Allianz Australia Insurance Limited v Spiroski
[2025] NSWPICMP 349
•20 May 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Allianz Australia Insurance Limited v Spiroski [2025] NSWPICMP 349 |
CLAIMANT: | Igor Spiroski |
INSURER: | Allianz Australia Insurance Limited |
REVIEW PANEL | |
MEMBER: | Belinda Cassidy |
MEDICAL ASSESSOR: | Mohammed Assem |
MEDICAL ASSESSOR: | Les Barnsley |
DATE OF DECISION: | 20 May 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; insurer’s application for review under section 7.26 of Medical Assessment Certificate (MAC) that right shoulder injury not threshold injury; causation issue; insurer relied on pre-accident right shoulder ultrasound showing tear therefore accident did not cause tear; marked up copy of ultrasound report in treating surgeon’s file suggested error by radiologist and left not right shoulder was investigated; Held – no pre-accident right shoulder complaints therefore tear caused by accident; tear was non-threshold injury; no issue of principle; MAC confirmed. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Confirms the certificate of Medical Assessor Shahzad dated 18 September 2024 in respect of his determination of the threshold injury dispute. 2. Certifies that the claimant’s right shoulder injury caused by the motor accident on A statement setting out the Panel’s reasons for the assessment is included with this certificate. |
STATEMENT OF REASONS
INTRODUCTION
Igor Spiroski was involved in a motor accident on 8 March 2022.
The claimant says he injured his neck, back and right shoulder in the accident and made a claim for statutory benefits with Allianz, the third-party insurer of the vehicle that Mr Spiroski says caused his accident. In due course Mr Spiroski made a claim for lump sum compensatory damages, also against Allianz.
A medical dispute about whether any of the claimant’s injuries were threshold injuries or not arose in connection with both claims and a dispute about whole person impairment (WPI) arose in the damages claim. The claimant referred both those disputes to the Personal Injury Commission (the Commission) for assessment in a single set of proceedings (M21750/24).
On 18 September 2024, Medical Assessor Shahzad determined Mr Spiroski’s right shoulder injury was not a threshold injury. Medical Assessor Shahzad determined the claimant’s WPI in respect of all his injuries was 6% which is, of course, not greater than 10%.
The insurer was dissatisfied with the threshold injury result and on 11 October 2024 lodged an application with the Commission seeking a review of the Medical Assessor’s decision. The claimant has not sought a review of the WPI assessment.
On 25 November 2024, Ms Wigan a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review and on 2 December 2024 the President’s delegate convened this Panel to conduct the Review.
LEGISLATIVE FRAMEWORK
Jurisdiction
Mr Spiroski’s claim is governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act). This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the MAI Act, there are some disentitling provisions and limits to the amount and extent of benefits and compensation available. One of these restrictions is that if the only injuries sustained by the injured person are “threshold” injuries, the injured person cannot receive statutory benefits beyond 26 weeks after the accident (for accident like Mr Spiroski’s which occurred before 1 April 2023) and they cannot recover damages.
Threshold injury
A threshold injury is defined in s 1.6(1) of the MAI Act as a “soft tissue injury”. Section 1.6(2) of the MAI Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
If a person injured in a car accident sustains soft tissue injuries only, then, unless one of those soft tissue injuries falls within the exclusion contained in s 1.6(2) (highlighted in italics in the paragraph above), the injured person’s statutory benefits cease in accordance with ss 3.11 and 3.28 of the MAI Act.
Dispute resolution
If there is a dispute about whether an injured person’s injuries are threshold injuries or not, that matter is declared a medical assessment matter which may be referred to the Commission for determination.[1]
[1] Schedule2, cl 2(e) in the MAI Act.
Chapter 7, Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Shahzad’s, further medical assessments and the Review of medical assessments by this Panel.[2]
[2] Sections 7.20, 7.24 and 7.26 of the MAI Act.
ASSESSMENT UNDER REVIEW
The Medical Assessor examined the claimant on 21 August 2024 and issued his certificate on 18 September 2024. The Medical Assessor confirms at [2][3] that he was asked to assess the following injuries:
(a) cervical spine;
(b) lumbar spine, and
(c) right shoulder.
[3] The numbers in square brackets are a reference to the section number in the Medical Assessor’s reasons.
Medical Assessor Shahzad summarises the claimant’s and insurer’s submissions at [4] and [5] which suggests he was aware of the issue of causation.
At [6] the Medical Assessor lists the documents in the application and reply and says he has “considered the additional / late documents”.
The history recorded by Medical Assessor Shahzad at [8] includes a childhood motor accident (broken leg) and another car accident on 4 April 2014 in which the claimant injured his neck and arm with cervical disc problems at C4/5, C5/6 and C6/7. The Medical Assessor also has a history of lumbar disc issues in 2018 with treatment provided to L3/4 and L4/5.
Other medical issues include diabetes, bariatric surgery, gastric sleeve surgery, left shoulder pain (an orthopaedic surgeon was consulted) and inguinal hernia repair.
The Medical Assessor records at [9] the mechanism of the accident. The claimant was said to be driving at 50kmph when he T-boned a car approaching an intersection from the right. Air bags did not deploy, and the claimant was wearing a seatbelt.
At [10] the Medical Assessor documents the claimant’s treatment. Mr Spiroski was taken to hospital by ambulance and was discharged the next day. He attended upon his GP and was given conservative treatment and the claimant returned to work.
The claimant had an MRI of the right shoulder on 24 May 2022 which revealed rotator cuff tendinopathy with full thickness tears of various tendons.
On 6 December 2022, Dr Guirgis, orthopaedic surgeon diagnoses a musculoligamentous strain in the neck, noted C6/7 radiculopathy and post-traumatic subacromial impingement in the shoulder joint and full thickness tears.
The claimant reported his current symptoms, documented at [12] as spasms, shooting pain in the right shoulder and neck and difficulty lifting over shoulder height. He was taking painkillers, seeing his doctor and having physiotherapy and undertaking home exercises.
On examination of the neck, it is recorded at [14], there was tenderness and guarding but no clinical sign of radiculopathy in the upper limbs.
Left shoulder motion was normal, but the right shoulder motion was restricted by about one third on most movements and there was impingement but no instability.
There was tenderness and guarding in the lumbar spine, but no clinical sign of radiculopathy found.
Medical Assessor Shahzad noted at [18] contemporaneous diagnoses at hospital of whiplash, right shoulder pain, bruising under the ribs on the right side, intermittent numbness in the right fingers. He found at [19] the claimant sustained a cervical spine, lumbar spine and right shoulder injury in the accident. He found at [20] the right shoulder injury was not a threshold injury on the basis that the claimant had a full thickness tear of the supraspinatus confirmed through an MRI scan.
Medical Assessor Shahzad assessed at [23] the following impairments:
(a) neck – 0% based on a DRE category I impairment;
(b) lower back – 0% based on a DRE category I impairment, and
(c) right shoulder – 6% based on a restriction of range of movement.
ISSUES FOR DETERMINATION
Insurer’s submissions
The insurer’s submissions address the Medical Assessor’s decision about causation of the right shoulder injury in both the threshold injury as well as the WPI dispute.
The insurer says that the Medical Assessor noted some of the claimant’s pre-accident conditions but did not refer to the pre-existing right shoulder problems referenced by the insurer in its original submissions.
The insurer takes issue with the reasons provided by the Medical Assessor saying he has found a right shoulder non-threshold injury due to the full-thickness tear of the supraspinatus without engaging with the issue of causation of that tear.
The insurer’s original submissions were extensive and included a summary of the claimant’s pre-accident medical records in respect of the claimant’s neck, lower back and shoulders. If the insurer’s summary of the records is correct, the Panel notes there are no right shoulder complaints highlighted but plenty of left shoulder complaints recorded in 2021.
Claimant’s submissions
The claimant argues that the Medical Assessor cited and summarised the insurer’s submissions and was aware of the pre-accident right shoulder complaints but says it is open to the Medical Assessor to make his own independent findings which he has done in an “extremely thorough and comprehensive” document.
The claimant submits that the Medical Assessor is not required to document all the submissions and summarise all the material but is to set out his “actual path of reasoning” which the claimant says he has done.
Procedural matters
The Panel issued directions to the parties on 10 December 2024. The Panel noted the insurer challenged only the causation finding in respect of the right shoulder injury and asked the claimant to confirm whether the claimant challenged any of the Medical Assessor’s findings concerning the neck and lower back.
The Panel also directed the parties to provide a bundle of relevant documents. The insurer by 17 January 2025 and the claimant by 31 January 2025.
Responses
The claimant responded to the directions on 16 December 2024 saying, “we are of the view that the Panel should only consider the [review] in respect of the right shoulder injury.”
The claimant lodged a bundle of additional documents (19 pages).
Panel preliminary conference
The Panel met on 13 February 2025 and reported to the parties the next day.
The Panel noted the two medical assessment matters referred for assessment and that the claimant had only challenged the threshold injury assessment. The Panel noted the claimant’s concession concerning the claimant’s neck and lower back injuries and that the only injury the Panel was required to consider was the claimant’s right shoulder and causation of the rotator cuff pathology.
The Panel referred to some of the documentation and raised the following queries:
(a) whether the 28 July 2021 ultrasound of the claimant’s right shoulder was actually a scan of the left shoulder. Clarification with the radiological practice was requested;
(b) whether there were any earlier reports from Dr Bodel, and
(c) whether the claimant’s airbags deployed (ambulance report) or did not (Medical Assessor Shahzad’s history).
Responses from the parties
The insurer responded on 24 February 2025 noting that there were no evident right shoulder complaints in the two years before the accident.
The claimant responded on 28 March 2025 as follows:
(a) documentation confirms and the parties agree that the radiology of 28 July 2021 was of the left shoulder and not the right;
(b) reports from Dr Bodel were provided from 1992, 1994 and 1995, and
(c) the parties agreed that his airbags did deploy.
REVIEW OF THE EVIDENCE
Because of the claimant’s concession that his neck and lower back are threshold injuries, much of the evidence relating to those parts of his body do not need to be canvassed. The sole issue in dispute between the two parties is causation of the right shoulder injury and whether the full thickness tear occurred in the accident.
Claim form and claim documents
The claim form was signed and dated 5 April 2022. Mr Spiroski describes his injuries as “winding, sore shoulder, neck and lower back”.
While on the first page of the form he denies any previous CTP claim, he does acknowledge on page 4 “as well as the non-effected areas prior I have a torn rotating cuff in left shoulder that is more painful”.
The claimant says on page five that he had one day off work.
Dr Oreb’s diagnosis in the certificate of capacity and fitness that accompanied the claim form is of “post traumatic mechanical derangement – cervical and thoracolumbar spine and right shoulder”.
The Panel notes the photographs of the interior of the claimant’s car showing the driver’s side airbag deployed but not the steering wheel airbag. The claimant gave a statement to police on 16 April 2022, and he says “As soon as we collided, the airbags in my car deployed which caused a sharp pain shoot into my arm …”
Dr Bodel’s records – pushbike accident - 1989
Dr Bodel saw the claimant for medico-legal purposes following the claimant’s push bike accident at the age of 11. In 1992, he noted the claimant fractured his left wrist and right leg. In terms of the left upper limb there is no impairment noted and “only very minor discomfort with more strenuous activity and there is no residual deformity”.
By the time of an examination in 1994 there was “no residual deformity in the left forearm” and in 1995 the claimant had some ongoing impairment in the right leg but there is no mention of any left arm issues.
Treating medical records and medico-legal reports – 2014 accident
Treatment records – 2014 accident
Handwritten records from Dr Oreb have been produced. Before the claimant’s 2014 accident, there are references to several injuries and issues but, as far as the Panel can ascertain no references to right or left shoulder pain.
On 28 January 2014 the claimant reported neck pain and again on 8 April 2014. The pain on this occasion was said to be severe in the neck, radiating to the right shoulder and down the arm. The claimant had an MRI of his cervical spine, and the history is of “severe pain in right shoulder”.[4] The scan notes disc degeneration at three levels and with left sided findings near the left exiting C6 and C7 nerve roots.
[4] Page 217 of the insurer’s bundle.
While there are multiple similar entries documenting left arm symptoms there does not seem to be any allegation of a frank or specific left shoulder injury. All of the shoulder and arm symptoms appear to be neck related.
Dr McGee-Collett, neurosurgeon wrote to Dr Oreb on 15 July 2014[5] regarding the neck pain with left arm symptoms.
[5] Page 237 of the insurer’s bundle.
The claimant’s lower back was mentioned on 4 December 2014.
The claimant was from time-to-time prescribed Endone and there was concern expressed by Dr Oreb about addiction however the claimant continued to work with the pain throughout 2014 to 2017. At that time the complaints were mainly of neck pain and some back pain but few instances of shoulder or arm complaints.
Dr Davies again wrote to Dr Oreb on 16 March 2015.[6] He refers to the claimant’s April 2014 accident, some minor pre accident neck discomfort but severe left sided neck, scapula and upper limb pain. The symptoms described are all left sided. Dr McGee-Collett had offered surgery. Dr Davies raised the prospect of a two-level anterior cervical decompression and hybrid fusion / disc arthroplasty. He suggested conservate treatment for the time being and advised he would review the claimant again.
[6] Page 233 of the insurer’s bundle.
On 28 July 2015 Dr Davies wrote to Dr Oreb[7] stating the claimant’s radicular arm pain had resolved (he does not say which arm). The claimant had developed pain in the right side of his neck which resolved, and he had some “intermittent tingling in the index finger and the thumb of his right hand only”. He was having only occasional Endone. He thought the claimant would be able to avoid surgery but suggested a program of upper body and neck exercises.
[7] Page 229 of the insurer’s bundle.
The lower back becomes more prominent in 2018 and Endone and Voltaren were prescribed.
The claimant attended Yvonne Fowler physiotherapist in 2018 and 2019 for his lower back pain.
On 4 June 2020 Mr Spiroski attended with panic attacks and left shoulder symptoms after lifting at work. An ultrasound was requested with the prospect of a rotator cuff tear.
Back pain emerged again in early 2021 and on 7 May 2021 the claimant’s left shoulder was painful, and the note reads “[ultrasound] bursitis”. Left shoulder pain was said to be severe on 28 May 2021 and the left shoulder condition was considered in June and July.
On 6 May 2021 Mr Spiroski attended his physiotherapist for left shoulder pain which had come on over the last two months. There were signs of impingement and weakness of the scapula stabilisers. His shoulder pain was worse on 28 June 2021, and it was noted he was working long hours. Left shoulder pain and restriction continued in July 2021.
The claimant had a CT scan of his left shoulder on 4 June 2021[8] showed a normal glenohumeral joint, early degenerative changes in the acromioclavicular joint and a “small amount of gas”.
[8] Page 17 of the additional bundle.
The claimant had an ultrasound of his shoulder on 28 July 2021 showing a “complete” retracted tear of the supraspinatus tendon and mild AC joint arthropathy, bursal thickening and impingement. While the report said this was of the right shoulder. The claimant has provided documentation[9] and the parties now agree that this was a left shoulder ultrasound.
[9] Page 15 of the additional bundle.
On 9 August 2021 Dr Oreb noted the ultrasound revealed a complete tear and the claimant was referred to Dr Petchell. On 18 November 2021 Dr Oreb reports he had a “chat [with]
Dr Petchell” and that there was a left shoulder full thickness tear and arthroscopic cuff repair appears to have been considered, and post-surgery rehabilitation discussed. It is not clear whether this is a note about Dr Oreb’s chat with Dr Petchell or a report of the claimant’s chat with Dr Petchell.On 29 January 2022 the claimant’s rotator cuff (the note does not say whether right or left) was said to be painful, he was working with the pain and stressed with the pain.
On 5 February 2022 the claimant attended Yvonne Fowler Physiotherapy with left shoulder rotator cuff tear, neck and lower back pain. Later in February only the neck and lower back are mentioned on two occasions although on 23 February 2022 the shoulder was mentioned but said to be better.
Medico-legal reports and assessments 2014 accident
The insurer in respect of the 2014 claim (NRMA) retained Dr Home, occupational physician and he wrote a report dated 19 January 2015. He records a “full range of active motion at both shoulders” and that after the accident the claimant had neck pain with the development of left C6 radicular symptoms in the left hand.
Dr Smith, orthopaedic surgeon provided a report to NRMA dated 29 January 2015. Dr Smith also has a history of neck pain with left sided symptoms in the shoulder and arm. Range of motion in both shoulders was normal.
Dr Jones, rehabilitation physician provided a report to the claimant’s solicitors dated
25 February 2016. She records neck pain and left arm symptoms and numbness in the thumb, index and middle fingers of both hands worse on the right than in the left. She records absent triceps jerks on both sides and decreased sensation to pinprick testing in the previously mentioned digits of both hands.Dr Home saw the claimant again on 21 April 2016. The claimant reported neck pain, worse on the left side with symptoms of numbness now intermittent on both hands the left more than the right. There was again, no restriction of shoulder motion.
Medical Assessor Kumar of the State Insurance Regulatory Authority’s Medical Assessment Service certified the claimant’s impairment from the 2014 was not greater than 10% on the basis of a 5% WPI for the neck. He assessed both shoulders noting they were normal with symmetrical contours and had a full and equal range of motion. Impingement test was negative.
Treating records and reports – 2022 accident
Ambulance attended the accident scene, treating Mr Spiroski and taking him to hospital. The report suggests the claimant was travelling at 50kmph when he hit another car. The report suggests his airbags deployed although the claimant self-extricated. The claimant complained of right lower rib pain worse on breathing and palpation.
The claimant attended Dr Oreb on 9 March 2022. He reported the accident the previous day “I hit other vehicle at 50-60km stop sign removed by council”. The claimant reported upper quadrant pain, chest pain on the right side, his neck and back were painful and he had right shoulder pain. The claimant attended again on 14 March 2022 as the pain worsened over the weekend. An MRI and physio were discussed and the doctor noted “need claim number”. It is not clear whether there was a further attendance on 23 March 2022 but “accident notification form” is noted.
On 13 May 2022 the claimant attended again noting the condition was ongoing. The claimant had neck, back and right shoulder pain, right hand numbness, chest and abdominal pain.
Mr Spiroski was referred for an MRI of his cervical spine and right shoulder.The claimant complained of neck and right shoulder pain was working suitable duties with pain and did not want surgery due to his job. It was noted “heavy lifting etc rotator cuff repair will fail.”
The claimant had an MRI of his right shoulder at the request of Dr Oreb on 24 May 2022[10] which confirmed the presence of rotator cuff tendinopathy and the full-thickness tear of the posterior third insertional fibres of the supraspinatus and other damage to the fibres. There was evidence of mild sub-acromial-subdeltoid bursitis and long head biceps tenosynovitis. The claimant also had an MRI of his cervical spine on 24 May 2022 which reports “pain in neck, numbness right arm”.[11]
[10] Page 102 of the insurer’s bundle.
[11] Page 219 of the insurer’s bundle.
Records from Yvonne Fowler Physiotherapy include two Allied Health Recovery Request (AHRR) forms.[12] The first dated 7 June 2022 refers to pain in both shoulders, neck, upper and lower back. In terms of the right shoulder, it says “constant sharp pain on anterior aspect of shoulder, shooting down, all AROM limited … very tender to palpation [anterior] and superior aspect. Left shoulder, all AROM limited by pain, previous RC injury flared up after MVA.”
[12] Page 261 and 265 of the insurer’s bundle.
The corresponding notes indicate treatment was provided to the lumbar and thoracic spine and to both shoulders.
The second AHRR is dated 5 July 2022 is in similar terms. There had been some progress with the right shoulder isometric exercises, but the claimant was unable to do TheraBand exercises.
Further attendance occurred on 8 July 2022 with neck and back and shoulder pain and the claimant was referred to Dr Guirgis. He continued to work with pain.
On 15 August 2022, Dr Sandroussi wrote a medical certificate [13]that the claimant “has been doing lost of heavy lifting at work and he has developed a direct inguinal hernia in the left groin”.
[13] Page 224 of the insurer’s bundle.
On 12 September 2022 the claimant attended complaining of neck, back and right shoulder pain and he was having analgesia and physio.
On 14 November 2022 the claimant reported left shoulder pain and locking and was tender in the left acromioclavicular joint and Mr Spiroski had shooting pain into his left shoulder and left arm with a burning sensation ongoing.
Dr Guirgis, orthopaedic surgeon wrote to Dr Oreb on 6 December 2022[14] which there are some “blanks” (indicated with a #) he records “post traumatic symptoms of impingement in the shoulder joint” and refers to MRI evidence of a full thickness tear which is clearly a reference to the right shoulder. The pain chart completed by the claimant clearly highlights the right shoulder and not the left.
[14] Page 106 of the insurer’s bundle.
There are references to more than one attendance on Dr Guirgis and the claimant’s stress with pain and medications. Hernia complaints are also frequent in 2022 and 2023.
In May and June 2023 there appear to be complaints of right shoulder pain. On 3 July 2023 there are complaints of left and right shoulders being painful and the claimant was to be seen by Dr Bodel. The notes end on 31 July 2023.
There is a discharge summary report from Liverpool health service[15] concerning an admission on 29 April and discharge on 30 April 2023 following a motor vehicle crash “with no injuries identified”. The claimant rear ended a parked car having apparently dozed off while driving. He says he hit at 40kmph and complained of pain in shoulders on both sides, that the pain was chronic and unchanged. A Glasgow Coma Scale result of 13 was recorded. The corresponding note in Dr Oreb’s records (8 May 2023) records soft tissue injuries only.
[15] Page 203 of the insurer’s bundle.
Dr Petchell
The claimant has provided records from Dr Petchell, orthopaedic surgeon.[16] The claimant was referred on 9 August 2021 for left shoulder pain with an ultrasound showing a complete tear and a need for surgery.
[16] Page 11 of the claimant’s bundle.
Dr Petchell reported to Dr Oreb on 12 October 2021. The claimant was 43 years of age and noted as a right-hand dominant chef. The claimant reported left shoulder pain “with no specific history of injury”. The pain could be severe, and the claimant was taking Targin.
There was no wasting but focal tenderness on examination. Shoulder motion was recorded as follows:
Left Right
Flexion 100 180
Extension No record No record
Abduction 100 180
Adduction 30 40
External rotation 40/70 60/90
Internal rotation to T10 to T9
There were some impingement signs in both shoulders but more so in the left. He reviewed the CT and ultrasound. He requested an MRI and review.
The shoulder ultrasound and CT scans are included in the records, but no further attendances or reports noted. While the 4 June 2021 CT scan clearly states it is a left shoulder scan, the ultrasound on 28 July 2021 suggests it is of the right shoulder. However, the word “right” has been crossed out and “left” handwritten upon it and after checking with the radiology firm, the parties now agree this is a scan of the left shoulder and not the right.
Medico-legal reports
The claimant relies on a report from Dr Bodel, orthopaedic surgeon dated 11 October 2023.[17] Dr Bodel takes a history of the accident noting the airbags did not deploy, the claimant was wearing a seat belt and felt “winded” after the accident. Police and ambulance attended, and the claimant was aware of neck, right shoulder and lower back pain and was taken to hospital. He has a history of the claimant’s early treatment and one or two days off work.
[17] Page 4 of the claimant’s bundle.
Dr Bodel had a history of the claimant’s past medical history and his previous motor accident noting that he had examined the claimant for the insurer in 1992, 1994 and 1995. Dr Bodel has a history of the claimant’s 2018 (or 2019) accident and records the claimant was off work for six weeks.
Dr Bodel records that Mr Spiroski has ongoing pain in his neck, right shoulder and arm as well as his lower back. Activities can aggravate his pain. He was taking Targin every day and Panadol.
Dr Bodel observed guarding and restricted neck motion. While the left shoulder was normal, the right shoulder had restricted range of motion. Three was impingement but no instability.
There was no sign of radiculopathy in either the upper or lower limbs. Guarding was observed with restricted back motion.
Dr Bodel diagnosed a soft tissue injury to the neck and back and a full thickness tear of the supraspinatus caused by the accident. In terms of impairment assessment, he diagnosed 5% for the neck and back on the basis of dysmetria and guarding but no radiculopathy and 6% for the right shoulder.
RE-EXAMINATION FINDINGS – MEDICAL ASSESSORS BARNSLEY AND ASSEM
Mr Spiroski attended the re-examination with Medical Assessors Barnsley and Assem on
13 May 2025. The following paragraphs document their findings.
Pre-accident medical history and relevant personal details
Mr Spiroski is a 46-year-old, right-hand dominant man who lives with his wife and nine-year-old twin children in Western Sydney. He completed Year 10 and subsequently worked as an apprentice chef, progressing to become Head Chef at Doltone House where he worked full-time for 13 years.
Past medical and accident history
On 4 April 2014, the claimant was involved in a motor accident that resulted in injuries to the left side of his neck and arm. Imaging from that period confirmed C4/5, C5/6, and C6/7 disc degeneration, along with a left posterior paracentral osteochondral bar indenting the thecal sac and C6 nerve root. There was also left uncinate hypertrophy at C6/7 causing exit foraminal narrowing and minimal impingement of the left C7 nerve root. He received a corticosteroid injection at C6/7 and underwent physiotherapy.
In 2018 the claimant had lumbar spine CT-guided injections (L4/5) and he said that he continued to experience intermittent lower back discomfort, particularly with physically demanding tasks.
He experienced left shoulder pain after a lifting incident at work and a CT scan on
4 June 2021 revealed early AC joint degeneration, and an ultrasound on 28 July 2021(initially reported as a right shoulder scan but subsequently corrected) confirmed a complete retracted supraspinatus tear, bursal thickening, and AC joint arthropathy in the left shoulder. He was reviewed by Dr Jeffrey Petchell on 12 October 2021, who documented significant restriction and impingement in the left shoulder, with a clinically unremarkable right shoulder. Arthroscopic repair was discussed but not pursued due to occupational constraints.Mr Spiroski said he had gastric sleeve surgery in June 2020 and reported a weight reduction from 175kg to 79kg, leading to the resolution of previously diagnosed type 2 diabetes. He had bilateral inguinal hernia repairs in January 2023.
He reports that his right shoulder was asymptomatic before the accident, though he cannot definitively recall whether it had ever been imaged before.
History of the motor accident
On 8 March 2022, at approximately 9.00pm, Mr Spiroski was driving a Kia Picanto home from work when he entered an unmarked intersection in Croydon Park. His vehicle collided with a Mazda 2 sedan approaching from the right, resulting in a T-bone collision. He was transporting two passengers at the time, both of whom experienced only transient musculoskeletal complaints.
Mr Spiroski recalls that the side curtain airbag deployed upon impact and struck the right side of his head and shoulder. He described his car as a small, compact car with little room between his right arm and shoulder and the driver’s side panels of the car. He was wearing a seatbelt. Emergency services attended and transported him to Canterbury Hospital.
History of symptoms and treatment following the motor accident
At Canterbury Hospital, Mr Spiroski was recorded as presenting with pain in the right shoulder, chest wall, neck, and lower back, as well as intermittent numbness in his right fingers. He described to us the pain as localised to the right deltopectoral groove, radiating posteriorly when severe. No fractures or structural abnormalities were identified on imaging. He was discharged with analgesics and referred for physiotherapy.
The claimant said he consulted his general practitioner, Dr Oreb, on 9 March 2022 due to worsening pain. On 14 March 2022, he continued to report symptoms affecting the right shoulder, cervical and lumbar regions, along with bilateral fingertip numbness. He was prescribed Endone and referred for imaging.
Mr Spiroski said he had an MRI of the right shoulder on 24 May 2022. We note this revealed rotator cuff tendinopathy, a full-thickness tear of the posterior third of the supraspinatus tendon, subacromial-subdeltoid bursitis, and long head biceps tenosynovitis. A concurrent cervical MRI revealed degenerative disc disease but no acute herniation.
Mr Spiroski began physiotherapy at Yvonne Fowler Physiotherapy in March 2022. Treatment was ceased by the insurer in September 2022, but Mr Spiroski says he has continued with home-based rehabilitation.
He recalled consulting an orthopaedic surgeon who advised surgery followed by six months’ recovery, but he declined due to the invasive nature of the procedure and work obligations. He has continued full-time employment as a chef but reported modifying tasks and relying on others for any heavy lifting. In early 2023, he took three months off to reduce his reliance on Targin, with the guidance of pain specialist Dr Andrew Patterson. He successfully transitioned to Norspan patches.
Details of any relevant injuries or conditions sustained since the motor accident
He presented to Liverpool Hospital on 29 April 2023, after he collided with a parked trailer at a speed he could not recall. He said he fell asleep while driving. He complained to the hospital of pain in both shoulders and in his trapezius but advised that the pain was unchanged from his usual pain.
Current symptoms
Mr Spiroski reports continued pain in the right shoulder worsening with overhead or repetitive movement. He describes the pain as burning and radiating from the deltopectoral groove to the posterior shoulder, sometimes extending down the right arm to the third and fourth digits. His symptoms are aggravated by his work and can wake him at night. He reports chronic neck stiffness, persistent low back tightness, and episodic tingling in both hands.
Physically, he avoids manual household tasks and has modified work duties. He wears a lumbar support brace at work, which improves posture. He is currently maintained on Norspan patches and Panadol but is not having physiotherapy due to financial constraints.
Examination
Mr Spiroski appeared well and in no apparent physical distress. He sat comfortably throughout the interview. He mobilised with a normal gait and was cooperative during the examination. He was informed at the commencement of the examination not to engage in any manoeuvre that he could not tolerate, or which might risk further injury and to advise us if he felt pain. His height was recorded at 172cm and his weight at 75kg.
Inspection of the right shoulder revealed some loss of the normal shoulder contour with mild atrophy of the supraspinatus musculature. Posture was otherwise normal, and there was no deformity noted. Active range of motion in the right shoulder was accompanied by pain behaviour in the form of grimacing and vocalisation. The range observed is documented (in degrees) as follows:
Movement
Right Shoulder
Left Shoulder
Flexion
100
150
Extension
70
60
Abduction
80
160
Adduction
40
60
Internal Rotation
70
90
External Rotation
60
60
Neither of Mr Spiroski’s shoulders display a normal range of movement. The uninjured left shoulder has restrictions in flexion, abduction and external rotation. If the Panel was assessing WPI on those measurement he would have a current upper extremity impairment of 5% (3% WPI). His left shoulder is more significantly impaired, and the measurements suggest a current upper extremity impairment of 15% (8% WPI).
Consistency
We brought Mr Spiroski’s attention to his current range of motion which appeared to have substantially reduced since he was previously assessed by Dr Shahzad on 21 August 2024. Mr Spiroski reported that his condition had worsened since the beginning of the year, which led to him having a three-month period of leave from work. He also stated that he was admitted to St John of God Hospital in mid-February 2025 for a three-week inpatient period to manage pain, anxiety, and detoxify from his intake of Targin as a result of which he has found he cannot move his shoulder as much.
CONSIDERATION OF THE ISSUES
Did the claimant injure his right shoulder in the accident on 8 March 2022?
The claimant concedes his neck and lower back injuries are threshold injuries and do not need to be assessed. The Panel considers this concession appropriate.
The insurer challenged Medical Assessor Shahzad’s finding that the motor accident caused a right shoulder injury noting the alleged previous right shoulder complaints.
The Panel notes the accepted test of causation of injury is two-fold:
(a) could the mechanism of the accident cause or materially contribute to the alleged injury to the right shoulder, and
(b) did the accident cause or materially contribute to the alleged injury to the right shoulder.
The claimant was the driver of his motor vehicle wearing a seatbelt over his right shoulder. The mechanism of the accident was a right sided impact to the car. The mechanism of injury was that the claimant was struck by a deploying side curtain airbag in the narrow cabin of his Kia Picanto. It is the clinical judgment of the medical members of the Panel that the mechanism of the accident could have caused a right shoulder injury.
The question remains whether the claimant did sustain an injury to his right shoulder in the accident.
Mr Spiroski reported immediate burning pain in the right shoulder and was transported by ambulance to Canterbury Hospital, where right shoulder pain was noted. Following the claimant’s investigation into the July 2021 ultrasound (which the parties agree was not of the right shoulder and was of the left) the insurer has conceded that there were no pre-accident right shoulder complaints in the two years prior to the motor accident. The Panel has reviewed the documents and determined that all pre-accident imaging and clinical notes reference the left shoulder. The examination by Dr Petchell on 12 October 2021 focused on symptoms reported in the left shoulder. Examination at that time confirmed a clinically unremarkable right shoulder with a full range of motion.
The Panel is satisfied on the basis of no pre-accident symptoms in the right shoulder, the contemporaneous complaints of right shoulder pain, as well as the history give at the re-examination that Mr Spiroski did injure his right shoulder in the accident.
What was the injury to the claimant’s right shoulder?
The Medical Assessors note that the MRI scan on 24 May 2022, revealed a full-thickness tear of the posterior supraspinatus tendon, subacromial-subdeltoid bursitis, and long head biceps tenosynovitis. There was no evidence of fatty infiltration or muscle atrophy in this scan, which would typically suggest chronic or longstanding pathology. It is the clinical judgment of the Medical Assessors that the MRI findings are consistent with an acute or subacute tear and therefore are suggestive of recent trauma.
The claimant made prompt complaints about right shoulder symptoms, he has a significant restriction of movement, he has altered his work duties to accommodate his symptoms, and he has clinically significant muscle atrophy around the shoulder girdle.
The medical members of the Panel are satisfied that the full-thickness tear in the claimant’s supraspinatus tendon was caused by the accident.
In the alternative, if a pre-existing tear had been present before the accident, the medical members of the Panel are of the view that the mechanism of the accident, the radiology and the claimant’s symptoms after the accident would support a finding that any pre-existing tear was materially aggravated by the accident (and further torn) as a result of the forces involved in the accident.
CONCLUSION
Section 1.6(2) of the MAI Act defines what a soft tissue (threshold injury) is and excludes from that definition “an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage”.
As the Panel has found the claimant sustained a right shoulder injury in the accident and the Medical Assessors have diagnosed the posterior supraspinatus tendon was torn in the accident it follows that the injury caused by the accident is the “complete or partial rupture” of a tendon and is therefore not a soft tissue injury and not a threshold injury for the purposes of the MAI Act.
As the Panel has come to the same conclusion as Medical Assessor Shahzad, it follows that his certificate should be affirmed.
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