Berber v AAI Ltd t/as GIO
[2025] NSWPICMP 469
•1 July 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Berber v AAI Ltd t/as GIO [2025] NSWPICMP 469 |
CLAIMANT: | Berber |
INSURER: | AAI Ltd t/as GIO |
REVIEW PANEL | |
MEMBER: | Terrence Stern OAM |
MEDICAL ASSESSOR: | Dr Les Barnsley |
MEDICAL ASSESSOR: | Dr Mohammed Assem |
DATE OF DECISION: | 1 July 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Vehicle Injuries Act 2017; review of Medical Assessment Certificate (MAC); the claimant was injured in a motor vehicle accident; a medical dispute arose as to whether the physical injuries sustained were threshold injuries; the claimant sought a review of the medical assessment under section 7.26; the Review Panel conducted an examination and considered the factors contributing to the injury according to section 6.6 of the Motor Accident Guidelines; Held – MAC confirmed; the Review Panel determined that the claimant had sustained a traumatic injury to his right shoulder in the accident, but that it was a non-threshold injury; the Review Panel determined that the injuries to the claimant’s cervical spine, left shoulder and lumbar spine were threshold injuries. |
DETERMINATIONS MADE: | 1. The Review Panel affirms the certificate of Medical Assessor Neil Berry dated · cervical spine; · left shoulder, and · lumbar spine. 2. The Review Panel affirms the Certificate of Medical Assessor Neil Berry dated · right shoulder. |
STATEMENT OF REASONS
INTRODUCTION
The claimant, Slavko Berber (Mr Berber), was injured in a motor vehicle accident on
19 June 2019 (the accident).Mr Berber has made a claim for Statutory Benefits for the injuries he alleges he sustained.
Medical Assessor Neil Berry assessed Mr Berber on 11 March 2024 and issued a further certificate on 28 March 2024.
Medical Assessor Berry described his assessment as “Threshold Injury & Treatment (Physical)”.
Medical Assessor Berry assessed that the injuries to the cervical spine, left shoulder, and lumbar spine were threshold injuries for the purposes of the Act.
Medical Assessor Berry determined that the injury to the right shoulder was not threshold injuries for the purposes of the Act.
Medical Assessor Berry also assessed a Treatment and Care dispute as to whether a left shoulder arthroscopic capsular release was reasonable and necessary in the circumstances and determined that it was not. The Panel notes that only a dispute as to whether the alleged injury to the right shoulder was a threshold injury is before the Panel, not a dispute as to treatment and care.
At [11] of the President delegate’s decision, the delegate commented that in the previous assessment of Medical Assessor Home, the accident could only have caused a soft tissue injury to the right shoulder and that the “tearing” shown in the MRI could be longstanding degenerative change.
When the delegate accepted the Application and determined that it be referred to a review panel, he was clearly referring to the right shoulder.
In a submission by GIO of 27 May 2025, GIO submitted that the only issue before the Panel is whether the alleged right shoulder injury was a threshold injury.
Ancillary to that question, GIO noted that it disputed that the right supraspinatus and infraspinatus tendon tear was actually related to the accident.
LEGISLATIVE FRAMEWORK AND CASELAW
Jurisdiction
Mr Berber’s claim is governed by the provisions of the 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 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 and cannot recover damages
Threshold injury
A threshold injury is defined in s 1.6(1) of the Act as 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.”
If a person injured in a motor 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 paragraph 9 above), the injured person’s statutory benefits cease in accordance with ss 3.11 and 3.28 of the Act.
Section 1.6(4) provides that regulations may be made to deem a specified injury as a soft tissue injury or not a soft tissue injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) says that “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” is a threshold injury.
Clause 5.8 of the Motor Accident Guidelines (the Guidelines) defines radiculopathy and adopts the method of assessment provided for in the whole person impairment chapter of Part 6 of the Guidelines. Clause 5.9 then provides:
“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”.
In summary, if the person injured in the car accident sustains a spinal nerve injury this is a threshold injury unless that particular nerve injury manifests in two of the five signs of radiculopathy.
Method of assessment
Part 5 of the Guidelines contain the procedure for assessing whether an injury resulting from the motor accident is a threshold injury for the purposes of the Act. In respect of the medical assessment of whether an injury is a threshold injury or not, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clause 5.4 suggests that the method of assessment set out above appears to be directed to the insurer and the medico-legal or other experts retained by the insurer.
There are no other provisions with respect to the assessment of threshold injuries by claimants, their medio-legal experts or Medical Assessors. The Panel is proceeding on the basis that the provisions in Part 5 apply in this Review.
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 Personal Injury Commission (Commission) for determination.
Chapter 7, Division 7.5 of the Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment and the Review of medical assessments by this Panel.
Applications for review of a medical assessment under s 7.26 are made to the President of the Commission on grounds that the assessment “was incorrect in a material respect” (s 7.26(1)). If the President, or his delegate is satisfied “there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect” then the President arranges to the application to be referred to a review panel consisting of a Member of the Commission and two Medical Assessors (s 7.26(2) and (2B)).
The review is not necessarily confined to the issues raised in the application (or the reply) but is “a new assessment of all the matters with which the medical assessment is concerned” (s 7.26(3A)).
Rule 128 of the Personal Injury Commission Rules 2021 (the Rules) permits the Panel to determine its own proceedings and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.
ASSESSMENT UNDER REVIEW
Medical Assessor Neil Berry assessed Mr Berber on 11 March 2024 and issued his certificate on 28 March 2024. The Panel summarises his certificate below:
[1] Medical Assessor Berry set out the background of the matter, noting that there was a dispute as to whether the injury caused by the accident is a threshold injury under the Act.
[2] Medical Assessor Berry then set out the threshold injury disputes to be referred for further assessment, which included the following:
· cervical spine injury to neck;
· bilateral shoulders injury;
· thoracic spine injury – lower back injury, and
· lumbar spine – injury.
[4]-[7] Medical Assessor Berry briefly summarised the submissions by the parties and referred to the documents which he considered in his assessment.
Medical Assessor Berry noted that Mr Berber had attended the assessment with a Serbian interpreter.
Medical Assessor Berry took a pre-accident history of Mr Berber, noting that he was 65 years old at the date of assessment and had worked as a welder.
Medical Assessor Berry then set out a brief history of the accident, noting that
Mr Berber’s vehicle was stopped at a traffic light when it was rear ended and his vehicle was pushed into the vehicle in front. Mr Berber drove himself home.
[11]-[12] Medical Assessor Berry then set out the history of symptoms and treatment following the accident, including pain in his neck, back, and across both shoulders, the left being worse than the right. Medical Assessor Berry noted that since the accident, Mr Berber had developed pain in the left groin and was diagnosed as having a left inguinal hernia which was repaired laparoscopically by Dr Fedorine at Campbelltown Hospital.
Medical Assessor Berry took note of Mr Berber’s current symptoms, including pain in both shoulders, the left being much worse than the right.
[15]-[21] Medical Assessor Berry undertook a clinical examination of Mr Berber and the results were set out from [15]-[21]. There was a finding of restricted range of movement (ROM) of the shoulders, and the Panel reproduces the table drawn up by Medical Assessor Berry below:
Shoulder Movements
Active ROM measured RIGHT
Active ROM measured LEFT
Flexion
140°
90°
Extension
40°
40°
Adduction
40°
40°
Abduction
140°
90°
Internal Rotation
90°
50°
External Rotation
90°
60°
[22] Medical Assessor Berry referred to Dr Robert Breit’s report of 26 March 2020 who found that Mr Berber had a frozen shoulder which he described as a self-limiting condition.
Medical Assessor Berry then referred to the report of Professor Murrell dated
20 January 2020 which noted that Mr Berber’ had left shoulder impingement and mild glenohumeral joint arthritis, but no rotator cuff tear. Dr Murrell diagnosed a frozen shoulder secondary to the accident.[23] Medical Assessor Berry referred to the reports of Dr Murrell dated 29 November 2021 and 15 June 2023 advocating that Mr Berber had a left frozen shoulder and that he should undergo an arthroscopic capsular release.
Further, he referred to the assessment certificate of Medical Assessor Alan Home of
27 April 2021, listing cervical spine, lumbar spine, right shoulder and left shoulder as minor injuries for the purposes of the Act.[25] Medical Assessor Berry then dealt with his determinations at [25], finding that
Mr Berber suffered hyperextension injuries to the cervical spine and lumbar spine and direct blows to the shoulders in the accident.[26] Medical Assessor Berry continued that there was soft tissue injuries to the cervical spine and lumbar spine without radiculopathy, he had an insertional tear of the right supraspinatus tendon and infraspinatus tendon and subacromial bursitis of the left shoulder with frozen shoulder.
[27] Medical Assessor Berry determined that injuries to the cervical spine, right shoulder, left shoulder, and lumbar spine were caused by the accident.
[28] Medical Assessor Berry determined that the injuries to the thoracic spine were not caused by the accident.
[29] Medical Assessor Berry set out the provisions of the Act as to threshold injury. Medical Assessor Berry noted that Mr Berber had no evidence of a rupture of the surrounding structures in the neck, back and left shoulder and therefore these injuries are threshold injuries. The injury to the right shoulder where there is imaging evidence of an insertional tear in the tendons is a non-threshold injury.
[30] Medical Assessor Berry concluded that the injuries to the cervical spine, left shoulder, and lumbar spine were threshold injuries under the Act.
SUBMISSIONS
Submissions of the claimant dated 27 September 2023
The Panel briefly summarises the submissions of Mr Berber of 27 September 2023 by reference to paragraph numbers:
“[2] He has been diagnosed with the following injuries by medico-legal medical expert, Dr Drew Dixon:
(a)Head injury without loss of consciousness and no amnesia for the accident details;
(b)Whiplash injury to his neck with radicular complaint with occipital headaches and intermittent paraesthesia in the left hand with post traumatic stiffness with dysmetria, facet arthralgia and C5/6 disc protrusion with extension and near complete effacement of the CSF space with anterior indentation of the spinal cord with spinal cord compression and severe bilateral exit neural foraminal stenosis and aggravation of bilateral facet joint degenerative changes at C7/T1 which is ongoing, as well as aggravation of the facet joint degenerative changes at C2/3 and C4/5;
(c)Post traumatic stiffness of the left shoulder with labral tear and supraspinatus and infraspinatus tendonitis with capsulitis with impingement on abduction;
(d)Seat belt injury to right shoulder with post traumatic stiffness with insertional tear of the supraspinatus and infraspinatus and residual subacromial bursitis;
(e)Back strain injury with post traumatic lumbar stiffness with radicular complaint with sciatica with L3/4 and L4/5 disc protrusions.
[3] The Claimant now lodges an Application for a Further Minor Injury Medical Assessment.
[4] The original Certificate is from Medical Assessor Dr Alan Home. The date of this examination is not disclosed in the Assessor’s Certificate dated 27 April 2021. Assessor Home determined the following injuries were caused by the motor accident but are minor injuries for the purpose of the Act:
•Cervical spine – soft tissue injury, underlying degenerative change.
•Lumbar spine - soft tissue injury, underlying degenerative change.
•Right shoulder - soft tissue injury.
•Left shoulder - soft tissue injury complicated by an adhesive capsulitis now in partial remission.
…
[7] Dr Dixon in his report dated 3 July 2023 noted that the MRI of both shoulders dated 28 October 2019 showed intrasubstance partial-thickness tear of the supraspinatus and lowgrade intrasubstance tear of the insertional fibres of the infraspinatus of the right shoulder and that in the left shoulder, there was supraspinatus and infraspinatus tendinosis without significant tear but there was an undisplaced tear of the anterior to superior labrum with chondral thinning of the glenoid. Accordingly, this diagnosis falls outside the definition of a threshold injury. These scans were available to Assessor Home at the time of his assessment and had actually acknowledged that the claimant suffered from underlying degenerative conditions in the shoulders which were aggravated.
[8] Since then, the personal injury commission has deemed that aggravating injuries to an underlying degenerative disease such as a tear must be considered as non-minor injuries. This was explored by the Review Panel in Venizelou v. AAI Ltd [2021] NSW PICMP 215 in which the Panel accepted that a further tearing of a degenerate lateral meniscus fell outside the definition of a minor injury.
[9] Furthermore, Dr Home’s assessment of underlying degenerative disease is based on absolute fact, but rather, it was a clinical judgment based upon contemporaneous evidence that was obtained after the subject motor vehicle accident. Hence, the Assessor had extrapolated that diagnosis without the existence of evidence prior to the subject accident to actually confirm whether there was in fact underlying degenerative pathology.
[10] It is clear that the accident has at least materially contributed to or resulted in an aggravation of the tears, if not the sole reason for the tears.”
Submissions of the insurer dated 16 April 2024
The Panel briefly summarises the submissions of GIO of 16 April 2024 by reference to paragraph numbers:
[1.2] A medical assessment matter under Schedule 2(2)(e) of the Act, regarding “whether the injury caused by the motor accident is a minor/threshold injury for the purposes of the Act” was referred for determination by the Commission to Medical Assessor Alan Home.
[1.3] Medical Assessor Home issued a Certificate dated 27 April 2021 in which he assessed Mr Berber as suffering from minor injuries to his cervical spine, lumbar spine, right shoulder and left shoulder. He determined that the alleged thoracic spine injury was not caused by the motor accident.
[1.4] Mr Berber referred the matter the Commission for a further medical assessment pursuant to s 7.24(2) of the Act.
[1.5] Medical Assessor Berry issued a Certificate dated 28 March 2024 in which he assessed Mr Berber as suffering from a non-minor injury to her lumbar spine.
[3.1] GIO submits that the Certificate of Medical Assessor Berry was incorrect in a material respect on the grounds that:
(a) he failed to respond to GIO’s argument that the radiological findings evident the MRI of the right shoulder on 28 October 2019 were incidental findings and not causally related to the subject accident;
(b) he failed to provide sufficient reasons and/or disclose his actual path of reasoning, and
(c) he failed to adequately consider and review all relevant records as required by cl 5.6 of the Motor Accident Guidelines (the Guidelines).
[3.2] The Medical Assessor was required to assess whether the alleged right shoulder injury was a threshold injury under Schedule 2(2)(e) of the Act.
[3.3] On page 8 of his certificate under ‘Causation and reasons,’ Medical Assessor Berry stated:
“Mr Berber has a history of being involved in a motor accident where his vehicle was rearended and pushed into the vehicle in front. He suffered hyperextension injuries to the cervical spine and lumbar spine and direct blows to the shoulders as a result of the seatbelt.”
[3.4] Medical Assessor Berry went on to conclude under ‘Diagnosis and reasons’:
“In the left shoulder, he has arthritis. In the right shoulder, he has right supraspinatus and infraspinatus tendon tear which is not a threshold injury…
The injury to the right shoulder where there is imaging evidence of an insertional tear in the tendons is a not-threshold injury.”
[3.5] There was a dispute between Mr Berber and GIO as to whether the radiological findings, including the right supraspinatus and infraspinatus tendon tear, on MRI of the right shoulder on 28 October 2019 were causally related to the subject accident: see insurer’s internal review decision dated 4 March 2020, page 62 of insurer’s bundle:
“…while you were provided with a diagnosis of an injury to the Right Shoulder by your GP, your GP issued a referral to scan both of your Shoulders, however, you GP did not state on the referral that the injury or symptoms resulted from the subject MVA. Following the MRI Scan, you have not undergone any assessments or treatments to your Right Shoulder. In particular, the writer submits that neither your Physiotherapist nor Orthopaedic Surgeon assessed or diagnosed your Right Shoulder injury, however, they assessed and provided treatment to your Left Shoulder. The writer further notes that the scan did not identify any significant effusion about one month post MVA and it is therefore likely that the identified partial tears were incidental findings and not causally related to the subject accident.”
[3.6] At no stage did Medical Assessor Berry consider and/or address whether the radiological findings in the right shoulder were incidental in nature.
[3.8] The only reason provided by Medical Assessor Berry for finding that the right supraspinatus and infraspinatus tendon tear was causally related to the accident was that Mr Berber suffered ‘direct blows to the shoulders as a result of the seatbelt.’
[3.9] With respect to the Medical Assessor, a seatbelt cannot result in a direct blow to the shoulder, and certainly cannot result in a direct blow to both shoulders.
[3.14] Whilst Medical Assessor Berry acknowledged the Certificate of Medical Assessor Home dated 27 April 2021, he gave no consideration to the Medical Assessor’s findings on page 8 wherein he found:
“I am satisfied Mr Berber sustained a soft tissue injury to the right shoulder. He was wearing a seatbelt at the time of the impact. Whilst there is MRI scan evidence of intrasubstance partial thickness tearing of the posterior two thirds of the supraspinatus tendon and intrasubstance partial thickness tear of the insertional fibres of the infraspinatus tendon, these have the appearance of longstanding degenerative change rather than acute injuries caused by the subject accident. The tears are intrasubstance and widespread rather than reflecting a discrete acute traumatic tear.
I am satisfied that the above injuries are minor injuries. The injuries reflect soft tissue injuries…”
[3.15] GIO relied on the certificate of Medical Assessor Home in reply to Mr Berber’s application. In GIO’s submission, Medical Assessor Berry ought to have given consideration to Medical Assessor Home’s findings in circumstances where his findings were consistent with GIO’s argument that the radiological findings evident the MRI of the right shoulder on 28 October 2019 were incidental findings and not causally related to the subject accident.
Reply submissions of the claimant dated 7 May 2024
Mr Berber’s counsel, Elizabeth Welsh, made submissions in reply of 7 May 2024 which the Panel briefly summarises by reference to paragraph numbers:
[2] At paragraph 3.3 of its Submissions GIO states:
“3.3 On page 8 of his Certificate under “Causation and Reasons,” Assessor Berry stated:
‘Mr Berber has a history of being involved in a motor accident where his vehicle was rear-ended and pushed into the vehicle in front. He suffered hyperextension injuries to the cervical spine and lumbar spine and direct blows to the shoulders as a result of the seatbelt’.
And paragraph 3.4:
3.4 Assessor Berry went on to conclude under “Diagnosis and Reasons;”: “In the left shoulder, he has arthritis. In the right shoulder, he has right supraspinatus and infraspinatus tendon tear which is not a threshold injury …
The injury to the right shoulder were [sic] there is imaging evidence of an insertional tear in the tendons is a not – threshold injury.”
[3] Dr Berry’s statement as set out at 3.3 above is a finding as to the causation of the connection between the right supraspinatus and infraspinatus tendon tear and direct blows to the shoulders as a result of the seatbelt. In that context it is significant to note that the sash of the seatbelt was across Mr Berber’s right shoulder as he was driving the vehicle.
[4] It is submitted that that is a simple and straightforward statement of causation. It must be read in the context of a man who had no shoulder symptoms before the accident. When, in this case there was a significant rear end and frontal impact the potential for blows to the shoulders is in relation to the impact in each direction. Again that is a straightforward statement in the context of a rear end and then frontal collision involving two significant impacts. The fact of those impacts is set out in the reasoning process of Medical Assessor Berry as extracted at page 3.3 of GIO’s submissions.
[5] Medical Assessor Berry was not obliged to consider under an individual heading the issue of whether the radiological findings in the right shoulder were incidental in nature as suggested by GIO at paragraph 3.6.
[6] GIO’s contention at paragraph 3.9 that “a seatbelt cannot result in a direct blow to the shoulder, and certainly cannot result in direct blow to both shoulders” takes too narrow a view of the circumstances of the accident. It is the fact of the seatbelt holding the driver of the vehicle in his seat when the vehicle suffers a rear and then a front impact which causes his body to be struck either by the seatbelt or the seat itself in the forward and backward movement involved with those impacts.
…
[8] Medical Assessor Berry made specific reference to those scans in addition to an X-ray of the left shoulder dated 20 January 2020 and an ultrasound of the left shoulder of the same date.
[9] The MRI scans of both shoulders dated 28 October 2019 must be considered in light of the clinical context in which they were performed. Mr Berber was working on a full time basis as a formwork labourer up until the time of the accident. He made a contemporaneous complaint about his shoulders in his application for personal injury benefits on 5 July 2019.
[10] The clinical record of Dr Tomka of 20 June 2019 records the following:
“On examination limited ROM in neck, upper and lower back and both shoulders. Injury to neck, upper and lower back, both shoulders injury. Physio.”
[11] Similar complaints of pain were recorded by Dr Tomka on 1 July 2019.
[12] Following the MRI scans on 28 October 2019 Dr Tomka recorded the following:
“Left shoulder fractured labarum, right shoulder partial tear. Orthopaedic surgeon.”
[14] In the right shoulder, he finds that “He has a right supraspinatus and infraspinatus tendon tear which is not a threshold injury”.
[15] Medical Assessor Berry specifically referred to the Medical Assessment Certificate of Medical Assessor Home at paragraph 23 of his reasons.
[22] The issue as agitated by GIO in relation to Medical Assessor Home is not whether the pathology identified by Dr Berry was present but whether it may have been pre-existing. By undertaking his statutory task and applying part 5 of the Guidelines
Dr Berry has formed the opinion that Mr Berber’s right shoulder problems were not pre-existing.
RE-EXAMINATION BY THE PANEL
Medical Assessors Mohammed Assem and Les Barnsley examined Mr Berber at the Commission’s Medical Suites on 13 May 2025 on behalf of the Panel. He was accompanied by his wife, Jordana Berber, and had the assistance of an interpreter of the Serbian Language (Dusica Javanovic-Palic).
History taken by the Panel
Mr Berber had been working as a formwork carpenter prior to the motor vehicle accident. He specifically denied any prior problems with shoulder neck or back pain. He said there were no restrictions on his work. The only other medical problem he had was some hypercholesterolemia for which he was taking rosuvastatin five milligrams daily.
The accident
On the 19th of June 2019 he was involved in a motor vehicle accident. He was the seat belted driver of a Toyota Camry which was either stationary or slowing to a stop behind another vehicle at some traffic lights. He was then hit from behind without warning by a third vehicle. The impact shunted him into the car in front. He recalls striking the roof of his car with his head.
He did not recall any direct impact with the shoulder but did report that the steering wheel appeared bent after the accident. Neither police nor ambulance attended the scene.
At the scene he became aware of neck and left more than right shoulder pain, and some low back pain. He indicated that that left shoulder was worse and the pain was present over the anterior and posterior shoulder. Similar symptoms but less severe were present on the right side. On specific questioning he was unsure how he had injured the shoulder.
Treatment subsequent to the accident
Mr Berber was seen by his local doctor Dr Tomka the following day, who prescribed analgesia and recommended some physiotherapy.
Symptoms after the accident
Over time he described increasing neck and left shoulder pain. He also noted that he had loss of movement in the left shoulder.
Because of persistent symptoms in the neck back and both shoulders he progressed to MRI scans which were performed on 9 July 2019 and 22 October 2019.
The scan of his cervical spine taken on the 9th of July 2019 reports multilevel degenerative change with cervical spinal canal narrowing at C5/6. The narrowing is caused by a moderate disc osteophyte complex. There is also ligamentum flavum thickening with near complete effacement of the CSF space. There is a small disc osteophyte complex at C45 and a small disc osteophyte complex at C67 with right exit foraminal narrowing due to prominent uncovertebral osteophyte with possible impingement of the exiting C7 nerve root.
These changes are degenerative and not traumatic in origin. The presence of osteophytes is indicative of longstanding bony changes. Similarly, the ligamentum flavum thickening is a result of longstanding degenerative change.
The cervical Spine MRI scan was repeated on the 22 October 2019. The report describes similar findings to those noted above. A further cervical spine MRI scan was performed on the 23 May 2023. This again reports widespread degenerative change with disc and bone causing foraminal and canal narrowing. Reactive changes are noted in the C5/6 vertebral endplates. These are again features of degeneration and have developed subsequent to October 2019. They were therefore not related to the accident.
Diagnostic investigations after the accident
The MRI scan of the lumbar spine on 9 July 2029 was reported as showing widespread degenerative changes, with multilevel disc protrusion and contact with several nerve roots. The radiologist concludes there is “degenerative change within the lumbar spine”. There were no features of acute trauma.
An MRI scan of the right shoulder dated 28 October 2019 was reported as showing intrasubstance partial thickness tears of the supraspinatus and infraspinatus tendons.
An MRI scan of the left shoulder dated 28 October 2019 was reported as showing mild tendinosis of the supraspinatus and infraspinatus tendons, and an undisplaced anterior labral tear of the glenoid “probably chronic”.
Suspicion of frozen shoulder on the left-hand side and referral to Dr Murrell
Because of suspicion of a frozen shoulder on the left side, he was referred to Dr Murrell, who offered him surgery. This has not taken place.
Subsequent symptoms
Over time he has had slight improvement in his left shoulder symptoms, with less pain and increased range of motion.
He has had continuing pain in the right shoulder, neck, and low back.
His neck pain extends across the lower part of the neck on both sides. He finds it is made worse by certain postures. He gets occasional paraesthesia affecting the right or left hand. This affects the entire hand. It typically occurs two to three times a week.
His right shoulder pain is present over the anterior and posterior part of the shoulder joint itself. It was confirmed with Mr Berber that this had only been present since the accident.
His low back pain is present over the mid to lower lumbar region bilaterally.
In 2024 Mr Berber was diagnosed with bowel cancer. He had surgery and chemotherapy. He has subsequently developed some paraesthesia in both feet. This is a recognised complication of chemotherapy.
Currently Mr Berber was being treated with Panadeine forte for his musculoskeletal pains and continues to take cholesterol lowering medication. He is not receiving any physical therapy at present.
Clinical examination
On examination, his height was 178cm and his weight was 80kg.
On examination of the cervical spine there was no guarding or spasm. Flexion and extension were 75% of what would be expected right rotation was 75% of expected and left rotation was 50% of expected. Right and left lateral flexion were restricted to 25%. Upper limb neurological examination demonstrated that power was globally decreased with a give way pattern. His biceps, triceps and supinator reflexes were present but globally reduced. Light touch sensation was intact except for the fingertips.
[26]The circumference of both upper limbs was assessed 10cm above and 10cm below the lateral epicondyle. Both upper arms measured 29cm in circumference and both forearms measured 2cm in circumference.
On examination of the lumbar spine, he had a flattened lumbar lordosis and hypertonic para lumbar musculature. There was however no guarding or spasm. Flexion and extension were 30% of expected. Lateral flexion was symmetrically reduced to 25% of expected.
[28]Straight leg raising was 30° on each side precipitating low back pain but he had negative sciatic stretch tests. Power was normal in the lower limbs. Both knee jerks could be elicited, but there was only a flicker in each ankle jerk. Light touch sensation was decreased in a stocking distribution in both legs. There was no dermatomal sensory loss.
[29] The circumference of the thighs was assessed 10cm above the upper pole of the Patella. The circumference was 44cm on each side. The maximum circumference of the calf was 37cm on the right and 37.5cm on the left.
Shoulder movements were measured with a goniometer, and the following table describes the findings in degrees,
| Flexion | Extension | Abduction | Adduction | External Rotation | Internal Rotation | |
| Right | 130 | 40 | 110 | 0 | 70 | 70 |
| Left | 110 | 30 | 90 | 0 | 30 | 70 |
The Panel then considered the question as to whether he has sustained a threshold or non-threshold injury to the cervical spine, lumbar spine or shoulders.
With regard the cervical spine, he would need to have a partial or complete tear of tendon, ligament, menisci or cartilage or have radiculopathy of the upper limbs to meet criteria for a non-threshold injury. On the cervical MRI scan, the presence of osteophytes, degenerative arthritis at each level and the ligamentum flavum thickening all argue for the cervical spine disc changes to be pre-existing and degenerative in origin. There was no evidence on the scan of any acute injury to tendon, ligament, menisci or cartilage to make the diagnosis of a non-threshold injury. The subsequent scan in 2023 reports degenerative disease which appears to have worsened. This is the natural history of spinal degeneration.
For radiculopathy to be present, two or more of the following features need to be present. Loss or asymmetry of reflexes; positive sciatic nerve root tension signs; muscle atrophy and/or decreased limb circumference; muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution; reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution. These were not present on the re-examination of the upper limbs.
Similar considerations apply to the injury to the lumbar spine. As noted above, the MRI scan of the lumbar spine on 9 July 2029 is reported as showing widespread degenerative changes, with multilevel disc protrusion and contact with several nerve roots. The radiologist concludes there is “degenerative change within the lumbar spine”. There were no features of acute trauma and specifically no features are reported to indicate partial or complete tear of tendon, ligament, menisci or cartilage.
His re-examination did not demonstrate two of the five requisite features of radiculopathy. The clinical findings of decreased ankle jerks and stocking pattern decreased sensation are consistent with a peripheral neuropathy, and not radiculopathy.
With regard the left shoulder, Mr Berber reported early pain, which would indicate some type of injury related to the motor vehicle accident. This subsequently progressed to a frozen shoulder which is a known complication of injuries to many structures of the shoulder, including soft tissue injuries. The diagnosis of frozen shoulder did not, in itself represent a non-threshold injury.
The key issue in determining whether he has a non-threshold injury to the left shoulder is whether the accident caused the tear in the labrum. Traumatic labral tears typically occur in the context of dislocation, subluxation or significant uncontrolled movements of the shoulder joint which force the numeral head out of the glenoid socket. The injury described by Mr Berber did not meet these descriptors. The medical assessors considered that the accident could not have caused the labral tear.
Furthermore, the changes noted on the left shoulder MRI were accompanied by features suggesting the tear was longstanding, specifically the chondral wear, which would take months or years to develop.
Conclusions
The Panel therefore concluded that the left shoulder injury was a threshold injury and, in any event, not causally connected with the accident
[40]With regard the right shoulder the Panel noted that Mr Berber had been involved in an accident that had both a rear-end and a front-end impact. This would most likely have involved him being forced forward against the seat belt over the right shoulder. The medical assessment was therefore that the accident could have caused injury to the shoulder including tears in the supraspinatus and infraspinatus tendons as noted on the MRI scan described above.
The Panel considered that the first criteria for causation, that the accident could have caused the injury, was met. It was noted that he had early onset of right shoulder pain after the accident and that he had prior full function in an active physical job. It was therefore found that on the balance of probabilities the new symptoms did relate to the tears that was seen on the MRI scan and the accident probably did cause the tears.
He had a non-threshold injury to the right shoulder.
CONSIDERATION OF THE SUBMISSIONS OF THE PARTIES
The Panel noted, and accepted as persuasive, Mr Berber’s reply submission at [4] that
Mr Berber had no shoulder symptoms before the accident and that this was a case where the evidence supported a conclusion as that “…a significant rear end and frontal impact (giving rise to) the potential for blows to the shoulders (as)…set out in the reasoning process of Assessor Berry as extracted at 3.3 of GIO’s submissions.”Further, the Panel noted the submissions by counsel for Mr Berber at [6]:
“GIO’s contention at paragraph 3.9 that “a seatbelt cannot result in a direct blow to the shoulder, and certainly cannot result in direct blow to both shoulders” takes too narrow a view of the circumstances of the accident. It is the fact of the seatbelt holding the driver of the vehicle in his seat when the vehicle suffers a rear and then a front impact which causes his body to be struck either by the seatbelt or the seat itself in the forward and backward movement involved with those impacts.”
Further, the Panel notes, as submitted by Mr Berber’s counsel that “Mr Berber was working on a full time basis as a formwork labourer up until the time of the accident. He made a contemporaneous complaint about his shoulders in his application for personal injury benefits on 5 July 2019.”
The Panel further notes the clinical record of Dr Tomka that Mr Berber complained of pain in the neck, both shoulders, and upper and lower back, when he saw him on 20 June 2019 and that he made similar complaints of pain in the shoulders on 1 July 2019.
PANEL’S CONCLUSIONS
Mr Berber did suffer a traumatic injury to his right shoulder in the accident as described earlier in these reasons, and that such injury is a non-threshold injury.
The Panel concluded that that the following injuries are threshold injuries for the purposes of the Act:
· cervical spine;
· left shoulder, and
· lumbar spine.
The Panel concluded that the following injury is a non-threshold injury for the purposes of the Act:
· right shoulder.
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