Allianz Australia Insurance Limited v Miles (No 2)
[2025] NSWPICMP 564
•1 August 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Allianz Australia Insurance Limited v Miles (No 2) [2025] NSWPICMP 564 |
CLAIMANT: | Rachel Miles |
INSURER: | Allianz Australia Insurance Limited |
REVIEW PANEL | |
SENIOR MEMBER: | Susan McTegg |
MEDICAL ASSESSOR: | David Gorman |
MEDICAL ASSESSOR: | Rhys Gray |
DATE OF DECISION: | 1 August 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); lumbar spine; right arm; whole person impairment (WPI); claimant suffered injury in a motor vehicle accident; Medical Assessor (MA) certified 12% WPI for injury to lumbar spine; injury to right shoulder; injury to right arm; history of pre-existing complaints; Held – causation of injury to lumbar spine established; injury to lumbar spine soft tissue injury; assessed as DRE category II or 5% WPI; no frank injury to right shoulder in accident; claimant sustained injury to the right shoulder; causation established having regard to clauses 6.5 to 6.7 of the Motor Accident Guidelines; Briggs v IAG Limited Trading as NRMA Insurance, and section 5D of the Civil Liability Act 2002 cited; claimant sustained soft tissue injury to right arm (resolved); no assessable impairment of right arm; claimant underwent surgery to right shoulder; impairment not stabilised; likely to be further improvement following shoulder reconstruction surgery; Review Panel declines to assess WPI of right shoulder; recommends re-examination in December 2025; MAC revoked. |
DETERMINATIONS MADE: | MOTOR ACCIDENT INJURIES ACT 2017 Whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10% Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate of Medical Assessor Alexander Woo dated 26 October 2024 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a WPI of 5%: · Lumbar spine – soft tissue injury · Right arm – soft tissue injury (resolved). 2. The Review Panel finds the injury to the right shoulder is not stable and not capable of assessment. |
STATEMENT OF REASONS
INTRODUCTION
On 30 April 2022 Ms Rachel Miles (the claimant) was driving her vehicle approaching a roundabout intending to turn left when her vehicle was hit from behind by the insured vehicle (the accident).
Ms Miles has brought a claim for common law damages under the Motor Accident Injuries Act 2017 (the MAI Act).
Allianz Australia Insurance Limited (the insurer) is the relevant insurer with liability to pay damages to Ms Miles under the MAI Act.
Section 4.11 of the MAI Act provides that there is no entitlement to damages for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%.
The claimant commenced proceedings in the Personal Injury Commission (Commission) in respect of the dispute as to whether the degree of permanent impairment sustained as a result of the injury caused by the accident is greater than 10%. This constitutes a medical assessment matter pursuant to Schedule 2, cl 2 of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[1]
[1] Section 7.20 of the MAI Act.
The dispute as to permanent impairment was referred to Medical Assessor Alexander Woo who issued a certificate dated 26 October 2024. It is that certificate which is the subject of this review.
DOCUMENTS CONSIDERED BY THE REVIEW PANEL
The Panel constituted in this matter had already been constituted by the President of the Personal Injury Commission to conduct a review of Medical Assessor Woo’s assessment dated 26 October 2024 in respect of a treatment dispute (Matter No. R-M1052427/22)
On 20 January 2025 in Matter No R-M1052427/22 the insurer uploaded to the portal a bundle of documents paginated from pages 1 to 664 (insurer’s documents).
On 20 January 2025 in Matter No R-M1052427/22 the claimant uploaded to the portal a bundle of documents paginated from pages 1 to 142 (claimant’s documents).
To avoid duplication of records the Panel issued the following Directions dated 3 February 2025 stating:
1.This Review Panel has already been convened to conduct a review of Medical Assessor Woo’s assessment dated 26 October 2024 in respect of a treatment dispute. It is proposed that the two disputes be assessed together although two separate certificates will be issued.
2.On 10 December 2024 the Review Panel directed the insurer upload an indexed and paginated bundle of all documents relied upon by the insurer in that review by 21 January 2025 and the directed the claimant to upload an indexed and paginated bundle of all documents relied upon by the claimant in that review by 4 February 2025.
3.To avoid duplication the Review Panel proposes to rely upon the documents furnished by each party in respect of the treatment dispute with the proviso that the insurer upload to the portal in one indexed and paginated bundle any additional documents sought to be relied upon in respect of the permanent impairment dispute on or before 12 February 2025 and the claimant to upload to the portal in one indexed and paginated bundle any additional documents sought to be relied upon in the permanent impairment dispute by 21 February 2025.
In accordance with the Directions dated 3 February 2025 the insurer on 13 February 2025 uploaded to the portal a bundle of documents paginated from pages 1 to 324 (insurer’s further documents).
On 20 February 2025 the claimant uploaded to the portal a bundle of documents paginated from pages 1 to 289 (claimant’s further documents).
Whilst no submissions were contained within the claimant’s bundle of documents the Panel has had regard to the submissions uploaded by the claimant with the Reply to the insurer’s application for review on 9 January 2025 (claimant’s submissions).
On 27 March 2025 the Panel issued a Report and Directions notifying the parties of the medical assessment schedule to occur on 24 April 2025. Further, the Panel noted the clinical notes of Harrington Park Medical Centre do not include a clinical entry relating to the claimant’s reported attendance following the accident on 16 May 2022. The Panel directed the claimant by Monday 21 April 2025 to upload to the portal a full copy of the clinical notes of any general practitioner consulted by the claimant in the period two years preceding the accident to date, including an entry relating to an attendance on or about 16 May 2022.
On 1 April 2024 the claimant uploaded to the portal an Application to Admit Late Documents together with a report of Dr Herald dated 12 March 2025 and an X-ray and MRI report of the right shoulder dated 7 March 2025.
On 1 April 2024 the insurer uploaded to the portal an Application to Admit Late Documents together with extracts of Harrington Park Medical Centre clinical records from 30 September 2006 to 27 May 2022 paginated from page 1 to 97 (ALAD 1 April 2025).
On 17 April 2025 the claimant uploaded to the portal an Application to Admit Late Documents together with the clinical notes of Harrington Park Medical Centre for the period 3 June 2022 to 15 March 2024 paginated from page 1 to 400 (ALAD 17 April 2025).
RELEVANT LEGAL AUTHORITY
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.[2]
[2] Clause 1.2 of the Guidelines.
Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:
“6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
OTHER MEDICAL CERTIFICATES IN RESPECT OF THE ACCIDENT
Certificate of Medical Assessor Ian Cameron dated 17 February 2023
Medical Assessor Cameron issued a certificate dated 17 February 2023 in which he assessed the cervical and lumbar spine injuries as threshold (minor) injuries.
He found no neurological abnormalities in either the upper or lower limbs. He found range of movement of both shoulders were consistent with abduction 120º, adduction 30º, flexion 120º, extension 30º, external rotation 70º and internal rotation 80º. He also observed a symmetrically reduced range of movement of the lumbar spine.
Medical Assessor Cameron concluded the accident caused an exacerbation of chronic soft tissue problems to the cervical and lumbar spine. He stated:
“There is no evidence of radiculopathy as defined in the Motor Accident Guidelines at present or at any time following the motor vehicle crash. There is no evidence that an annular fissure was caused by the motor vehicle crash. They are common findings in asymptomatic people of Ms Miles age and the mechanism of injury in the motor vehicle crash would not be expected to transmit major force to the lumbar spine”.
He certified the following injury was not caused by the accident:
·Head – post-concussion syndrome.
Certificate of Medical Assessor Ian Cameron dated 5 April 2025
Injury to the lumbar spine was referred for further assessment and Medical Assessor Cameron issued a certificate dated 5 April 2025 in which he certified the following injury caused by the accident was not a threshold injury for the purpose of the MAI Act:
·Lumbar spine – soft tissue injury.
Medical Assessor Cameron reported in 2016 there was a C5/6 fusion by Dr Sheridan and in 2010 there was a C6/7 cervical fusion with persisting radiculopathy.
Medical Assessor Cameron reported on 10 November 2023 Dr Sheridan performed an L5/S1 microdiscectomy. This improved the leg pain but there was continuing urinary incontinence. He noted some symptoms in the right lower extremity and some residual numbness in the third, fourth and fifth toes on the right foot.
Medical Assessor Cameron reported signs of continuing radiculopathy with a reduced right ankle jerk and restricted straight leg raising on the right side. He thought the increased circumference of the right lower extremity was likely to be related to oedema. He found it plausible that there had been deterioration of the lumbar spine degenerative disease with radiculopathy since his earlier assessment.
Medical Assessor Cameron found that the injury to the lumbar spine was not a threshold injury because radiculopathy was present.
The insurer has lodged an application for review of this certificate, and that review will also be determined by this Panel.
Certificate of Medical Assessor Ian Cameron dated 5 April 2025
Medical Assessor Cameron issued a certificate dated 5 April 2025 in which he certified the following injury caused by the accident was not a threshold injury for the purpose of the MAI Act:
·Right shoulder – soft tissue injury.
He also certified that the following injuries were not caused by the accident:
·Right arm – aggravation of pre-existing radiculopathy.
The insurer has lodged an application for review of this certificate, and that review will also be determined by this Panel.
Medical Assessor Woo (treatment dispute right shoulder) dated 26 October 2024
Medical Assessor Woo issued a certificate dated 26 October 2024 in which he certified the following treatment and care relates to the injury caused by the accident:
·cortisone injection to the right shoulder;
·arthroscopic surgery to the right shoulder.
Medical Assessor Woo certified the cortisone injection to the right shoulder is reasonable and necessary in the circumstances. He certified the arthroscopic surgery to the right shoulder is not reasonable and necessary in the circumstances.
The insurer has lodged an application for review of this certificate, and that review will also be determined by this Panel.
ASSESSMENT UNDER REVIEW OF MEDICAL ASSESSOR WOO DATED 26 OCTOBER 2024
Medical Assessor Woo issued a certificate dated 26 October 2024 in which he certified the following injuries caused by the accident gave rise to a permanent impairment of 12%:
·lumbar spine – aggravation of pre-existing disc bulging and deterioration;
·right shoulder – possible rotator cuff tear; and
·right arm – aggravation of pre-existing radiculopathy.
The following injuries were referred for assessment:
·lumbar spine – disc bulging and deterioration;
·right shoulder – annular tear; and
·right arm – radiculopathy, weakness and numbness.
Medical Assessor Woo noted the clinical notes of Harrington Park Medical Practice showed the following:
10/12/2010 C6/7 discectomy + fusion (MVA 2010), Dr Darwish;
20/04/2011 Gastro-oesophageal reflux disease;
08/07/2011 L4/5 and L5/S1 minor disc bulges;
23/02/2016 left hip osteoarthritis;
15/12/2017 C5/6 anterior discectomy and fusion (MVA 2016), Dr Sheridan;
05/04/2018 right total hip replacement;
31/08/2018 right chondromalacia patella;
31/08/2018 ulcerative colitis;
31/08/2018 atrophic gastritis;
20/05/2019 folate deficiency;
13/03/2023 right supraspinatus tendon partial thickness tear;
05/06/2023 right S1 nerve root compression; and
10/11/2023 L5/S1 microdiscectomy.
He noted as a result of the previous accidents and the two cervical fusions Ms Miles had permanent nerve damage and suffered chronic neuropathic pain in her right arm. He also noted she had a fall on her right arm and shoulder on 2 November 2022.
Medical Assessor Woo reported there was a 3cm scar in keeping with the L5/S1 microdiscectomy in November 2023. He found range of movement of the lumbar spine was limited by pain, flexion was ½ normal, extension 2/3 normal and lateral flexion was normal to both sides. He found no dysmetria. He found non-verifiable radicular complaints, namely sciatica pain in the lower limbs but no muscle guarding. He reported reflexes were normal and symmetrical, straight leg raising was 60º to both sides and sciatic nerve root tension signs were negative. He found no weakness or sensory loss localised to any spinal nerve root distribution.
On examination Medical Assessor Woo reported vague tenderness in the right shoulder. Range of movement was limited by pain. He used a goniometer to measure range of motion and recorded the following:
Shoulder Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
90°
180°
Extension
30°
50°
Adduction
30°
50°
Abduction
90°
180°
Internal Rotation
30°
90°
External Rotation
90°
90°
Both the right upper arm and the right forearm were 0.5cm bigger than the left.
Medical Assessor Woo concluded the MRI lumbar spine findings following the accident appears to be similar to a study in 2012.
Medical Assessor Woo concluded there was evidence of pre-existing disc bulging at L4/5 and L5/S1 prior to the accident with evidence of radicular symptoms in the lower limbs prior to the accident.
He stated the annular tear listed in the referral for the right shoulder must be a typographical error and it should be a tendon tear. He noted there was the suggestion of a tear shown on the ultrasound on 6 November 2022 which was performed after a fall on the right shoulder and arm on 2 November 2022. He noted the MRI of 17 May 2023 reported “cuff tendinosis without a tear” and degenerative fraying of the labrum with a probable small tear. He concluded there was no definite evidence of an acute injury to the right shoulder during the accident and the reported probable labral tear is likely degenerative in nature.
Indeed, his opinion as to causation of the right shoulder condition was equivocal. Whilst he concluded a possible rotator cuff tear was caused by the accident he stated:
“There is no definite evidence that there was an acute injury to the right shoulder during the subject accident and caused rotator cuff tear. The reported probable labral tear is likely degenerative in nature.”
In relation to the right arm, he concluded the current symptoms and signs of right arm radiculopathy were the same as prior to the accident and found no assessable impairment. He assessed 0% whole person impairment (WPI) for the right arm radiculopathy.
Medical Assessor Woo found the aggravation of the pre-existing bulge was a significant contributing factor to the need for surgery and assessed the lumbar spine at 10% WPI.
He considered it inappropriate to assess the right shoulder by range of motion due to inconsistencies. He noted the ultrasound and MRI showed subacromial bursitis and assessed 10% impairment of the acromioclavicular joint for mild joint swelling or 2% WPI.
REVIEW PROCEDURE
The insurer lodged an application for review of the medical assessment. On 28 January 2025 the delegate of the President extended the time for the making of the application for review and being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the Personal Injury Commission Act, 2020 (PIC Act). A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[3]
[3] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.
On 27 March 2025 the Panel agreed an examination was necessary.
EVIDENCE BEFORE THE REVIEW PANEL
A summary and review of the evidence including relevant radiological investigations relied upon by the parties is set out in Appendix A to this statement of Reasons.
SUBMISSIONS
Insurer’s submissions
The insurer provided submissions dated 23 November 2023 in relation to the dispute as to permanent impairment.[4]
[4] Insurer’s documents p 20
Right shoulder injury
The insurer asserts the claimant did not sustain an injury to her right shoulder in the accident or as a result of the accident.
The insurer refers to the claimant’s statement dated 3 June 2022 where she says she didn’t feel any pain at the time of the accident, and she didn’t impact the steering wheel or anything like that, but her body was moved forward. The insurer also relies upon the statement from the insured driver who denied there was a collision and no impact between the two vehicles at all. The insurer submits the photographs of both vehicles taken following the accident do not depict any damage to either vehicle.
The insurer submits that the supraspinatus tear referred to in the ultrasound was no more than an incidental finding and likely related to the claimant’s pre-existing complaints.[5] The insurer notes the following history of right shoulder complaints:
·at a consultation with Harrington Park Medical Centre on 7 October 2008 the claimant gave a history of a sore right neck with pain shooting down her outer arm in the context of her work. Range of motion in the right shoulder was noted to be minimally restricted on internal rotation only.
·at a consultation with Harrington Park Medical Centre on 13 June 2017 the claimant complained of ongoing pain in her neck and both shoulders, particularly on the left.
·at a consultation with Dr Parmegiani on 8 June 2012 the claimant reported developing increasing symptoms of pain in the neck and right shoulder as well as pins and needles down the whole right arm.
·at a consultation with Dr Coroneos on 7 June 2017 the claimant described pain in the right outer shoulder.
[5] Insurer’s documents p 44
The insurer submits the MRI scan performed on 17 May 2023 suggested that any tear was of a degenerative nature.
In relation to the fall on 18 October 2022 the insurer notes the claimant described her fall as follows:
“As I got out of the car my left leg went out from under me and I fell on the road and council strip, lucky some of the fall was broken by grass, but my right arm has more severe pins and needles and is sore from the fall and my left outer thigh it very sore… As I attempted to stand up I fell again, hurting my right arm and left leg again”.
However, the insurer notes the driver of the car stated:
“As soon as she stepped out, I wasn’t moving my car and was looking in her direction and immediately as she stepped out, she had a stumble and fell backwards and landed on her backside. She didn’t drop from a standing position, she stumbled, then lowered and fell onto her backside.
I asked, “Are you okay?” and she said, “My left just went numb” and I responded, “Do you need help?” and she said “No”. She got up and walked away normally, there wasn’t any type of limping or struggling”.
The insurer relies upon the records of Harrington Park Medical Practice to assert:
“On 24 October 2022 the claimant reported having undergone a cortisone injection the previous week and that transport had been organised. She advised that following the injection her leg kept giving way and she experienced difficulty walking. She advised that when she got home, she fell down on her right arm and shoulder. She complained of right shoulder, arm and cervical spine pain. The claimant was referred for an MRI scan of the cervical spine. On 4 November 2022 the MRI scan was reviewed, and it was recorded that there was no acute pathology. The claimant also advised that she was working 4 days per week and that her employer had been accommodating.
At consultation on 13 March 2023 Dr El Ayoubi noted that a right shoulder ultrasound had revealed a partial thickness tear of the right supraspinatus tendon.”[6]
[6] Insurer’s documents p 52
The insurer submits if it is accepted that the claimant sustained an injury to the right shoulder in a fall on 18 October 2022 it cannot possibly be caused by the accident as per clauses 6.5 and 6.7 of the Guidelines or s 5D of the Civil Liability Act, 2022 (CLA).[7] It is noted that s 5D of the CLA relevantly provides:
“5D General principles
(i) A determination that negligence caused particular harm comprises the following elements:
(a)That the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b)That it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).”
[7] Insurer’s documents p 44 and 52
The insurer submits it would not be appropriate for the insured’s liability to extend to any injury sustained as a result of the claimant falling after exiting a vehicle some eight months post-accident.
If it is accepted that the claimant sustained an injury to the right shoulder it is submitted that it is likely to give rise to a 0% WPI. The insurer refers to the assessment by Medical Assessor Cameron who observed inconsistent movement of both shoulders which the claimant attributed to variable pain. The insurer notes the claimant does not allege an injury to the left shoulder and refers to clause 6.51 of the Guidelines which provides:
“If the contralateral uninjured joint has a less than average mobility, the impairment value(s) corresponding with the uninjured joint can serve as a baseline and are subtracted from the calculated impairment for the injured joint only if there is a reasonable expectation that the injured joint would have had similar findings to the uninjured joint before injury”.
Applying clause 6.51 of the Guidelines the insurer submits the right shoulder would be assessed as 0% WPI.
Right arm injury
The insurer submits that whilst the claimant’s alleged complaints are in the right arm, the injury sought to be assessed is more appropriately defined as an injury to the cervical spine with radiculopathy.
The insurer submits the claimant has a long history of cervical spine and right upper limb radicular complaints relating to a workplace injury in 2008 and two prior motor vehicle accidents. It is also noted that the claimant underwent a C6/7 discectomy, fusion and rhizolysis on 10 December 2010 and a C5/6 anterior discectomy and fusion in December 2017.
As a result of the first surgery Assessor Truskett assessed the cervical spine at 25% WPI. On 7 June 2017 Dr Coroneos made similar findings.
The insurer submits despite the surgeries the claimant continued to complain of neck pain and ongoing cervical radiculopathy in the period immediately prior to the accident.
The insurer submits if the claimant did sustain injury to her cervical spine in the accident it was limited to an exacerbation of her chronic cervical spine soft tissue injuries as found by Medical Assessor Cameron. It is also noted the claimant had a pre-existing 25% WPI in respect of the cervical spine.
Lumbar spine injury
The insurer submits the claimant has a long history of lumbar spine complaints with referred symptoms to both lower limbs.
The insurer submits the accident was very minor, following the accident the claimant did not seek treatment for more than two weeks and then only reported an exacerbation of the previous symptoms.
The insurer submits if the claimant did sustain an injury to her lumbar spine in the accident it was limited to an exacerbation of her chronic lumbar spine soft tissue problems as found by Medical Assessor Cameron and gives rise to a 0% WPI.
Claimant’s submissions
The claimant uploaded submissions on 9 January 2025 in response to the application for review filed by the insurer.[8]
[8] Claimant’s submissions
The claimant asserts there is no material error in the assessment of Medical Assessor Woo having regard to his examination and the available medical evidence.
In relation to the insurer’s submission that the right shoulder injury is not related to the accident the claimant notes the insurer agreed to accept the expense of the right shoulder arthroscopy, rotator cuff repair, acromioplasty and biceps tenodesis including intra operative PRP injection, noting the claimant underwent the surgery on 20 December 2024.
THE MEDICAL EXAMINATION
Ms Miles was examined by Medical Assessor David Gorman and Medical Assessor Rhys Gray at the medical suites at the Personal Injury Commission on 8 May 2025. She attended unaccompanied.
HISTORY
Pre-accident medical history and relevant personal details
Ms Miles is a 52-year-old woman. She is single and has 4 children aged 13, 15, 26 and 30 years. The youngest two children are at home.
Ms Miles is currently working as a counsellor for 30 hours per week. She initially had commenced a teaching degree but did not finish it.
Ms Miles worked in administration roles and then in the finance sector as a mortgage broker for 13 years.
She completed a Bachelor of Social Science majoring in psychology. She also completed a Diploma of Counselling.
In 2010 Ms Miles had a motor vehicle accident where her car was hit from behind. After this she had “burning” pain in the right arm and right side of the face. She trialled Lyrica but it had side effects. Due to her ongoing symptoms Dr Darwish undertook a C6/7 discectomy and fusion on 10 December 2010. It helped somewhat.
Ms Miles stated there was no back pain after the 2010 accident.
She returned to work in 2014.
In 2016 Ms Miles had a second accident where her car was rear-ended. This caused worsening of her neck and right arm pain. This led to her having a C5/6 anterior discectomy and fusion with Dr Sheridan on 15 December 2017. This improved her symptoms although they did remain in the neck and right arm – she said the surgery improved her by “30%”.
Ms Miles has had osteoarthritis of both hips and had a right total hip replacement on 5 April 2018. The right hip surgery was on a background of having septic arthritis and requiring multiple surgeries in 1986.
Right chondromalacia patella has also been diagnosed.
Ms Miles has been diagnosed with ulcerative colitis and has had trials of immunotherapy without success. She now manages this with diet.
She has atrophic gastritis and is on vitamin B12 injections.
Prior to the accident, Ms Miles was using Panadol Osteo three times a day. Just before the accident, she started using CBD oil (medicinal CBD approved by the Therapeutic Goods Administration).
History of the accident
On 30 April 2022, Ms Miles was the driver of a 2012 Jeep Grand Cherokee. She approached a roundabout to go left. She was wearing a seat belt. There were no other occupants. She was hit from behind by a Ford Raptor. Air bags in her vehicle did not deploy. She was not thrown around inside the car.
Ms Miles exited her vehicle and took photos of the accident. She exchanged details with the other driver. No ambulance attended the scene.
She went on to pick up her son from a sleepover and took him to his soccer game.
Ms Miles remembered having heightened anxiety for the rest of the day. Her vehicle was subsequently repaired.
History of symptoms and treatment following the accident
Ms Miles consulted her usual GP Dr El Ayoubi on 16 May 2022 and gave a history of the accident. Dr El Ayoubi recorded: “She was stopped at a roundabout and hit from behind, not a big hit but enough to trigger symptoms. Has had an increase in nerve pain and increase in headaches and PTSD flare up.”
Ms Miles lodged an application for personal injury benefits on 16 May 2022. She reported:
“Since the current accident an increase in my symptoms have occurred of nerve pain (particularly of the right arm and right thumb), radiculopathy mainly right leg and right arm, headaches, lower back pain and bilateral elbow pain and increase in bruxism and insomnia.”
On 20 May 2022, Dr El Ayoubi completed a Certificate of Capacity when he diagnosed “Whiplash and lumbar back pain.”
In the post-accident AHRR No. 1 dated 24 May 2022 a physiotherapist diagnosed “whiplash” and lumbar pain. Pre-existing cervical and lumbar spine pathology was noted. There was no shoulder complaint at that stage.
Ms Miles was reviewed by Associate Professor Mark Sheridan for her ongoing neck and back pain and radicular symptoms.
Ms Miles underwent an ultrasound of the right shoulder on 6 December 2022 which showed: - “Supraspinatus tendinosis with partial-thickness tear - Subacromial bursitis - Early degenerative changes are noted in the AC joint.
A/Prof Sheridan suspected that her right arm pain could be related to the right shoulder.
Ms Miles reported that after the accident the neck and right arm pain returned to their pre-accident severity, but the low back pain continued and that her right shoulder felt “different”.
Ms Miles had ongoing low back pain and underwent a L5/S1 microdiscectomy on 11 November 2023 performed by A/Prof Sheridan. Prior to the surgery she had right hip region pain and numbness of the lateral three toes on the right. The surgery was covered by her insurer.
Ms Miles was reviewed by Dr Jonathan Herald on 19 April 2023. She was referred for an x-ray and MRI of the right shoulder, which was done on 17 May 2023. Dr Herald reviewed her on 2 June 2023 and noted the MRI findings of both a partial thickness tear with an os acromiale and biceps tendinitis most likely secondary to a SLAP lesion.
Dr Herald recommended Ms Miles consider selective injections to determine where most of the pain was coming from and ultimately concluded it may be worth considering a shoulder arthroscopy, subacromial decompression, rotator cuff repair and biceps tenodesis.
Ms Miles went on to have this procedure on 10 December 2024 – this was covered by her insurer. She reported that her right shoulder is “better” after the procedure.
Details of any relevant injuries or conditions sustained since the accident
On 30 September 2022, Ms Miles underwent a CT guided L5/S1 transforaminal steroid injection. It was recorded that Ms Miles “had mild vasovagal episode after procedure but was proactively managed with short bed rest and reassurance”.
On 18 October 2022, Ms Miles underwent a CT guided left L5/S1 transforaminal steroid injection. It is following this procedure that the Claimant reported falling after alighting from transport that had picked up her up from the hospital following the procedure and returned her home. Her leg gave way from under her.
Ms Miles reported to the Assessors that she could not recall scans after the fall from the car. However, it is noted she had an MRI scan of the cervical spine on 2 November 2022. The clinical history included “Recent fall onto her right arm and shoulder with whiplash effect onto the neck. Ongoing pins and needles in right arm radiculopathy.” The scan showed mild degenerative spondylosis of the cervical spine. The cervical spinal cord signal intensity is normal.
Ms Miles also had an ultrasound right shoulder on 6 December 2022 which showed supraspinatus tendinosis with partial-thickness tear; subacromial bursitis and early degenerative changes in the AC joint.
Current symptoms
Ms Miles complains of a constant burning pain in her right shoulder and upper arm. She complains of neck pain and right arm pain, which is like what she had at the time of the accident.
Ms Miles complains of lower back pain. She indicates that her lower back pain had improved following surgery, and it is manageable. She has occasional “sciatica pain” in her legs, often after prolonged standing.
Ms Miles is now able to carry out household chores such as cooking but must be careful and avoid prolonged standing.
Ms Miles has returned to work, 30 hours per week, as a counsellor in a rehabilitation service.
Current and proposed treatment
She takes Panadol Osteo three times daily with Nurofen as required.
She has regular vitamin B12 injections.
CLINICAL EXAMINATION
General presentation
Ms Miles is 155cm in height and weighs 80kg.
She has a normal gait.
Cervical spine (cervicothoracic)
There was no tenderness in the cervical spine.
There was no muscle guarding.
Ms Miles had full flexion of the cervical spine, but extension was 1/3 normal. Rotation was 2/3 normal to the right and left. Lateral flexion to the right was 1/3 normal and to the left 2/3 normal. There was dysmetria.
There were two anterior scars related to previous fusion surgeries. The scars were well healed and barely visible.
There was no wasting in the upper limbs – the circumferences are outlined below:
Circumference (cm)
Right
Left
Upper arm
33
32
Forearm
27
25
The 2cm difference in circumference of the right forearm can be explained by the claimant’s right hand dominant difference.
Ms Miles reported a “burning” sensation in the whole right arm with duller sensation over the whole arm, not in any radicular pattern
Reflexes were equal and normal.
Power was equal and normal on the right and left.
Lumbar spine (lumbosacral)
There was a 4.5cm scar in keeping with the L5/S1 microdiscectomy. It was well healed.
There was no tenderness in the lumbar spine.
Range of movement was limited to ½ normal in all planes. There was no dysmetria.
Lower limb reflexes were normal and symmetrical.
Sciatic nerve root tension signs were negative.
There was no weakness in the lower limbs. There was a subjective sensory change over the lateral three toes of the right foot.
There was no wasting – the right calf circumference was 41.5cm and the left was 41cm.
Upper extremity
There was burning pain involving the whole right upper limb including over the right shoulder.
There was restricted range of movement bilaterally as outlined below. A goniometer was used to assess the range of motion. The ranges were consistent with repetition.
Shoulder Movement
Right (degrees)
Left (degrees)
Flexion
100
160
Extension
50
50
Adduction
30
50
Abduction
90
160
Internal rotation
50
90
External rotation
60
90
Impingement signs were positive on the right side.
Comments on consistency
She was cooperative and consistent.
DIAGNOSIS AND CAUSATION
In considering causation the Panel refers to the test for causation set out in the Guidelines. However, the Panel also notes in Briggs v IAG Limited Trading as NRMAInsurance Wright J reminded us that the relevant legal test in relation to causation does not require scientific certainty.[9] His Honour stated at [70]-[72]:
[9] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.
“70. This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce [2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):
‘138 Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:
“An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference”.’
71. The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 as follows, at 242:
‘... it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.’
72. Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].”
The question is whether the accident could have caused or contributed to the alleged injury having regard to clauses 6.6 and 6.7 of the Guidelines and s 5D of the Civil Liability Act, 2022 (CLA). Section 5D of the CLA provides:
“5D General principles
(ii) A determination that negligence caused particular harm comprises the following elements:
(a)That the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b)That it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).”
Lumbar spine
The accident occurred on 30 April 2022. The Panel notes that in his statement dated 23 June 2022 the insured driver Mr Yakomov denied there was any impact at all between his vehicle and that of the claimant. However, he still followed the claimant around the corner and stopped.
In her Application for personal injury benefits dated 16 May 2022 Ms Miles reported lower back pain and, in her statement, dated 3 June 2022 she said she felt the impact at the back of the car and her body was pushed forward and moved forward. On 16 May 2022 Dr El Ayoubi reported the claimant’s involvement in the accident noting she conceded it was not a big hit, but she alleged it was enough to trigger her symptoms. Whilst there was no complaint about lower back pain at that time the Panel notes on 20 May 2022, three weeks post-accident Dr El Ayoubi reported lumbar spine pain with burning down the right leg.
Medical Assessors Gorman and Gray found Ms Miles to be a credible historian and having regard to the consistency of her complaint the Panel prefers the account of the claimant over that of the insured driver and is satisfied there was an impact between the insured’s vehicle and the rear of the claimant’s vehicle. The Panel is fortified in this conclusion where the insured driver stopped following the collision, noting if there had been no collision at all he would not, in all likelihood, have stopped.
The Panel has considered the competing biomechanical reports of Dr McIntosh and Mr McDonald. Both Mr McDonald and Dr McIntosh agreed the likely change in velocity of the claimant’s vehicle was less than the documented thresholds for the onset of thoraco-lumbar injury in rear end motor accidents. Where there is no suggestion by Ms Miles of a significant impact the Panel prefers the opinion of Mr McDonald who stated in the absence of any collision event recorded by the Airbag Control Module of the claimant’s vehicle the change in speed caused by the collision was around 8km/hr or less. Mr McDonald reported the threshold for lumbar injury is in excess of 20km/h in the absence of a pre-existing condition. However, Ms Miles had a long-standing pre-existing degenerative condition in her lumbar spine and in those circumstances the Panel accepts the impact was sufficient to cause injury to the lumbar spine.
Having concluded that the accident could have contributed to the claimant’s pre-existing lumbar spine condition the next question is whether it, in fact, did so.
The Panel has reviewed the pre-accident medical records. Other than a pre-consultation questionnaire, completed on 18 June 2019 for Mrs Griffiths, chiropractor where Ms Miles confirmed she suffered from backache, the last recorded complaint relating to the lumbar spine was by Dr Soh on 7 January 2018. In the four years pre-accident the claimant primarily sought treatment for complaints relating to her cervical spine and right hip.
Ms Miles had symptoms related to the lumbar spine immediately after the accident. These were reported to her GP less than three weeks after the accident. In the absence of pre-existing complaints pertaining to the lumbar spine in the four years pre-accident and the claimant’s reported symptoms shortly after the accident and consistently thereafter the Panel finds the accident did contribute to the claimant’s lumbar spine condition.
In considering the diagnosis of the claimant’s lumbar spine condition the Panel notes the following:
·an MRI of the lumbosacral spine performed on 17 May 2010 was reported to have revealed posterior disc bulges at L4/5 and L5/S1:
·on 23 January 2021 Dr Darwish reported complaints of lower back pain without radicular symptoms;
·on 9 January 2012 Dr Wallace reported persisting pain at the L4/5 spinous processes;
·an MRI of the lumbar spine performed on 10 July 2013 revealed degenerative disc disease;
·on 7 January 2018 Dr Sor reported the claimant had chronic lower back pain and investigations had revealed a L5/S1 disc prolapse;
·an MRI of the lumbar spine performed on 28 May 2022 reported bilateral degenerative facetal arthropathy at both the L5/S1 and L4/5 levels.
·the whole-body scan of 21 July 2022 disclosed only mildly active discovertebral arthritis at L5/S1;
·after assessing the claimant Medical Assessor Cameron issued a certificate dated 17 February 2023. He found no evidence of radiculopathy and concluded the claimant had sustained an exacerbation of chronic soft tissue problems in the lumbar spine;
·an MRI scan of the lumbar spine of 24 April 2023 reported a minor disc bulge at L4/5 and a small broad-based posterior disc protrusion, not causing significant canal stenosis;
·on 27 March 2024 Dr Dryson reported he was unable to confirm radiculopathy in the lumbar spine.
·the Panel considers the certificate of Medical Assessor Cameron dated 5 April 2025 to be equivocal, in that Medical Assessor Cameron labelled the injury to the lumbar spine a ‘soft tissue injury’ and concluded that there had been deterioration of lumbar spinal disease since his earlier assessment. Whilst he found the right ankle jerk ‘was reduced’, and straight leg raising (SLR) on the right was ‘less than the left’ there was no reference to repeat exam findings to confirm consistency and extent of the reduced ankle jerk in accordance with the Guidelines. Further, Medical Assessor Cameron did not report that the ‘reduced’ right SLR confirmed to the Guidelines. Whilst he found increased circumference of the right lower extremity likely to be related to oedema the Panel notes the claimant underwent an L5/S1 microdiscectomy on 10 November 2023 and that the surgical effects including soft tissue oedema may take considerable to time to resolve.
·on examination soon after the examination by Medical Assessor Cameron, Medical Assessors Gorman and Gray did not identify signs to confirm radiculopathy.
Where Ms Miles has not been able to establish radiculopathy, the injury sustained by the claimant to the lumbar spine is a soft tissue injury.
Right shoulder
The Panel has considered the competing biomechanical reports of Dr McIntosh and Mr McDonald. Dr McIntosh concluded there was no mechanism for upper limb injuries in the accident whilst Mr McDonald only addressed the possibility of injury to the lumbar spine.
In any event regardless of whether there was any mechanism for injury to the right shoulder in the accident there is no record of complaint relating to the right shoulder before the fall on 18 October 2022.
The right shoulder was not referenced in the Application for personal injury benefits dated 16 May 2022. Whilst Ms Miles reported that her right shoulder felt “different” after the accident there were no complaints pertaining to the right shoulder, where Dr El Ayoubi, Assoc Prof Sheridan and Ms Kira Ferry of Pinnacle Rehab only reported complaints relating to the neck and right arm.
Ms Miles informed Dr El Ayoubi on 24 October 2022 that on 18 October 2022 she fell on her right arm and shoulder and thigh resulting in ongoing pain in the right shoulder. The history recorded on the MRI of 2 November 2022 was of a “recent fall onto her right arm and shoulder with whiplash effect”. Further investigation included an ultrasound of the right shoulder performed on 6 December 2022 which revealed a partial-thickness tear of the supraspinatus, subacromial bursitis and bursal impingement together with early degenerative changes. An MRI of the right shoulder on 17 May 2023 revealed a high-grade partial thickness supraspinatus rotator cuff tear, a SLAP lesion and an Os acromiale.
The Panel finds there was no discrete injury to the right shoulder in the motor vehicle accident given the minor nature of the collision, the likely mechanism of the accident and the lack of complaint relating to the right shoulder until after the fall on 18 October 2022.
The next question is whether causation extends to the injury sustained as a result of the fall on 18 October 2022.
The claimant submits she sustained injury to the right shoulder in the accident and does not address the question of consequential injury sustained as a result of the fall on 18 October 2022. However, the insurer does address that issue submitting that it would not be appropriate for the insured’s liability to extend to any injury sustained as a result of the claimant falling after exiting a vehicle some eight months post accident.
The fall on 18 October 2022 occurred after the claimant underwent a left lumbar spinal cortisone injection on referral from Assoc Prof Sheridan. In her email to the insurer dated 19 October 2022 Ms Miles stated she had experienced numbness and weakness in her left leg following the injection and after she got out of the car her left leg went out from under her, and she fell. Mr Sisopha, the driver of the vehicle which had transported the claimant home confirmed Mr Miles fell after she got out of the car and she had informed him her leg went numb.
The Panel finds the cortisone injection was a reasonable and necessary treatment for the accident-related soft tissue injury to the lumbar spine where it was not only treatment but also a diagnostic tool and where the injection was performed on the recommendation of A/Prof Sheridan, the claimant’s treating neurosurgeon. The Medical Assessors agree that the local anaesthetic in such an injection can cause leg weakness persisting for up to 24 hours.
The Panel finds Ms Miles sustained injury to the right shoulder caused by her left leg giving way after undergoing a cortisone injection into her lumbar spine on 18 October 2022.
The Panel finds Ms Miles sustained a high-grade partial thickness supraspinatus rotator cuff tear, and aggravation of a SLAP lesion as a result of the fall on 18 October 2022.
Applying the principles as to causation set out in clauses 6.5 to 6.7 of the Guidelines in accordance with Briggs the Panel finds the injury to the right shoulder was materially contributed to by the accident where the facts establish that the claimant sustained consequential injury to the right shoulder as result of a fall occasioned due to treatment for the accident-related lumbar spine injury.
Having regard to the provisions of s 5D of the CLA the Panel is satisfied that factual causation has been established in that the negligence of the insured was a necessary condition of the occurrence of the harm where the consequential injury to the right shoulder was caused by a fall resulting from treatment undergone by the claimant for her accident-related lumbar spine injury. The Panel also finds that it was appropriate for the scope of the insurer’s liability to extend to the harm caused to the claimant given the nature of the injury sustained and the need for further treatment.
It is clear from the Guidelines that the Panel should have regard to common law principles. The Panel notes the decision of the High Court in Mahony v J Kruschich (Demolitions) Pty Ltd is a leading authority for the proposition that the original tortfeasor remains liable for an injury and for any subsequent treatment unless the conduct of the subsequent treatment provider can be categorised as grossly negligent.[10] The Panel finds that common law principles also support a finding that the consequential injury to the right shoulder as a result of a fall was occasioned due to treatment for the accident-related lumbar spine injury.
[10] Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37
Accordingly, the Panel finds the injury to the right shoulder was caused by the accident.
Injury to the right arm
Also referred for assessment was an injury described as right arm – aggravation of pre-existing radiculopathy.
Following the accident Ms Miles reported a flare up of right arm pain and weakness.
Ms Miles informed Medical Assessors Gorman and Gray that her neck and right arm pain subsequently returned to their pre-accident severity.
On examination the Panel found no abnormalities in the right upper limb.
The following injuries WERE caused by the motor accident:
·Lumbar spine – soft tissue injury;
·Right shoulder – rotator cuff tear;
·Right arm – soft tissue injury (resolved).
PERMANENT IMPAIRMENT
Permanent impairment is defined in the AMA 4 Guides (page 315) as follows:
“Permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment.
A permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment.”
Lumbar spine
Ms Miles sustained a soft tissue injury to the lumbar spine caused by the accident.
The Panel considers the claimant’s lumbar spine condition has stabilised and is unlikely to change substantially and by more than 3% in the next year with or without medical treatment. It is now more than three years since the accident.
The determination as to permanent impairment is made in accordance with the AMA 4 Guides and the Guidelines.
Clause 6.21 states the evaluation should only consider the impairment as it is at the time of the assessment.
The claimant has ongoing lumbar pain and has had a discectomy and decompression. There was no radiculopathy apparent on examination by Medical Assessor Gorman and Gray, the only residual effect was a sensory change in the lateral three toes of the right foot.
The Panel assesses a diagnosis-related estimate (DRE) category II which in accordance with table 6.7 of the Guidelines and table 72 on page 3/110 of the AMA 4 Guides equates to 5% WPI based on the claimant’s ongoing pain and the non-verifiable radicular symptoms in the right foot in the L5 distribution. Right arm
The Panel found the accident caused a soft tissue injury to the right arm which had resolved. The claimant’s symptoms are now the same as they were before the accident. Her reflexes and power were equal and normal.
The Panel finds there is no assessable impairment to the right arm arising from the accident.
Right shoulder
The Panel finds the permanent impairment of the right shoulder is not static, well stabilised and likely to change.
The claimant underwent surgery namely a right shoulder arthroscopy, rotator cuff repair, acromioplasty and biceps tenodesis under the care of Dr Herald on 20 December 2024.
On 12 March 2025 Dr Herald reported the claimant had forward elevation to 100 degrees, abduction to 30 degrees and internal rotation to the waist. She still had tenderness over the greater tuberosity. Dr Herald reported there was a lot of inflammation and whilst the rotator cuff repair was healing it was not completely healed.
When he assessed the claimant on 18 March 2025 in the context of the associated threshold injury dispute in matter No. R-M28979/24-02-1 Medical Assessor Cameron did not assess range of motion at the right shoulder in view of the recent recommendations from the treating surgeon.
When she was examined by Medical Assessors Gorman and Gray on 8 May 2025 range of motion of the right shoulder was assessed as flexion 100°, extension 50°, adduction 30°, abduction 90°, internal rotation 50°, and external rotation 60°.
The Panel notes an improvement in the assessment of abduction between the assessment undertaken by Dr Herald on 12 March 2025 and the findings of Medical Assessors Gorman and Gray on 8 May 2025, some two months later.
The Panel is of the view there is likely to be further improvement in range of motion of the right shoulder where it can take up to 12 months for a full recovery from shoulder reconstruction surgery. The Panel considers the impairment of the right shoulder is not stable where it may change by more than 3% in the next year
Accordingly, the Panel declines to assessment permanent impairment of the right shoulder.
The Panel recommends that the claimant be re-examined in December 2025 to assessment the permanent impairment of the right shoulder.
CONCLUSION
The Panel revokes the certificate of Medical Assessor Alexander Woo dated 26 October 2024 and issues a new certificate determining that the following injuries caused by the motor accident give rise to a WPI of 5%:
·Lumbar spine – soft tissue injury
·Right arm – soft tissue injury (resolved).
The Panel finds the injury to the right shoulder is not stable and not capable of assessment.
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