right trapezius, and treatment to the lower back.

   She said her main problem was the right knee, but the left knee was mentioned in the GP records, and when I asked the reason for this, she explained that she had hit her left knee under the dashboard when she moved forward in the seat at the time of impact.

   Note: I also asked the claimant why the GP did not refer to the right shoulder and she explained and indicated that the problem was on the right side of her neck and across the right clavicle. The hospital record had indicated pain in both clavicles. The right side of neck and right clavicle was the area contacted when the seatbelt tensioned.

   She also had some physiotherapy to the lower back. She attended twice a week for four months. She said the low back improved but the right-sided neck and trapezius area did not improve.

   The doctor also referred her for acupuncture but the insurer declined this treatment. She could not afford the expense, so did not attend.

   She said over time the right leg and shin bruise and lower abdominal bruise settled.

   She was referred to a neurosurgeon, Dr McKechnie, Liverpool, and she saw him on 6/4/2023, that is five months after the accident. He noted the onset of low back pain radiating through both buttocks and legs, worse on the right side, with treatment to date consisting of physiotherapy, Mobic, Panadol Osteo, Panadeine Forte and Endep without improvement.

   He noted definite weakness, although she could walk well without assistance, and MRI scan findings in the L4/5 and L5/S1 discs, where an L5/S1 disc protrusion impinged upon the bilateral S1 nerve roots. He advised continuation of physiotherapy and core strengthening exercises and to trial Lyrica 25mg twice daily with review if there was no improvement.

   She had a follow-up visit and reported there was no improvement, and he advised continuation of the same treatment and there were no further specialist appointments.

   The GP had also referred her for x-rays of the chest and left ribs and left shoulder performed on 13/12/2022. There was no left rib fracture and no evidence of shoulder fracture.

   X-rays of both knees performed on 15/12/2022 showed unremarkable appearances bilaterally with no evidence of recent fracture.

   She continued with regular visits to the GP, Dr Tran, and on 24/7/2023 she presented with an exacerbation of right shoulder pain with restriction of movement and function, with impingement in the right shoulder on elevation and abduction to 90°. Resisted abduction was restricted to 60° with a positive empty can test, and that external rotation exacerbated right shoulder pain, with tenderness over the AC joint.

   Note: I asked the claimant what had caused this exacerbation of right shoulder pain and whether there was a subsequent event. A further GP visit on 11/8/2023 referred to a presentation with severe right-sided neck pain radiating to the right upper shoulder with tension, spasm, swelling and marked tenderness, and restriction of all neck movements.

   A medical certificate of 3/7/2023 did not mention the right shoulder, however a following medical certificate of 24/7/2023 mentioned, “Injury 4 – Mechanical right shoulder pain with positive impingement.”  I note this was the first time that right shoulder was referred to in the list of injuries related to the accident.

   The claimant’s response was that there was no obvious reason for the exacerbation of symptoms, in that there was no new incident and she explained that the pain that she complained of to the general practitioner was on the right side of the neck and into the right upper trapezius and clavicle, which was the same area as it had been ever since the date of accident. She said the physiotherapist told her there might be some deep-seated problem which was coming to the surface late.

   The GP then decided to send her for further investigations, including an MRI scan of the shoulder and x-ray.

   X-ray right shoulder on 24/7/2023 showed no fracture or dislocation, with preserved glenohumeral and AC joints and normal alignment.

   MRI scan right shoulder of 29/1/2024 showed normal alignment at the AC joint with very minor bone oedema in the distal clavicle and in the glenoid. There was no joint effusion, no evidence of fracture or dislocation, with normal glenohumeral joint alignment. There was limited external rotation noted. There was insertional tendinopathy without evidence of tear in the subscapularis tendon. Long head of biceps and short head of biceps were intact. There were changes in the supraspinatus tendon insertion consistent with insertional tendinopathy but no evidence of full-thickness tear. There was a 10mm x 6mm bursal surface partial tear of the posterior fibres of supraspinatus. There was an associated moderate subacromial bursitis with fluid and debris in the bursa extending to the musculotendinous junction.

   No change in treatment eventuated as a result of these investigations.

   Details of any relevant injuries or conditions sustained since the motor accident

   Nil relevant.

   Current symptoms

   The worst pain area is the neck and adjacent right clavicle and right upper trapezius. Then there is low back pain, then right groin pain, and then soreness in the right shin.

   The neck pain is sharp at times and pain also is present in the upper right pectoral area.

   On specific questioning, she said she does not get pain in the apex of the shoulder or into the lateral upper arm on the right side, which is where pain from a rotator cuff tear would manifest.

   At home she continues her housework with discomfort and her husband and kids do the yard work. She doesn’t do any sports or recreations now because physical activity aggravates the pain on the right side of the neck and right upper trapezius radiating towards the right shoulder, and also the right-sided low back pain.

   Current and proposed treatment

   She has Panadol two tablets per day and another medication only when required because it causes drowsiness and she estimates one every second day.

   She attends physiotherapy once a week, which is paid for by the insurer, with treatment to the neck and right trapezius and lower back.

   CLINICAL EXAMINATION

   A female chaperone was present.

   She was of petite build with height 147cm and weight 53.7kg.

   She sat comfortably whilst relating the history and transferred freely out of a chair and on and off the couch without any visible discomfort.

   Cervical spine (cervicothoracic)

   There was a normal cervical lordosis. There was marked tightness in the bilateral trapezii bilaterally and tenderness in the right upper trapezius and adjacent right lower paracervical area, but no left-sided tenderness.

   Flexion was two-thirds, extension three-quarters with complaint of base of right neck pain. Lateral flexion two-thirds bilaterally and rotation three-quarters bilaterally. There was complaint of right basal neck soreness on lateral flexion and rotation to the right.

   There were no abnormal neurological findings in the upper limbs. Reflexes were symmetrical and present. Power was normal. Sensation was normal.

   Upper arm girth; right 27cm, left 28cm at 7cm above the elbow.

   Forearm girth; right 24cm, left 24cm at 5cm below the elbow.

   Thoracic spine (thoracolumbar)

   There was no tenderness. There was full range of movement with intact sensation over the trunk.

   Lumbar spine (lumbosacral)

   There was a normal lumbar lordosis. There was no tenderness or guarding.

   Flexion was three-quarters of normal with extension full and complaint of low back pain on extension. Lateral flexion was three-quarters of normal bilaterally.

   Slump test was negative bilaterally. Supine straight leg raising was negative on the left and positive on the right at 70° with complaint of right groin and right hamstring discomfort.

   There were no neurological abnormalities in the lower extremities. Reflexes were symmetrical. Power was normal in both lower extremities, as was sensation.

   Thigh girth; right equals left equals 45cm at 10cm above the superior patellar pole.

   Calf girth; right 32cm, left 32.5cm at 11cm below the inferior patellar pole (level of maximal circumference).

   Upper extremities

   Active range of movement of the shoulders was measured with a goniometer.

   There was no tenderness about the left shoulder or clavicle. There was tenderness in the right clavicle and over the right acromioclavicular joint, but no tenderness at the apex of the shoulder. There was no scapular tenderness and there was no numbness in the axillary nerve distribution in the upper lateral right arm

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	130°	180°
Extension	40°	50°
Adduction	20°	40°
Abduction	110°	180°
Internal Rotation	70°	80°
External Rotation	80°	90°

IMAGING BROUGHT TO THIS EXAMINATION

The claimant attended with an MRI scan right shoulder dated 29/1/2024 with both reports and images. I viewed the images and agree with the report.

Diagnosis, causation and reasons

Cervical spine

The diagnosis is soft tissue injury to the cervical spine.

The accident was a cause of this injury, as there is clearly documented evidence of injury to the base of the right side of the neck and adjacent trapezial and clavicle area from seatbelt abrasion caused by tensioning of the seatbelt.

Lumbar spine

This is a soft tissue injury, incorporating an annular fissure of the L5/S1 disc.

The accident is a cause of this injury, as low back pain is documented in the early contemporaneous medical evidence.

Left shoulder

This is a redefined as a soft tissue injury to the left clavicle area and as referred symptoms from the cervical spine to the upper trapezius.

This condition is referred to in the hospital records and early contemporaneous medical records. There is no reference in the contemporaneous medical evidence to discrete injury to the left shoulder joint.

Right shoulder

This is defined as a soft tissue injury to the area of the right clavicle with no bony injury and also referred symptoms from the cervical spine to the right upper trapezius.

The accident was a cause of this injury as clavicle and right trapezial and neck area are referred to in the contemporaneous medical evidence.

There was no evidence of a discrete injury to the right shoulder joint, including any of the soft tissue components of the rotator cuff.

The MRI scan findings of 29/1/2024 of partial-thickness supraspinatus tendon tear are more likely than not an incidental finding, as there was no history of symptoms which could be attributed to a right shoulder rotator cuff tear, namely pain at the apex of the shoulder and into the right upper arm.

The claimant was carefully questioned on this point and maintained that from the date of accident to the present, the pain has been centred at the base of the right side of the cervical spine and across into the right upper trapezius, and adjacent  right clavicle area, but not into the shoulder joint area.

It is clear from the contemporaneous evidence that the pressure from the seatbelt tensioning occurred to the right side of the neck at the base and adjacent right clavicle, rather than to the anterior aspect of the right shoulder joint, because of the slight body habitus of the claimant.

THRESHOLD INJURY

Cervical spine

This is a threshold injury.

There was no imaging performed to demonstrate any partial or complete rupture of intervertebral disc fibrocartilage. There were not two or more signs present of cervical radiculopathy.

Lumbar spine

This is a non-threshold injury.

The original MRI scan taken at Liverpool Hospital on the date of injury shows an annular fissure in a mildly dehydrated   L5/S1 disc. The lumbar spine was symptomatic from the date of injury, with no evidence of this part having been symptomatic before the accident.

Therefore, it is not possible to discount the accident as either a material cause of the fibrocartilage tear of the disc seen on MRI scan directly, or in the alternative as a material contributing factor causing aggravation of this condition were it to be considered a pre-existing degenerative condition, causing it to become symptomatic and remain symptomatic since the accident.

There is a positive sciatic nerve stretch test, but no other sign of lumbar radiculopathy. For the condition to be diagnosed, two or more signs as prescribed in the Motor Accident Guidelines must be present.

Left shoulder

This is a threshold injury.

As indicated above, there was no injury to the left shoulder joint, however, the left clavicle and trapezius area is the site of referred symptoms from the cervical spine.

Right shoulder

This is a threshold injury.

There was no evidence of direct injury to the right shoulder joint, but rather the picture is of referred symptoms from the cervical spine and direct soft tissue injury to the right clavicle area, with some irritation of the distal end of clavicle at the acromioclavicular joint.

The MRI scan findings of the right shoulder indicate an incidental finding of partial tear of supraspinatus tendon which is not considered to result from the accident, for reasons discussed above.

Outcome

The Panel’s clinical findings and conclusions differ from those of the original Medical Assessor.”

FINDINGS

1. The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[4]

   [4] Section 7.26(6) of the Act.

2. The Panel is not required to choose between medical opinions and is required to form its own opinions.[5] The Panel adopts the findings and opinions of the Medical Assessor Oates with which Medical Assessor Barnsley concurs.

   [5] Allianz Australia Group Limited v Keen [2021] NSWCA 287 and Insurance Australia Group Limited v Marsh [2021] NSWCA 31.

3. The Medical Assessors have explained the bases and rationale of their assessments. They are of the opinion that the bursal surface partial tear of the right supraspinatus tendon, shown on MRI scan right shoulder performed on 29 January 2024, was an incidental finding, for the reasons stated. They have explained why they are of the opinion that no two or more signs of radiculopathy have been present since the accident.

CONCLUSION

1. For the above reasons, the Panel concludes that the certificate dated 23 October 2024 should be revoked. The new Certificate appears at the commencement of these reasons.