Barbar v QBE Insurance (Australia) Limited
[2025] NSWPICMP 672
•4 September 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Barbar v QBE Insurance (Australia) Limited [2025] NSWPICMP 672 |
CLAIMANT: | Jihan Barbar |
INSURER: | QBE Insurance (Australia) Limited |
REVIEW PANEL | |
MEMBER: | Jeremy Lum |
MEDICAL ASSESSOR: | Margaret Gibson |
MEDICAL ASSESSOR: | Christopher Oates |
DATE OF DECISION: | 4 September 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; threshold injury dispute; claimant was reversing out of car space when another reversing car collided with the rear of her vehicle; claimant says she was gripping forcefully onto the steering wheel at time of impact; no documented shoulder complaint until six weeks after motor accident; whether partial thickness tear of the shoulder tendons is causally related to the motor accident; original Medical Assessment Certificate (MAC) found right shoulder to be threshold injury but stated the motor accident could have exacerbated the partial tendon tear that likely pre-existed the motor accident; Held – motor accident not considered to involve sufficient mechanical force to cause a partial tear or exacerbate a pre-existing tear of the shoulder tendons; forcefully gripping the steering wheel could plausibly cause a tear however timeline in present matter is more consistent with a soft tissue injury; due to a change in the description of other injuries MAC is revoked. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Certificate issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate issued by Medical Assessor Mohammed Assem dated 2. Determines that the following injuries caused by the motor accident: · cervical spine – soft tissue injury with referred symptoms to the right upper extremity; · thoracic spine – soft tissue injury, and · right shoulder – soft tissue injury, are threshold injuries for the purposes of the Motor Accident Injuries Act 2017. |
STATEMENT OF REASONS
INTRODUCTION
Jihan Barbar (the claimant) was involved in a motor accident on 6 August 2023. She says she was parked in a carpark at Woolworths Revesby. As she was reversing out of a car spot, the right rear corner of her car collided with another car that was also reversing.
The claimant says she sustained musculoskeletal injuries as a result of the motor accident.
She made a claim for statutory benefits with QBE (the insurer), the third-party insurer of the vehicle that she says caused the motor accident. QBE accepted the claim for statutory benefits (weekly payments and treatment and care) for up to 52 weeks from the date of the motor accident.
On 9 July 2024, QBE issued a liability notice denying liability after 52 weeks on the basis that the claimant had sustained a threshold injury.
A medical dispute arose about whether the claimant’s injuries were threshold or not threshold injuries. The matter was referred to the Personal Injury Commission (Commission) for medical assessment.
On 28 January 2025, Medical Assessor Mohammed Assem issued a certificate of assessment which found the claimant’s accident-related injuries to be all threshold injuries.
The claimant lodged an application with the Commission seeking review of the Medical Assessor’s decision. This was allowed by the President’s delegate (Ms Tajan Baba) and this Review Panel (Panel) was convened to conduct the review.[1]
[1] Section 7.26(5) of the MAI Act.
RELEVANT PROVISIONS
Threshold injury
Under the Motor Accident Injuries Act 2017 (the MAI Act), there is a scheme for statutory benefits (under Part 3) for persons injured in motor accidents in New South Wales. Such benefits can include treatment and care and weekly payments.
For injured persons who have “threshold injuries”, they cannot receive statutory benefits beyond 52 weeks after the accident and cannot recover damages.[2]
[2] The terminology for accidents that occurred before 1 April 2023 was “minor” injury and statutory benefits were only paid for up to 26 weeks.
For physical injuries, a threshold injury is defined as a “soft tissue injury”.[3]
[3] Section 1.6(1) of the MAI Act.
A “soft tissue injury” is defined as:
“An injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, facia, 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.”[4]
[4] Section 1.6(2) of the MAI Act.
A soft tissue injury includes an injury to a spinal nerve that manifests in neurological signs (other than radiculopathy).[5]
[5] Section 4(1) of the Motor Accident Injuries Regulation 2017.
The Motor Accident Guidelines (the Guidelines)[6] defines radiculopathy as:
“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
(c) muscle atrophy and/or decreased limb circumference
(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.”[7]
[6] The applicable version of the Guidelines is version 9.3.
[7] Clause 5.8 of the Guidelines.
Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury.[8]
[8] Clause 5.9 of the Guidelines.
Table 6.8 of the Guidelines provides definitions for the clinical signs in (a) to (e) above.
Causation
The provisions regarding causation of injury are contained in cls 6.5 to 6.7 of the Guidelines and apply to both permanent impairment and threshold injury disputes. [9]
[9] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372 per Wright J at [35].
Clauses 6.6 and 6.7 state:
“6.6 Causation means that a physical, chemical or biological 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 the worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
Further, the provisions of the Civil Liability Act 2002 apply, in particular ss 5D and 5E.
ASSESSMENT UNDER REVIEW
The following injuries were referred to Medical Assessor Assem for assessment:
· injury to the cervical spine – soft tissue injury with radiculopathy into the upper limbs / referred pain to the upper limbs;
· injury to the right shoulder – partial thickness tear of the supraspinatus and subscapularis. The subacromial subdeltoid burse is thickened measuring 1.5mm with impingement;
· injury to the thoracic spine – soft tissue injury/muscle spasm with radiculopathy, and
· injury to the right arm – soft tissue injury / referred pain from cervical spine.[10]
[10] Also taken to be the injuries referred to the present Panel.
Medical Assessor Assem accepted that the claimant had no prior history of any musculoskeletal injuries.
The Medical Assessor noted that although the claimant’s general practitioner (GP) had documented neck pain with radiculopathy, the claimant explicitly denied experiencing such symptoms to the Medical Assessor. The Medical Assessor also observed no evidence of any thoracic spine or right arm injury. It was therefore concluded that the claimant did not suffer any injury to her cervical spine, thoracic spine or right arm.
Turning to the right shoulder, the claimant complained of ongoing pain and stiffness to the Medical Assessor. Ultrasounds showed a partial thickness tear of the right shoulder.
The Medical Assessor did not consider the partial thickness tear to be related to the motor accident. Notwithstanding the claimant stating that she forcefully clenched the steering wheel at the time of impact, she did not report any symptoms or seek medical attention for approximately one month after the accident. The Medical Assessor also noted that at age 46, the claimant was within a demographic where degenerative shoulder changes, such as partial thickness tears or bursitis, are both common and frequently asymptomatic. The Medical Assessor considered that the partial thickness tear is more consistent with a chronic degenerative process that was present before the accident.
However, the Medical Assessor stated that the partial thickness tear could have been exacerbated by the motor accident.
For these reasons, the right shoulder injury was considered to be a soft tissue injury only and therefore a threshold injury.
SUBMISSIONS
Claimant’s submissions
The claimant says the contemporaneous evidence indicates that she sustained an injury to her right shoulder as a result of the motor accident. Subsequent radiological evidence in the form of the ultrasound report dated 23 November 2023 demonstrated a tear to the right shoulder which is a non-threshold injury.
It is further submitted that the claimant did not suffer from any pre-existing injury and there is no evidence to indicate that the tear is degenerative in nature.
In her review application submissions, the claimant again refers to the ultrasound report dated 23 November 2023 as follows:
“Ultrasound of Right Shoulder 24 November 2023
o Partial thickness tear of the supraspinatus and subscapularis tendons
o Subacromial subdeltoid bursitis measuring 1.5 mm with impingement.”
The claimant says the Medical Assessor, having found that the pre-accident right shoulder pathology could have been exacerbated in the subject accident, should have made a positive finding in relation to causation and non-threshold injury.
Insurer’s submissions
The insurer notes that the claimant first attended her GP over one month after the motor accident and did not disclose any physical injuries in her personal injury claim form. The insurer also notes that the GP did not refer to any physical injuries in the initial certificate of capacity. It is submitted that based on the totality of the evidence, particularly the contemporaneous evidence, none of the alleged injuries are causally related to the motor accident.
On the issue of threshold injury, the insurer says the injuries to the cervical spine and thoracic spine are both threshold only as the evidence does not support the presence of any confirmed radiculopathy. The insurer refers to the Doctor Support Program Report (Final) prepared by Dr Perla and Dr Antoun who provided a diagnosis of soft tissue injury only.
In relation to the right shoulder, the insurer submits that while “supraspinatus and subscapularis tears” were found in the ultrasounds, the observed radiology is not causally related to the motor accident. In this regard, the insurer relies on the findings of Dr Ijaz Khan who determined that the described mechanism of injury to the right shoulder was inconsistent with the reported pathology on imaging.
Furthermore, the insurer says Dr Perla and Dr Antoun determined that the claimant suffered a soft tissue injury to the right shoulder as a result of the motor accident.
In its review reply submissions, the insurer says the Medical Assessor gave detailed reasons for his finding that the right shoulder injury was a threshold injury and that the tear identified on post-accident imaging was not likely to be caused or materially contributed to by the motor accident. Specifically, the insurer says the Medical Assessor accurately applied the test of causation when he said “The accident may have exacerbated pre-existing right shoulder pathology rather than directly causing or worsening a rotator cuff tear”.
The insurer relies on the report of Dr Ijaz Khan who stated the mechanism of injury was inconsistent with the reported pathology on imaging.
The insurer also refers to a Review Panel decision in Chen v Allianz Australia Insurance Limited[11] which found “imaging findings entirely consistent with degenerative shoulder pathology rather than acute trauma”, referencing:
(a) that partial-thickness tear and tendinopathy are “hallmark features of cumulative degenerative changes” underscoring the degenerative aetiology of the claimant’s shoulder condition, described as “chronic inflammatory wear and tear findings”;
(b) the absence of objective evidence linking these changes to the motor accident which “further weakens the claimant’s assertion of causation”, and
(c) biomechanical evidence which “emphasised the low-energy nature of the collision”.
[11] [2025] NSWPICMP 17 (8 January 2025).
The insurer submits that all of these aspects were consistent with Medical Assessor Assem’s findings.
DOCUMENTATION
On 16 April 2025, the Panel issued a direction to the parties requiring indexed and paginated bundles of the information they relied upon. Both parties duly responded with the claimant’s bundle comprising of pages 1-391 and the insurer’s bundle comprising of pages 1-40.
The Panel has read and discussed the documentation with the relevant material referred to in the Panel’s re-examination report and Panel findings below.
RE-EXAMINATION REPORT
The Panel determined that the claimant be re-examined by Medical Assessor Oates on
13 August 2025. The re-examination report is as follows:
“JIHAN BARBAR
Date of Accident: 6 August 2023
Year of Birth: 1978
Date of Panel re-examination: 13 August 2025
Details of who attended the Assessment
The claimant attended unaccompanied.
An Arabic interpreter (NAATI No. CPN8JSO5R) was present for the duration of the assessment.
A female chaperone was present during the physical examination.
The re-examination for the Medical Review Panel took place as arranged on 13 August 2025 at the PIC Medical Suites in Darlinghurst.
HISTORY
Pre-accident medical history and relevant personal details
The claimant is right-handed.
She is divorced and had been separated for 12 years on and off. Her four children aged between 20 and seven live with her in government housing.
She was not working at the time of the accident and in the past she had done family daycare for two years, and then was a carer for her ex-husband for six years. She did all the housework and normal yard work, and drove a motor vehicle, before the accident.
She was born in Lebanon and came to Australia in 2003.
Before the accident, she had no problems with her neck, back or arms. She had had no serious illnesses or operations and was on no regular medication.
I asked her whether she could recall telling Medical Assessor Assem about depression and anxiety pre-existing the accident and she said she could not, and did not recall GP records of this. She did not recall seeing a psychiatrist or counsellor.
History of the motor accident
The claimant confirmed on 6 August 2023, about 7.30pm, she and her two daughters had finished shopping in Woolworths and returned to their car in the carpark. She put her two daughters aged eight and five in the back seat in child seats. She got into the car and had her seatbelt on.
She had turned the engine on but had not moved out of her parking space and was stationary, when a car doing a turn reversed out of a space and went to go in one direction, but this way was blocked, so he had to change tack and go in the opposite direction and in the process, he backed into the back of her car in the car space.
Her car was still driveable. Police and ambulance did not attend.
Her hands were on the steering wheel at the time of the impact and she said that she was holding it tightly. Airbags did not deploy in the impact. She felt some pain in the right arm and later on felt pain in the right shoulder joint area within one or two weeks after the accident. She took Panadol and had hot showers, thinking everything would settle down.
History of symptoms and treatment following the motor accident
She eventually went to her GP, Dr Alsayed, on 13 September 2023 for the first time. He advised neck exercises in a warm pool and to avoid frequent use of the arms above shoulder level, and to do exercises for her back. She was given analgesics.
At the second visit on 19 September 2023, there was record of neck pain with radiculopathy, back pain to the buttock, and bilateral shoulder pain. She went to a physiotherapist in the same medical centre and had treatment to the neck, trapezii, shoulder blades and thoracic spine. She had about 30 treatments in all and was also given home exercises.
She eventually had an ultrasound scan right shoulder on 24 November 2023, which had been ordered by the GP back on 19 October 2023 because of stiffness in the right shoulder. This showed a partial-thickness tear of the supraspinatus tendon and subscapularis tendon, with thickening of the subacromial/ subdeltoid bursa, with impingement on abduction.
She continued her normal housework activities, but had difficulty with them. She didn’t have access to any outside help. Her sister and brother, who live in Sydney, were not available.
She had a CT scan cervical spine and lumbar spine on 23 May 2024.
She said she saw no other doctors until I reminded her of a report of Professor Murrell, shoulder surgeon, dated 19 August 2024. She had right shoulder pain and stiffness, and he told her she needed surgery, but this advice scared her because she has young children to look after alone.
She told me she also saw a psychologist until the insurance ceased her benefits in mid-2024.
Details of any relevant injuries or conditions sustained since the motor accident
Nil.
Current symptoms
The claimant told me her neck is OK and she can move it OK, however she still has some pain in the right arm, indicating the right anterior upper arm and not over the shoulder joint, but in the right biceps muscle.
She notices this pain in the upper arm if she holds her mobile phone or a cup of coffee too long, and then feels heaviness in the whole of the right arm. The arm can be painful, even at rest, but she can move her right arm fairly freely. The left arm has no problems. There is no problem more distally in the right arm.
Current and proposed treatment
She has Panadeine Forte one at night and Panadol Osteo 4 – 6 tablets per day.
She does home exercises but these give her arm pain.
She changed her GP to Dr Raji at Punchbowl this year, as her previous doctor was very busy and hard to get an appointment with.
CLINICAL EXAMINATION
General presentation
She was of average build with height 157cm and weight 63.5kg.
She sat comfortably relating the history and was able to transfer out of a chair and on and off the couch, and walk about the room without difficulty. There was no limp.
Cervical spine (cervicothoracic)
Normal cervical lordosis. There was no spasm or guarding and no tenderness in the neck.
There was full range of movement in the cervical spine in flexion, extension, lateral flexion and rotation.
Neurology of upper extremities was normal with normal sensation, normal power and reflexes were present and symmetrical and of normal amplitude.
Upper arm girth; right 29.5cm, left 30cm.
Forearm girth; right equals left equals 25.5cm.
0.5cm difference is not considered to be clinically significant.
Thoracic spine (thoracolumbar)
No spasm or guarding. There was no tenderness. Sensation was intact over the trunk. There was full range of movement in thoracic rotation and also in lateral flexion and extension, which occurs mainly in the lumbar spine.
Neurology of the lower extremities was normal with normal reflexes, normal power and sensation, and flexor plantar responses.
Supine straight leg raising was normal. Slump test was negative.
Thigh girth; right equals left equals 44cm at 10cm above the patella.
Calf girth; right 32cm, left 32.5cm at 13cm maximal circumference.
Upper extremities
There was tenderness in the anterior aspect of the right shoulder and into the biceps muscle belly and long head.
Shoulder Movements Active ROM Measured
RIGHT
Active ROM Measured
LEFTFlexion 150° 180° Extension 40° 50° Adduction 30° 40° Abduction 170° 180° Internal rotation 50° 80° External rotation 90° 90° Impingement test was negative at the right and left shoulders.
Comments on consistency
The claimant presented in a straightforward consistent manner.
IMAGING
No imaging was brought to this Panel re-examination.”
FINDINGS
The review of the medical assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned.[12]
[12] Section 7.26(6) of the MAI Act.
The Panel may confirm the certificate of assessment or revoke that certificate and issue a new certificate as to the matters concerned.[13]
[13] Section 7.26(7) of the MAI Act.
The Panel notes the above re-examination report of Medical Assessor Oates. The Panel reconvened on 28 August 2025 and discussed the re-examination report findings before collectively making the below determinations.
Diagnosis and causation
Cervical spine
This is defined as soft tissue injury with referred symptoms to the right upper extremity, which incorporates the fourth referred injury. Despite radiculopathy being mentioned in the GP record of 19 September 2023, there was no record of two or more signs of cervical radiculopathy, as defined in the Guidelines, at any time after the accident.
The accident was a cause of this injury, as it is mentioned in the GP record of 13 September 2023, the date of the first visit.
Thoracic spine
This is diagnosed as soft tissue injury. There was no evidence of thoracic radiculopathy at any time after the accident.
The accident was a cause of this injury, as upper back/thoracic spine is mentioned in the GP record of 13 September 2023.
Right shoulder
The diagnosis is soft tissue injury. The accident was a cause of this injury, as it is mentioned in the GP record of 19 September 2023 and the physiotherapy record of 30 October 2023.
The motor accident was not considered by the Panel’s Medical Assessors in their clinical experience to involve sufficient mechanical force to cause either a post-traumatic rotator cuff tear or to extend, aggravate or exacerbate a pre-existing asymptomatic tear. The claimant described the accident as a rear end collision when the insured vehicle had backed into the back of her car in a car space. The claimant had her seatbelt on, no airbags were deployed and emergency services did not attend.
While the Panel’s Medical Assessors were in agreement that gripping the steering wheel forcefully at the time of a motor accident could plausibly cause a tear (or aggravate/exacerbate an existing tear) of the shoulder tendons, the symptoms in the shoulder of acute pain and swelling would have been apparent within hours to a day or two after the motor accident.
The claimant stated at the Panel’s re-examination that the right shoulder did not become symptomatic until one or two weeks after the accident. No record of any complaints was made until an entry in the GP record some six weeks after the motor accident. This timeline, in the Panel’s view, is applicable to a soft tissue injury that has progressed and become more symptomatic in the weeks following the motor accident. It is not the timeline expected for either an acute injury causing rotator cuff tear or an injury of sufficient severity to cause an extension, aggravation or exacerbation of a pre-existing asymptomatic tear.
THRESHOLD INJURY
Cervical spine
Soft tissue injury with referred symptoms to right upper extremity.
This is a threshold injury. There was no evidence available to the Panel of a partial or complete rupture of disc fibrocartilage, in the form of annular tear or fissure. There was no evidence on file nor on clinical examination by the Panel’s Medical Assessor of cervical radiculopathy, which requires two or more signs as specified in the Motor Accident Guidelines.
Thoracic spine
This soft tissue injury is a threshold injury.
There was no imaging evidence of fibrocartilage of disc rupture in the form of an annular fissure or tear, and there was no evidence of thoracic radiculopathy on file nor on clinical examination by the Panel’s Medical Assessor.
Right shoulder
This soft tissue injury is a threshold injury.
For reasons given above related to causation of the rotator cuff tear, the Panel found, on balance, that the motor accident caused a soft tissue injury to the right shoulder.
CONCLUSION
The claimant’s injuries caused by the motor accident are threshold injuries.
The Panel’s findings are essentially in concurrence with those of Medical Assessor Mohammed Assem, however as the description of the injuries have changed, the certificate issued by Medical Assessor Mohammed Assem dated 28 January 2025 is revoked.
A new certificate is issued at the front of these reasons.
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