Almoaiel v Allianz Australia Insurance Limited
[2025] NSWPICMP 312
•6 May 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Almoaiel v Allianz Australia Insurance Limited [2025] NSWPICMP 312 |
CLAIMANT: | Watnik Almoaiel |
INSURER: | Allianz Australia Insurance Limited |
REVIEW PANEL | |
MEMBER: | Maurice Castagnet |
MEDICAL ASSESSOR: | Drew Dixon |
MEDICAL ASSESSOR: | Thomas Rosenthal |
DATE OF DECISION: | 6 May 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); claimant suffered injury in a motor accident; whether the injuries caused by the accident were threshold injuries; whether the motor accident caused a supraspinatus tear in the left shoulder; whether healing of the supraspinatus tear causes that injury to be a threshold injury; reasoning in David v Allianz Australia Insurance Ltd applied; David in Allianz Australia Insurance Ltd trading as Allianz v Susak cited; Held – MAC revoked and new certificate issued; injury to left shoulder is not a threshold injury; injuries to the cervical spine, the lumbar spine, and the right shoulder, are threshold injuries. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The issue determined by the Review Panel is whether the injuries caused by the motor accident are threshold injuries. Determination 1. The Review Panel revokes the certificate of Medical Assessor Alexander Woo dated 2. The Review Panel issues a replacement certificate determining that: (a) the following injuries caused by the motor accident are threshold injuries: (i) cervical spine - soft tissue injury; (ii) lumbar spine - soft tissue injury, and (iii) right shoulder- soft tissue injury; (b) the following injury caused by the motor accident is not a threshold injury: (i) left shoulder - supraspinatus tear, now healed. A statement of the Review Panel’s reasons for the determination is attached to this certificate. |
STATEMENT OF REASONS
INTRODUCTION
On 14 December 2020, the claimant, Watnik Almoaiel, was involved in a motor accident when his stationary vehicle was rear-ended at a set of traffic lights by a vehicle insured by Allianz.
As a result of the accident, the claimant claimed that he sustained injuries to his cervical spine, lumbar spine and shoulders.
The insurer accepted liability to pay the claimant statutory benefits arising from his injuries, under the Motor Accident Injuries Act 2017 (MAI Act), for the first 26 weeks. Statutory benefits by way of loss of earnings and treatment and care expenses, cease after 26 weeks if “the person’s only injuries resulting from the motor accident were threshold injuries”. An injured person cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were threshold injuries”.[1]
[1] Section 4.4 of the MAI Act.
Following an internal review of its original decision conducted on 31 August 2021, the insurer maintained that the claimant’s physical injuries caused by the accident, were threshold injuries for the purposes of s 1.6 of the MAI Act.[2]
[2] At the time the review decision was made, the term “threshold injury” was expressed as “minor injury” in s 1.6 of the MAI Act.
To resolve the dispute, the claimant made an application for a medical assessment of the matter by the Personal Injury Commission (Commission) pursuant to Division 7.5 of the MAI Act.
According to Schedule 2, cl 2 of the MAI Act, the issue of whether an injury caused by the motor accident is a threshold injury for the purposes of the Act is declared to be a medical assessment matter.
A medical assessment matter is determined in accordance with Division 7.5. This means that the matter is determined at first instance by a Medical Assessor [3] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[3] Section 7.20 of the MAI Act.
THE MEDICAL ASSESSMENT UNDER REVIEW
The dispute was referred at first instance to Medical Assessor Alexander Woo for assessment. Medical Assessor Woo issued a certificate dated 18 July 2024.
The injuries referred to the Medical Assessor for assessment were injuries to the cervical spine, the lumbar spine and both shoulders.
The Medical Assessor found that the accident caused soft tissue injuries to the cervical spine, lumbar spine and both shoulders and were all threshold injuries for the purposes of the Act.
THE REVIEW APPLICATION
On 13 August 2024, pursuant to s 7.26 of the MAI Act, the claimant made an application to the President of the Commission to refer the medical assessment matter to a review panel for review. The application was accepted by the Commission as being made within the time prescribed by s 7.26(10) of the MAI Act.
The President referred the application to a review panel for review, being satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect, having regard to the particulars set out in the application.
CONDUCT OF THE REVIEW
According to s 7.26(5A) of the MAI Act, the review panel consists of two Medical assessors and a member of the Motor Accidents Division of the Commission. On this occasion, the Panel is constituted by Medical Assessor Dixon, Medical Assessor Rosenthal and Member Castagnet (the Panel).
Part 5 of the Personal Injury Commission Act 2020 (PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[4]
[4] Section 41(2) of the PIC Act.
Pursuant to Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules), the Panel determines how it conducts and determines the proceedings. The Panel may determine the proceedings solely based on the written application.[5]
[5] Rule 128 of the PIC Rules.
The review is not limited to only that aspect of the assessment that is alleged to be incorrect and is by way of a new assessment of all the matters with which the medical assessment is concerned.[6]
RELEVANT STATUTORY PROVISIONS, GUIDELINES AND LEGAL PRINCIPLES
[6] Section 7.26(6) of the MAI Act.
The MAI Act
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury”. Section 1.6(2) of the Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder.
The Motor Accident Guidelines
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 Act. Version 9.3[7] of the Guidelines, relevantly provides:
[7] The Guidelines were updated on 6 December 2024.
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a 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.”
Clauses 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a threshold injury. An injury resulting in radiculopathy will not be classified as a threshold injury.
Clause 5.7 of the Guidelines provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
Radiculopathy is defined in cl 5.8 of the Guidelines as follows:
“Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a)loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b)positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c)muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d)muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution.
(e)reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
Neurological symptoms that do not meet the assessment criteria for radiculopathy means that the injury will be assessed as a threshold injury.[8]
[8] Clause 5.9 of the Guidelines.
Causation of injury
Sections 5D and 5E of the Civil Liability Act2002 apply to the MAI Act.[9]
[9] See s 3B(2) of the Civil Liability Act 2002.
In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13, Campbell J made the following observations at [65]:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
These observations were made in the context where the review panel was constituted by three Medical Assessors. Nevertheless, the observations provide useful guidance to the presently constituted Panel.
Clauses 6.5 to 6.7 of the Guidelines also address the issues of causation of injury and whether the degree of permanent impairment is caused by injury. These provisions are equally of relevance to the issue of causation of threshold injury.
The following observations were made by Wright J in Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372 at [35]:
“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
6.5 An 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.
6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.
This, therefore, involves a medical decision and a non-medical informed judgment.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
MATERIAL BEFORE THE REVIEW PANEL
The claimant filed a paginated and indexed bundle of documents comprising 363 pages (the claimant’s bundle). The insurer filed a paginated and indexed bundle of documents comprising 58 pages (the insurer’s bundle).
The Panel considered all of the above material.
SUBMISSIONS
The claimant’s submissions
The claimant submitted that the single Medical Assessor erred in coming to the conclusion that the finding of the ultrasound of a 9 x 3 mm partial thickness supraspinatus tear in the left shoulder could be a false positive finding in circumstances where the MRI scan performed seven months later, showed no rotator cuff tear. The Medical Assessor’s conclusion did not consider that the tear could have healed in the intervening period.
The claimant submitted that in line with the reasoning in David v Allianz Australia Ltd [2021] NSWPICMP 227, it is not necessary that the tear is present at the time of the assessment and that it is sufficient for a finding of non-threshold injury that there is medical evidence to confirm a rotator cuff tear at any time following the accident and was caused by the accident. The mere fact that an injury had healed does not render the injury a threshold injury.
Insurer’s submissions
The insurer submitted that the Medical Assessor used his clinical experience and judgment and applied the correct test of causation. He determined, on balance of probabilities, that in light of the claimant’s pre-accident history and the MRI findings, the claimant did not sustain a left rotator cuff tear in the motor accident.
The insurer submitted that the ultrasound imaging revealed pre-existing pathology and not acute pathology as a result of the motor accident. The insurer submitted the pathology was longstanding and pre-existing, and not causally related to the subject accident. The pre-existing left shoulder injury occurred as a result of a motor accident on 12 June 2018 and remained symptomatic up until the subject accident.
In support of this submission the insurer relied on the following evidence:
(a) in an Allied Health Recovery Request form dated 11 January 2021, chiropractor, Anne Lyell, recorded that the claimant was involved in two motor accidents prior to the subject accident, with an injury to the left shoulder sustained in an accident dated 12 June 2018, with no improvement in two years;
(b) in a report dated 10 October 2018, physiotherapist, Jessica Phan reported that the claimant’s shoulder mobility had increased, and
(c) the clinical notes of Hawksbury Chiropractic Centre showed that the claimant complained of left shoulder injury as a result of the 2018 motor accident and that the left shoulder condition was reaggravated as a result of a 2019 motor accident. The claimant made ongoing complaints of left shoulder pain in 2019, through to 2020 and as recent as August 2020, with symptoms to the left infraspinatus.
THE EVIDENCE BEFORE THE REVIEW PANEL
The evidence before the Panel may be summarised as follows.
Pre-accident medical records
A discharge summary issued on 13 June 2018 from Nepean Hospital showed that the claimant was admitted for treatment following a motor accident on 12 June 2018.[10]
[10] Page 342 of the claimant’s bundle.
On admission it was recorded that the claimant was the driver of a car that was “T-boned at 80 kph this afternoon with airbags deployed, not trapped, walking at scene”.[11] Upper neck pain and a bruised left knee below the patella were noted. X-rays of the cervical spine, right hand and left knee revealed no acute injuries or fractures.[12] On discharge on 13 June 2018, there was “minimal neck pain.”[13]
[11] Page 342 of the claimant’s bundle.
[12] Page 343 of the claimant’s bundle.
[13] Page 343 of the claimant’s bundle.
The clinical records of the Montarville Street Medical Centre (the general practitioner (GP) records) showed a medical history of the claimant from February 2013 to the date of the accident and thereafter.
It was recorded that on 14 June 2018, the claimant attended a consultation with Dr Raad Almesaal reporting that he had been involved in a motor accident “a few days ago” and that he had been treated at Nepean Hospital. Dr Almesaal diagnosed soft tissue injuries to the neck, lower back, right wrist, left ankle and left knee. He prescribed pain and anti-inflammatory medication and referred the claimant for physiotherapy.[14]
[14] Page 87 of the claimant’s bundle.
The GP records did not reveal any further visits after the subject accident for treatment relating to these injuries.
According to the clinical records of chiropractor, Anne Lyell, the claimant was treated for left shoulder and cervical pain following two previous motor accidents in June 2018 and 2019[15] with “no improvement in 11/2 years”[16] but “chiropractic treatment for this injury improved to asymptomatic over 6 [month] period” and “asymptomatic since July 2020.”[17]
The claimant’s statement
[15] Page 138 of the insurer’s bundle.
[16] Page 329 of the claimant’s bundle.
[17] Page 329 of the claimant’s bundle.
In his application for personal injury benefits (claim form) dated 30 December 2020, the claimant described his injuries in the following terms:
“neck, shoulder and lower back.”[18]
[18] Page 35 of the claimant’s bundle.
Post-accident medical records
The post- accident GP records before the Panel were from the date of the accident to November 2021. They showed that from 4 January 2021 to November 2021, the claimant attended multiple monthly consultations complaining of neck, lower back, left shoulder. The consultations included complaints of right shoulder pain which were recorded as due to overuse of that shoulder as a result of the left shoulder injury.[19]
[19] Page 45 – 80 of the claimant’s bundle.
On 11 January 2021, the claimant was referred by Dr Almesaal to chiropractor, Ms Lyell, for treatment of the “left shoulder, lower back and neck injury.”[20]
[20] Page 315 of the claimant’s bundle.
On 21 June 2021 an ultrasound of the left shoulder was performed which showed a 9 x 3mm partial thickness tear of the anterior fibres of the supraspinatus tendon on the background of mild tendonitis.[21]
[21] Page 345 of the claimant’s bundle.
On 26 July 2021, the claimant was referred by Dr Almesaal to orthopaedic surgeon, Dr Des Bokor for treatment of the left shoulder injury. However, there was no material before the Panel relating to the treatment given by Dr Bokor.[22]
[22] Page 198 of the claimant’s bundle.
Medicolegal evidence
The claimant was assessed by orthopaedic surgeon, Dr Jonathan Herald on
9 February 2022.In his report dated 9 February 2022, Dr Herald indicated that he had reviewed the ultrasound of the right shoulder dated 21 June 2021 and an MRI scan of the left shoulder dated
20 January 2022. He noted that the ultrasound showed a 9 x 3mm partial tear of the anterior fibres of the supraspinatus tendon on the background of mild tendonitis. He noted that the MRI scan showed mild subacromial bursitis but otherwise an MRI scan of normal appearance. In particular, there were no rotator cuff tears.[23][23] Page 41 of the claimant’s bundle.
Dr Herald was of the opinion that as a result of the accident, the claimant had sustained an injury to his back, neck and left shoulder. He also believed that the claimant had secondary impingement syndrome to his right shoulder.[24]
[24] Page 42 of the claimant’s bundle.
His diagnosis was that there was a left shoulder partial thickness rotator cuff tear with subsequent healing, a lumbar muscle strain with resolution with chiropractic treatment, a whiplash injury to the cervical spine with radiculopathy symptoms to the left upper limb.[25]
[25] Page 41 of the claimant’s bundle.
He believed that the rotator cuff tear appears to have healed over time and was slowly improving with conservative treatment. He concluded that the motor accident had caused a non-threshold injury in the form of a left shoulder partial thickness rotator cuff tear.[26]
[26] Page 42 of the claimant’s bundle.
The MRI scan of the left shoulder
The MRI scan, which was performed on 20 January 2022 and reviewed by Dr Herald, was not before the Panel. During the review, the Panel directed the claimant to provide this material to the Panel. In response, the claimant submitted that there was an attempt made in July 2024 to obtain the scan and report, but Quantum Radiology indicated that due to a cybersecurity incident on or about 22 November 2023, the material was no longer available.
RE-EXAMINATION
On 18 February 2025, the claimant was re-examined by Medical Assessor Dixon on behalf of the Panel, at his rooms in Hornsby.
His report now follows.
History of the motor accident and treatment
The claimant was a front seat passenger in a Mazda 6 that was rear ended at speed by a Nissan Navarro. His vehicle was severely damaged. He sustained injuries to his neck, shoulders and lower back. He drove the car around a corner, and it was towed away and subsequently written off. There was no head injury nor loss of consciousness. He has no amnesia for the accident details. He did not require ambulance attention or hospitalisation.
He had pain in both shoulders more marked on the left.
When he arrived home, he took Panadol and was provided with a rental car. He had chiropractic treatment for pain in his neck, back and left shoulder. His rate of improvement was slow, so he decided to see his GP on 4 January 2021. An ultrasound was ordered and performed on 21 June 2021. It showed a left partial thickness rotator cuff tear and bursitis in his right shoulder.
He had ultrasound guided cortisone injections to both shoulders without sustained benefit.
He consulted a shoulder specialist, Dr Des Bokor who referred him for an MRI scan of the left shoulder which was performed on 20 January 2022. It showed mild subacromial bursitis but otherwise was a normal MRI scan appearance which meant that his rotator cuff tear in the left shoulder had healed.
Conditions sustained since the motor accident
Nil.
Current symptoms
He reports residual pain in his back with intermittent sensory change in the left forearm radiating to the ulnar two digits. These are intermittent. He did have bilateral shoulder pain much more severe on the left today and minimal low back pain and no sciatica.
Current treatment
He has stopped his chiropractic treatment and takes Panadol as required. He is not seeing a GP at present nor a shoulder specialist.
Examination
On examination, he was 176cm tall and weighed 105kg.
There was a symmetrical range of motion of his cervical spine without any focal tender areas. There was no spasm or guarding. He did report intermittent tingling and numbness of the fingers but there was no neurological deficit in either upper extremity today. His reflexes were symmetrical. There was 2cm of wasting of his left forearm (he is right-handed) and no wasting of his upper arms, measuring 36cm, 10cm above the elbow crease bilaterally. The forearms were measured 10cm below the elbow crease at 28cm on the left and 30cm on the right.
Intrinsic power, grip strength and thenar power were grade 5 out of 5. There was no objective sensory change in the left upper extremity.
There was stiffness on elevation of his left shoulder with active abduction 130 degrees, forward flexion 140 degrees, extension 30 degrees, adduction 30 degrees, internal rotation 60 degrees and external rotation 80 degrees and shoulder girdle power on the left was grade 4 out of 5. There was tenderness of the trapezius muscles and of the superior and inferior infraspinatus muscle belly and tenderness at the point of the shoulder. There was impingement on abduction and there was winging of the left scapula on resisted protraction. There was tenderness in the biceps groove today.
He had mild stiffness of the right shoulder with flexion 170 degrees, extension 50 degrees, abduction 170 degrees, extension 40 degrees, adduction 40 degrees, external rotation 80 degrees and internal rotation 80 degrees. Shoulder girdle power on the right was grade 5 out of 5. There were no tender areas in the right shoulder.
There was no stiffness of his lumbar segment and no dysmetria, erector spinae muscle spasm and no tender areas in the lumbar spine. He did report his back felt fine today but at times he has had pain in the lumbosacral area, particularly after prolonged sitting and driving. His straight leg raise was 70 degrees bilaterally and there was no neurological deficit or wasting of either lower extremity and his plantar responses were negative. His normal gait was satisfactory as was toe and heel walking.
Radiological investigations
His investigations include an ultrasound of the left shoulder on 21 June 2021 which showed a 9mm x 3mm partial thickness tear of the anterior fibres of the supraspinatus on the background of mild tendonosis.
Ultrasound of the right shoulder on 21 June 2021 showed mild subacromial bursitis without shoulder impingement.
X-ray of the cervical spine on 28 January 2022 was normal.
MRI scan of the left shoulder on 20 January 2022 showed mild subacromial bursitis. There was no rotator cuff tear apparent.
CAUSATION AND REASONS
The Panel notes the claimant’s past history of two previous motor accidents.
On 12 June 2018, the claimant was a passenger in a car which collided with a vehicle in front. Air bags deployed. He was admitted to Nepean Hospital complaining of upper neck pain and pain in the right hand and left knee. X-rays showed no acute bony injuries, and he was discharged home with minimal neck pain on 13 June 2018.
On 14 June 2018, the claimant consulted his GP, Dr Almesaal complaining of injuries he sustained in the motor accident a few days before. Dr Almessaal made a diagnosis of soft tissue injuries to the neck, lower back, right wrist, left ankle and left knee. There were no further consultations with Dr Almessaal.
The claimant received treatment from chiropractor, Ms Lyell. According to Ms Lyell’s records, symptoms resolved after 18 months, and the claimant was asymptomatic as of July 2020.
The claimant sustained injury in another motor accident in 2019. On this occasion, he did not consult his GP but sought treatment directly from Ms Lyell on 5 December 2019. He complained of pain in both knees (which were hit by airbags). The pain in the left knee was more marked on the left. The claimant complained of pain in the left shoulder.
According to Ms Lyell’s records, chiropractic treatment for his left shoulder and neck was successful and the claimant was asymptomatic as of July 2020.
The evidence shows that soon after the accident from 4 January 2021 to (at least) November 2021, the claimant attended multiple monthly consultations complaining of neck, lower back, left shoulder and eventually, overuse of the right shoulder as a result of the left shoulder injury.
Based on the findings of Medical Assessor Dixon on re-examination and the available evidence, the Panel accepts that the subject motor accident caused injuries to the cervical spine, lumbar spine, right shoulder and left shoulder.
Based on those findings and the available evidence, the Panel accepts that the injuries to the cervical spine, lumbar spine and right shoulder are soft tissue injuries. They are therefore threshold injuries for the purposes of s 1.6 of the MAI Act.
Based on the ultrasound performed on 21 June 2021 and the findings of Medical Assessor Dixon on re-examination, the Panel is satisfied that the subject accident caused a rotator cuff partial tear in the left shoulder. This means that the left shoulder injury is not a threshold injury for the purposes of s 1.6 of the MAI Act.
Neither the MRI imaging of 20 January 2022 nor the report were before the Panel. The MRI scan was seen by Dr Herald. According to Dr Herald’s report the MRI scan available to him showed healing of the partial thickness rotator cuff tear with mild bursitis. He concluded that the rotator cuff appears to have healed over time and was slowly improving with treatment. The Panel concurs with the conclusion of Dr Herald that by the time that the MRI scan was performed on 22 January 2022, the supraspinatus tear had healed.
The remaining question to be addressed is whether healing of a rotator cuff tear causes that injury to be a threshold injury.
A similar issue arose in David v Allianz Australia Insurance Ltd,[27] where the medical review panel had to consider whether an injury is not a threshold injury if radiculopathy is present at any time following injury in circumstances where it was found on the Panel’s re-examination that there were no signs of radiculopathy. The panel’s reasoning was that if it is established that there are at least two clinical signs of radiculopathy (as set out in cl 5.6 of the Guidelines) present at any time after the accident, the injury is a not a threshold injury.[28]
[27] [2021] NSWPICMP 227.
[28] A similar approach was taken by the medical review panel in Lynch v AAI Ltd (t/as AAMI) [2022] NSWPICMP 6.
The Panel notes that Allianz did not seek to challenge the principle in David in Allianz Australia Insurance Ltd trading as Allianz v Susak [2025] NSWCA 91.
The Panel concurs with the reasoning in David. The Panel is of the view that it is not necessary that the tendon tear is present at the time of the assessment. A finding of non-threshold injury can be made if it is established that there was a tendon tear caused by the accident at any time after the subject accident. Similarly, it cannot be said that a bone fracture (which clearly is not a threshold injury) caused by a motor accident, is a threshold injury if by the time that a medical assessment takes place, the fracture had healed.
It follows that the Panel’s conclusion is that the left shoulder injury is a non-threshold injury.
FINDINGS
The Panel conducted a new assessment of all the matters with which the medical assessment is concerned.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: See Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45] and Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21], and [64].
The Panel finds the injuries to the cervical spine, the lumbar spine, and the right shoulder, caused by the motor accident, are threshold injuries for the purposes of the MAI Act.
The Panel finds that the injury to the left shoulder – supraspinatus tear, now healed, is NOT a threshold injury for the purposes of the MAI Act.
Accordingly, for these reasons, the Panel revokes the certificate of Medical Assessor Alexander Woo dated 18 July 2024 and issues a replacement certificate which is attached at the commencement of these reasons.
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