Allianz Australia Insurance Limited v Miles (No 3)
[2025] NSWPICMP 565
•1 August 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Allianz Australia Insurance Limited v Miles (No 3) [2025] NSWPICMP 565 |
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); right arm; right shoulder; consequential injury; claimant suffered injury in a motor vehicle accident; Medical Assessor (MA) certified soft tissue injury to the right shoulder was not a threshold injury and injury to the right arm was not caused by the accident; insurer sought review; Held – claimant did not sustain frank injury to right shoulder in accident; claimant sustained soft tissue injury to lumbar spine in accident; claimant underwent cortisone injection for injury to lumbar spine; as a result of the injection the claimant’s leg gave way causing her to fall and sustain rotator cuff tear of the right shoulder; causation satisfied under clauses 6.5 to 6.7 of the Motor Accident Guidelines as per Briggs v IAG Limited Trading as NRMA Insurance, section 5D of the Civil Liability Act 2002, and common law; Mandoukas v Allianz Australia Insurance Limited considered; injury to right shoulder within meaning of section 1.4(1); injury to right shoulder was a non-threshold injury; accident caused soft tissue injury to right arm (now resolved); injury to right arm threshold injury; MAC revoked. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION ASSESSMENT OF THRESHOLD INJURY Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate of Medical Assessor Cameron dated 5 April 2025 and determines the following injury caused by the accident is a threshold injury: · right arm – soft tissue injury (resolved). 2. The Review Panel determines the following injury caused by the accident is a non-threshold injury: · right shoulder – rotator cuff tear. |
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 4.4 of the MAI Act provides that no damages may be awarded to an injured person if the person’s only injuries resulting from the motor accident were threshold injuries.
History of threshold injury disputes
The claimant commenced proceedings in the Personal Injury Commission (Commission) in respect of the threshold injury dispute on 31 October 2022. This constitutes a medical assessment matter pursuant to Schedule 2, cl 2(e) of the MAI Act. A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.
The claimant sought assessment of the following injuries:
· cervical spine – neck injury – whiplash;
· lumbar spine – lower back injury – disc bulging in lumbar spine and annular fissure at L4/5, symptoms of radiculopathy – right arm weakness and numbness;
· head – post-concussion syndrome;
· psychiatric condition – anxiety, depression and post-traumatic stress disorder, and
· lung – respiratory sleep disorder.
On 17 February 2023, Medical Assessor Cameron certified that the accident caused soft tissue injuries to the cervical spine and lumbar spine which are threshold injuries for the purposes of the Act. He did not accept that the subject accident caused a head injury.
After Medical Assessor Cameron’s certificate had been issued, the claimant sought to have her right shoulder injuries included in the assessment. The claimant’s solicitors then lodged an Application for Further Assessment alleging a deterioration in the lumbar spine injury and requested an assessment of a right shoulder tear.
By email dated 13 September 2023 the claimant requested an Internal Review regarding the right shoulder “given it was a misdiagnosis”.
By letter dated 19 September 2023 the insurer declined to conduct an Internal Review advising it did not have the power to conduct an internal review in relation to liability of a body part.
On 3 October 2023 the President’s delegate, being satisfied that there was additional relevant information or deterioration of the injury such as to be capable of having a material effect on the outcome of the previous assessment determined that the claimant’s Application would be referred for further Medical Assessment of the following injuries:
· cervical spine – soft tissue injury;
· lumbar spine – soft tissue injury;
· head – post concussion syndrome, and
· right shoulder – partial thickness tear supraspinatus tendon.
In the meantime, the parties received Medical Assessor Hong’s certificate dated
18 August 2023. Medical Assessor Hong determined that the claimant sustained a non-threshold psychological injury. Given Medical Assessor Hong’s findings the claimant’s solicitors discontinued the Application for Further Assessment.The insurer subsequently lodged an Application for Further Assessment in respect of psychological injury. This Application was accepted and on 7 February 2025 Medical Assessor Hong certified that the claimant had sustained a threshold psychological injury as a result of the accident.
Having regard to the finding that the psychological injury was a threshold injury the claimant lodged an Application for Further Assessment in respect of the threshold injury dispute in relation to injuries to the right shoulder, lumbar spine and right arm (aggravation of pre-existing radiculopathy).
On 10 January 2025, a delegate of the President determined that only the lumbar spine injury would be referred for further assessment. With respect to the right arm and right shoulder, the delegate stated:
“Given these injuries did not form part of the medical disputes referred to the Medical Assessor for the purposes of the previous assessment above, it follows that the injuries cannot be referred again for further assessment under s 7.24 of the MAI Act.
A new application referring these additional injures for the medical assessment is required, should the claimant wish to refer these injuries for medical assessment. The Commission may refer assessment of these injuries and the lumbar spine to the same medical assessor.”
The insurer submits the right shoulder was not referred for assessment as part of the claimant’s original application for assessment of a threshold dispute dated 1 October 2022. The insurer notes the reference to “injury to right arm: aggravation of pre-existing radiculopathy” concerns the cervical spine which was the subject of the original threshold injury dispute.
The threshold injury dispute in respect of the right arm and right shoulder was referred to Medical Assessor Ian Cameron who issued a certificate dated 5 April 2025. It is that certificate which is the subject of this review.
DOCUMENTS CONSIDERED BY THE REVIEW PANEL
The Review Panel (Panel) issued a Direction to the parties on 16 June 2025. The insurer was directed to upload to the portal an indexed and paginated bundle of all documents sought to be relied upon in the review by 23 June 2025. On 23 June 2025 in accordance with this Direction the solicitor for the insurer uploaded to the portal a bundle of documents paginated from pages 1 to 767 (insurer’s documents).
The claimant was directed to upload to the portal an indexed and paginated bundle of all documents relied upon in the review by 30 June 2025. On 26 June 2025 in accordance with this Direction the solicitor for the claimant uploaded to the portal a bundle of documents paginated from pages 1 to 206 (claimant’s documents) and a further bundle paginated from pages 1 to 398 (claimant’s further documents).
On 3 July 2025 the insurer uploaded to the portal a bundle of additional documents paginated from pages 1 to 59 including a bone scan dated 21 July 2022, clinical notes of A/Prof Sheridan and clinical notes of Dr Darwish (insurer’s additional documents).
THRESHOLD INJURY – STATUTORY PROVISIONS
The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented to on 28 November 2022 with various amendments commencing on 1 April 2023. From 1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.
Any reference in these reasons to “minor injury” is a reference to a “threshold injury”.
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “psychological or psychiatric injury that is not a recognised psychiatric illness”. Section 1.6(2) of the MAI Act defines a “soft tissue injury” as:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a threshold injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the MAI Act. Version 9.3 of the Guidelines commenced on 6 December 2024 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 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
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 Woo (permanent impairment) 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 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, and
· 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 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 purposes of the MAI Act:
· right shoulder – soft tissue injury.
He certified the following injury was not caused by the accident:
· right arm – aggravation of pre-existing radiculopathy.
The injuries referred for assessment were as follows:
· arm injury to right arm: aggravation of pre-existing radiculopathy, and
· injury to right shoulder: tear.
Medical Assessor Cameron reported the claimant did not hit her head but she recalled right arm pain, lower back pain, and pain in both legs. Later headaches developed and there was also blurred vision.
Ms Miles was referred to Dr Herald, orthopaedic surgeon and he performed an arthroscopic right shoulder rotator cuff repair on 20 December 2024. He reported recent follow up with Dr Herald who reported a subscapularis tear and continuing inflammation.
He concluded:
“With reference to the right shoulder there was demonstrated rotator cuff tear. Given the mechanism of injury and the clinical findings this is associated with the motor vehicle crash in a way that is more than negligible way. Therefore, it is not a threshold injury.
With reference to the right arm there is no consistent findings to suggest that the pre-existing radiculopathy has been aggravated. It is Ms Miles' belief that the treating neurosurgeon did not find this and suspected a right shoulder problem for which there has been subsequent surgery.”
REVIEW PROCEDURE
The insurer lodged an application for review of the medical assessment. On 11 June 2025 the delegate of the President 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).[1]
[1] Insurer’s documents p 17.
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.[2]
[2] 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 26 June 2025 the Panel agreed an examination was not necessary where the claimant had recently been examined by Medical Assessors Gorman and Gray on 8 May 2025 in respect of an associated dispute as to permanent impairment.
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
Submissions dated 5 March 2025
The insurer provided submissions dated 5 March 2025 in relation to the dispute as to threshold injury.[3]
[3] Insurer’s documents p 59.
The insurer disputes the claimant sustained any discrete injury to her right shoulder given the minor nature of the collision as evidence by the claimant’s description, the damage to the vehicles as depicted in the photographs and the opinions of Dr McIntosh and
Mr McDonald.It is submitted that when the claimant first sought treatment it was for an aggravation of her previous neck and right shoulder/arm symptoms. Ms Garzaniti of IOH reported the claimant informed her she did not experience any immediate symptoms, but her history of chronic pain left her feeling apprehensive and exacerbated her post-traumatic stress disorder.
The insurer submits the first complaint of discrete shoulder symptoms did not occur until her consultation with Harrington Park Medical Practice (HPMP) on 24 October 2022. On that occasion she 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 subsequently referred for an ultrasound of the right shoulder. This was performed on 6 December 2022 and revealed supraspinatus tendinosis with partial thickness tear, subacromial bursitis and early degenerative changes at the AC joint.
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. In that regard the insurer notes:
· at a consultation with HPMP 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 HPMP on 13 June 2017 the claimant complained of ongoing pain in her neck and both shoulders, particularly on the left, and
· at a consultation with Dr Coroneos on 7 June 2017 the claimant described pain in the right outer shoulder.
The insurer submits that it is accepted that an acute rotator cuff tear is associated with the immediate onset of pain. The records are not consistent with the claimant having experienced right shoulder symptoms for many months following the accident.
The insurer submits the MRI scan performed on 17 May 2023 suggested that any tear was of a degenerative nature. The insurer notes that the scan revealed bony impingement, partly related to an os acromiale (a developmental defect). It also revealed subacromial bursitis, cuff tendinosis without a tear, tendinosis of the intraarticular portion of the LHB with the superior labrum appearing degenerate and frayed with a probable small tear.
The insurer notes that even Medical Assessor Woo did not accept the claimant sustained an acute injury to the right shoulder in the accident.
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 cls 6.5 and 6.7 of the Guidelines or s 5D of the Civil Liability Act 2022 (CLA).[4] 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).”
[4] Insurer’s documents pages 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.
The insurer approved the surgery to the right shoulder following receipt of Medical Assessor Woo’s certificate, noting it was binding on the parties until such time as a Review Panel issues a certificate which supersedes it.
However, the insurer maintains its position that the claimant did not suffer any injury to the right shoulder as a result of the accident.
If it is accepted that the claimant sustained an injury to the right shoulder in the accident the insurer submits the injury would be limited to a soft tissue injury which is a threshold injury.
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 Medical 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 notes:
· at consultation at HPMP on 19 February 2021 it was recorded that the claimant had experienced a recurrence of cervical radiculopathy. She described pins and needles in the arm and hand as well as cervicogenic headaches. She was referred to Dr Laurent Wallace and Dr Vishal Patel for opinions on pain management;
· an MRI of the cervical spine performed on 28 May 2021 noted a history of C5/6 fusion with left sided C3/4 radicular symptoms. It reportedly revealed normal postsurgical change at the site of the fusion, and
· at consultation at HPMP on 22 October 2021 the claimant complained of a flare up of pain, headaches and radiculopathy. She reported that she was homeschooling, working from home, her mother was struggling from dementia, and she was withdrawing from university. On the same date Dr El Ayoubi wrote a letter in support of the claimant withdrawing from her studies. He noted that the claimant was suffering from a flare up of her neck and nerve pain and appeared to have developed an adjustment disorder due to the lockdown and issues with her mother who was suffering from dementia.
The insurer notes the evidence indicated the accident was a very minor collision.
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 noted Medical Assessor Cameron did not find any evidence of radiculopathy in the upper limbs on examination and determined the accident had aggravated pre-existing cervical spondylosis.
The insurer also notes that Medical Assessor Woo reported “There were no non-verifiable radicular complaints related to the subject accident”.
The insurer disputes that cervical radiculopathy has been confirmed following the accident and if it is accepted that radiculopathy has been present post-accident it was related to the pre-existing injuries.
The insurer submits if the claimant sustained an injury to the cervical spine and by extension to the right arm then it was limited to a soft tissue injury which is a threshold injury.
Submissions dated 24 April 2025
The insurer filed submissions dated 24 April 2025 in support of the application for review of the certificate of Medical Assessor Cameron dated 5 April 2025.[5]
[5] Insurers documents p 12.
The insurer submits Medical Assessor Cameron failed to address the arguments raised by the insurer relating to causation, noting the absence of any contemporaneous shoulder complaints immediately after the accident and the approximate gap of six months before any complaint was made relating to the right shoulder.
The insurer submits it is widely accepted that an acute rotator cuff tear is associated with an immediate onset of pain.
Further, the insurer notes the claimant’s pre-accident complaints of right shoulder symptoms dating back to 2008.
The insurer notes the MRI report of the right shoulder performed on 17 May 2023 suggested that any tear was of a degenerative nature.
The insurer notes that in his certificate dated 31 January 2023 in regard to a threshold dispute concerning the cervical and lumbar spine Medical Assessor Cameron noted the following in respect of the lumbar spine:
“…the mechanism of injury in the motor vehicle crash would not be expected to transmit major force to the lumbar spine.”
However, when assessing causation for the right shoulder Medical Assessor Cameron noted the following:
“Given the mechanism of injury and the clinical findings this is associated with the motor vehicle crash in a way that is more than negligible.”
The insurer submits whilst it is open to the assessor to come to a different conclusion he is required to provide a clear explanation as to why he has done so. It is submitted that Medical Assessor Cameron did not do so.
Claimant’s submissions
The claimant provided undated submissions in response to the insurer’s application for review.[6]
[6] Claimant’s documents p 6.
The claimant notes that it is left to the discretion of the Assessor to decide the amount of weight, if any, that is placed upon the evidence provided by the parties. Medical Assessor Cameron noted that there was a demonstrated rotator cuff tear and that given the mechanism of the injury and clinical findings, found it was associated with the accident in a way that was more than negligible.
The claimant provided supplementary submission in respect of the threshold injury dispute.[7]
[7] Claimant’s documents p 11.
The claimant submits she sustained an injury to the right shoulder in the accident. The claimant refers to the ultrasound of the right shoulder undergone on 6 December 2022, the subacromial cortisone injection on 13 March 2023 and the report of Dr Herald dated
19 April 2023 where he reported the claimant had been complaining since the accident of pain in the right shoulder, but it was treated as coming from her neck injury. The claimant notes that Dr Herald concluded she had suffered a rotator cuff tear and possible SLAP lesion in her right shoulder which he thought had occurred at the time of the accident but was not diagnosed due to the pre-existing neck surgery and radiculopathy symptoms.The claimant submits that Dr Dryson found a reduced range of movement in the right shoulder consistent with the MRI scan findings of subacromial bursitis, long head of biceps tenodesis and a labral tear.
It is noted Medical Assessor Woo accepted the partial thickness tear of the right shoulder was caused by the accident.
In relation to the right arm the claimant notes that on 20 May 2022 the clinical notes of Harrington Park Medical Practice recorded the claimant was “struggling with right arm pain/radiculopathy” following the accident.
The claimant submits Medical Assessor Woo found the claimant had suffered an aggravation of pre-existing radiculopathy as a result of the accident.
THE MEDICAL EXAMINATION
Ms Miles was examined by Medical Assessor David Gorman and Medical Assessor Rhys Gray at the medical suites at the Commission on 8 May 2025 in respect of the associated permanent impairment dispute. 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 four 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 Ahmed 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 A/Prof 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”.
Associate Professor 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 her up from the hospital following the procedure and returned her home. Her leg gave way from under her.
Ms Miles reported to the Medical Assessors that she could not recall scans after the fall from the car. However, it is noted she had an MRI 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 of the 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 present.
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.
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
Ms Miles was cooperative and consistent throughout the medical examination by the Medical Assessors.
DIAGNOSIS AND CAUSATION
In Briggs v IAG Limited trading as NRMA Insurance[8] his Honour Justice Wright stated at [35]:
[8] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of injury
6.5An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
6.6Causation 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.
6.7There 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.”
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 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).”
Injury to the right shoulder
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 the claimant 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 did move 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 the claimant 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. 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,
A/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 A/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 informed him her leg went numb.The Panel considered the question of causation of injury to the lumbar spine in the associated matter of R-M28979/24-02-2. Having considered the competing biomechanical reports of Dr McIntosh and Mr McDonald the Panel preferred 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 8kmph or less. Whilst Mr McDonald reported the threshold for lumbar injury is in excess of 20kmph that was in the absence of any pre-existing condition. The Panel notes Ms Miles had a long-standing pre-existing degenerative condition in her lumbar spine and accepted 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 Panel considered whether it, in fact, did so. The Panel noted that other than a reference to backache in a questionnaire completed on 18 June 2019 for
Mrs Griffiths, chiropractor there was no other record of complaint pertaining to the lumbar spine since the claimant was reviewed by Dr Soh on 7 January 2019. Where Ms Miles reported symptoms relating to the lumbar spine immediately after the accident and in the absence of complaints relating to the lumbar spine in the four years pre-accident the Panel found the accident did contribute to the claimant’s lumbar spine condition.In matter No R-M28979/24-02-2 the Panel concluded the claimant had sustained a soft tissue injury to the lumbar spine where there was no evidence that at any time since the accident the claimant had demonstrated two or more clinical signs of radiculopathy in accordance with the Guidelines. Whilst A/Prof Sheridan reported a worsening disc protrusion with nerve compression consistent with the claimant’s back and right leg pain sufficient to recommend the claimant undergo an L5/S1 microdiscectomy he did not document two or more signs of radiculopathy in accordance with cl 5.8 of the Guidelines.
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
Dr 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 the claimant 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 does not accept the insurer’s submission that the supraspinatus tear referred to in the ultrsound was an incidental finding where there had been no complaint of pain in the right shoulder for at least four years pre-accident and where there was an immediate onset of pain reported by the claimant following the fall.
The Panel finds the claimant 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 cls 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 occasioned by the 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.[9]
[9] Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37.
Injury to the right arm
Also referred for assessment was an injury described as right arm – aggravation of pre-existing radiculopathy.
The claimant had a pre-accident history of complaint relating to the right arm which was apparently referred pain from the pre-existing cervical spine condition.
However, following the accident the claimant reported a flare up of right arm pain and weakness. The claimant referenced injury to the right arm in the Application for personal injury benefits and on 20 May 2022 Dr El Ayoubi recorded a complaint of right arm pain.
Ms Miles informed Medical Assessors Gorman and Gray that her the neck and right arm pain subsequently returned to their pre-accident severity.
On examination Medical Assessors Gorman and Gray found no abnormalities in the right upper limb.
The Panel finds as a result of the accident the claimant sustained a soft tissue injury to the right arm which has now resolved.
THRESHOLD INJURY
Injury to the right shoulder
Notwithstanding causation is established the question of injury arises.
Section 1.4(1) of the MAI Act provides the following definition of injury:
“injury means personal or bodily injury and includes—
(a) pre-natal injury, and
(b) psychological or psychiatric injury, and
(c) damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses.”
In Mandoukas v Allianz Australia Insurance Limited Stern JA considered the definition of injury in respect of the removal of bone during a foraminotomy procedure.[10] Discussion ensued as to the meaning of the word “injury” and her Honour noted guidance was provided in the context of workers compensation legislation where:
“the ‘ordinary sense’ of the word ‘injury’ has been held to mean ‘some definite or distinct ‘physiological change’ or ‘physiological disturbance’ for the worse which, if not ‘sudden’, is at least ‘identifiable’’ as per Military Rehabilitation and Compensation Commission v May.”[11]
[10] Mandoukas v Allianz Australia Insurance Limited [2024] NSWCA 71.
[11] Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468; [2016] HCA 19 at [75] (Gageler J); see also at [45] (French CJ, Kiefel, Nettle and Gordon JJ).
Whilst counsel for Mr Mandoukas argued that the foraminotomy procedure fell within the definition of injury where it had brought about an alteration in the claimant’s body by reason of someone else having wronged them, Stern JA, without expressing a concluded opinion, stated at [54]:
“In circumstances in which, as here, the particular surgical procedure is not contended to have been other than reasonably necessary, and the Court was not taken to any evidence showing an identifiable detrimental impact upon Mr Mandoukos’ symptoms or functioning arising from the foraminotomy procedure, it may be doubted whether this submission should be accepted. That is particularly so given that the scheme of the Act is to provide treatment, care, compensation and financial support to those injured in motor accidents.”
The Court considered the definition of minor (threshold) injury in s 1.6 of the MAI Act, Regulation 4(1) of the Regulation and the Guidelines. Stern JA also noted that s 4.4 of the MAI Act provides no damages may be awarded if the person’s only injuries resulting from the motor accident were minor injuries and concluded as follows:
“61. It is apparent from these provisions that the Act contemplates that two or more “injuries” may result from one motor accident. It will necessarily be a matter of fact and degree in each case whether what results from a motor accident is properly regarded as one, or more than one, injury. A range of matters may be relevant to, but not necessarily determinative of, that question. Such matters would include the nature of any harm or damage, the identifiable physiological change or disturbance relied upon, whether it is physical or psychiatric/psychological, the body part(s) involved (if any), and whether the harm or damage was sustained by reason of the immediate impact of the motor accident or from some later event, such as medical or surgical treatment or a fall, which itself resulted from the motor accident.”
As to whether the foraminotomy procedure could be a personal or bodily injury Stern JA stated at [99]:
“99. In any event, even on the assumption that the removal of bone during the foraminotomy procedure could be a personal or bodily injury as defined in the Act (a question which, as set out at [54] above, it is unnecessary and inappropriate for this Court to determine) my provisional view is that that would be a “different” injury from the injury to Mr Mandoukos’ cervical spine sustained at the time of the motor accident. The foraminotomy procedure occurred some 18 months after the motor accident. It involved a mechanism, consensual surgical removal of bone, entirely separate from the impact of the motor accident. That is so even though it was performed by reason of Mr Mandoukos’ symptoms resulting from the motor accident. It is also of a different character from an assault or impact upon the body consequent upon the forces of the motor accident. Ultimately, however, if Mr Mandoukos seeks referral of a medical dispute as to whether the foraminotomy procedure has the consequence that the cervical spine injury he sustained in the motor accident is a minor injury, that question can be assessed by a medical assessor.”[12]
[12] Mandoukas v Allianz Australia Insurance Limited [2024] NSWCA 71.
However, where the question for determination in Mandoukas involved the nature of the dispute referred for assessment the comments of Stern JA referred to in these reasons are obiter and not binding.
However, in the absence of any other guidance and having regard to the comments of Stern JA as they appear at paragraph [61] of the judgment the Panel notes that the fall sustained by the claimant caused her harm which was caused by treatment which itself resulted from the motor vehicle accident.
The Panel finds the injury sustained by the claimant to the right shoulder, namely, the high-grade partial thickness supraspinatus rotator cuff tear, and aggravation of a SLAP lesion was an injury within the meaning of s 1.4(1) of the MAI Act.
The right shoulder injury sustained by the claimant was not a soft tissue injury where the rotator cuff tear was a complete or partial rupture of tendons, ligaments, menisci or cartilage. The injury to the right shoulder was a non-threshold injury.
Injury to the right arm
The Panel finds the soft tissue injury to the right arm has resolved.
The soft tissue exacerbation of right arm pain is a threshold injury.
CONCLUSION
The Panel revokes the certificate of Medical Assessor Cameron dated 5 April 2025 and determines the following injury caused by the accident is a threshold injury:
· right arm – soft tissue injury (resolved).
The Panel determines the following injury caused by the accident is a non-threshold injury:
· right shoulder – rotator cuff tear.
OutcomeDocumentSignee
OutcomeDocumentSignature
0
4
0