Chen v Allianz Australia Insurance Limited
[2025] NSWPICMP 17
•8 January 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Chen v Allianz Australia Insurance Limited [2025] NSWPICMP 17 |
CLAIMANT: | Haiming (Thomas) Chen |
INSURER: | Allianz |
REVIEW PANEL | |
MEMBER: | Nolan |
MEDICAL ASSESSOR: | Kenna |
MEDICAL ASSESSOR: | Gibson |
DATE OF DECISION: | 8 January 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; right shoulder injury; determination of causation and classification as threshold injury under section 7.23(1); whether the right shoulder pathology, including labral tear and tendinopathy, was caused by the motor accident; claimant’s work history as a gyprocker and pre-existing imaging indicating degenerative changes reviewed; whether imaging and symptoms consistent with acute trauma; extensive analysis of pre-accident ultrasound and MRI findings; biomechanical report assessing forces from low-energy collision considered; claimant’s credibility questioned due to inconsistencies in reporting pre-existing conditions and post-accident employment attempts; treatment and care, including cortisone injection, determined to address degenerative changes, not accident-related, pathology; labral tearing confirmed as non-displaced and within scope of threshold injuries; Held – right shoulder injury caused by degenerative processes, not the motor accident; injury classified as a threshold injury; treatment not causally related to the accident. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate of Medical Assessor David Gorman dated 12 June 2023. The Panel issues a new certificate determining as follows. Assessment of threshold injury 2. The following injuries caused by the motor accident: (a) left shoulder – left shoulder rotator cuff strain with associated impingement signs; (b) cervical spine – cervical spine musculoligamentous strains; (c) right knee – musculo-ligamentous sprain, and (d) lumbar spine – lumbar spine musculo-ligamentous strains are threshold injuries for the purposes of the Motor Accidents Injuries Act 2017. 3. The following injury was not caused by the motor accident: (a) right shoulder – right shoulder rotator cuff strain/partial tear with associated impingement signs. Assessment of treatment and care – causation 4. The following treatment and care: (a) an ultrasound guided cortisone injection right shoulder · does not relate to an injury caused by the motor accident. |
STATEMENT OF REASONS
INTRODUCTION
Haiming (Thomas) Chen, the claimant sustained injuries in a motor vehicle accident on 9 November 2019 (the motor accident). The collision occurred when another vehicle swerved into the claimant’s lane of travel, impacting the left side of the claimant’s vehicle. The claimant asserts that he sustained physical injuries caused by the motor accident, specifically to his right shoulder, left shoulder, cervical spine, lumbar spine, and right knee.
The insurer is liable to compensate the claimant under the Motor Accident Injuries Act 2017 (the Act) for damages and/or statutory entitlements arising from the motor accident.
THE MEDICAL ASSESSMENT MATTERS
Threshold injuries
The matters referred by the Personal Injury Commission (the Commission) for assessment as to whether the following injuries claimed to have been caused by the motor accident are “threshold injuries”, as that term is defined by the Act:
(a) left shoulder rotator cuff strain/partial tear with associated impingement signs;
(b) cervical spine discogenic issues with C6/7 radiculopathy and cervical spine musculoskeletal strains;
(c) right shoulder rotator cuff strain/partial tear with associated impingement signs; right knee musculo-ligamentous sprain with internal derangement, and
(d) lumbar spine discogenic conditions, lumbar spine musculo-ligamentous strains with discogenic/neurogenic pathologies, with the right side worse than the left.
Whether an individual’s injuries are classified as threshold or non-threshold under the Act significantly affects entitlement to statutory benefits and damages. Statutory benefits for loss of earnings and treatment expenses cease after 26 weeks if “the person’s only injuries resulting from the motor accident were minor injuries.” Furthermore, a claimant cannot recover damages under the Act if their “only injuries resulting from the motor accident were minor injuries.” The classification of the claimant’s right shoulder injury is therefore critical to determining his ongoing entitlements.
The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented to on 28 November 2022, with various amendments coming into force on 1 April 2023. Following these amendments, the terminology “minor injury” was replaced with “threshold injury,” and “minor injuries” became “threshold injuries.” Crucially, the substantive definition of what constitutes a minor injury remains unchanged and continues to apply to threshold injuries.
Any reference within these reasons to “minor injury” is to be understood as “threshold injury.” Similarly, references to the term “minor” when describing an injury allegedly caused by the motor accident should be interpreted as “threshold.”
A threshold injury is defined under s 1.6 of the Act as including a “soft tissue injury” or “a psychological or psychiatric injury that is not a recognised psychiatric illness.” Sub-section 1.6(2) of the Act provides that a “soft tissue injury” means:
“[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.”
The Act also allows for regulations to specify which injuries are included or excluded as threshold injuries. Clause 4 of Part 1 of the Motor Accident Injuries Regulation 2017 (MAI Regulation) explicitly includes within the definition of threshold injury “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy).”
Part 5 of the Motor Accidents Guidelines (the Guidelines), promulgated under s 10.2 of the Act, provides the procedural framework for determining whether an injury caused by a motor accident qualifies as a threshold injury. Version 9.1 of the Guidelines, effective from 1 April 2023, applies to motor accidents occurring on or after 1 December 2017.
The Guidelines prescribe the following process for determining threshold injuries:
(a) the assessment must determine whether the injury is a soft tissue injury, or a threshold psychological or psychiatric injury caused by the motor accident.
(b) Insurers must not require diagnostic imaging solely to determine if an injury qualifies as a threshold injury, as imaging is not considered necessary for this purpose.
(c) A diagnosis for a threshold injury decision must be based on a clinical assessment by a medical practitioner or suitably qualified person independent of the insurer.
(d) The assessment must include evidence derived from:
(i)a comprehensive and accurate medical history, including pre-accident conditions;
(i)a review of all relevant records available at the time of the assessment;
(i)a detailed account of the injured person’s symptoms;
(i)a thorough physical and/or psychological examination, and
(i)diagnostic tests provided these correspond with symptoms and findings on examination.
For injuries to the neck and spine, the Guidelines at clauses 5.7-5.9, further address the necessity of assessing radiculopathy:
(a) determining whether an injury to the neck or spine qualifies as a soft tissue injury requires an assessment of radiculopathy.
(b) Radiculopathy is defined as dysfunction of a spinal nerve root where two or more clinical signs are present, including:
(i)loss or asymmetry of reflexes;
(i)positive sciatic nerve root tension signs;
(i)muscle atrophy or decreased limb circumference;
(i)anatomically localised muscle weakness, and
(i)reproducible sensory loss aligned with a spinal nerve root distribution.
(c) If neurological symptoms do not meet these criteria, the injury will be assessed as a threshold injury.
In Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372; 100 MVR 232 at [35], Wright J addressed the issue of causation in determining whether an injury qualifies as a threshold injury. His Honour observed that while causation is not explicitly addressed in Part 5 of the Guidelines, it is dealt with in Part 6, which pertains to assessments of permanent impairment. Wright J concluded that the principles applicable to causation in Part 6 should also apply to determinations of threshold injuries.
Part 6 of the Guidelines defines causation as requiring both a medical determination and a non-medical informed judgment. Specifically, causation requires verifying:
(a) whether the alleged factor could have caused or contributed to the impairment (a medical determination), and
(b) whether the alleged factor did cause or contribute to the impairment (a non-medical determination).
Wright J further explained that causation does not require the motor accident to be the sole cause, provided it was a contributing cause that was more than negligible. This aligns with the broader approach articulated in the Guides and the principles applied in common law.
In AAI Ltd T/as GIO v McGiffen [2016] NSWCA 229; 77 MVR 348, the Court of Appeal stressed that causation requires considering whether the motor accident materially contributed to the injury, even if there were other contributing factors.
Treatment dispute
Additionally, a matter referred to the Commission included a dispute concerning treatment and care, specifically whether an ultrasound-guided cortisone injection for the right shoulder is reasonable and necessary in the circumstances.
Pursuant to Schedule 2, cl 2 of the Act, these matters are declared to be medical assessment matters, namely, whether the “injury caused by the motor accident is a minor injury for the purposes of the Act,” whether “any treatment and care provided or to be provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident,” and whether the treatment will improve the claimant’s recovery as outlined in s 3.28 of the Act.
Medical assessment matters under Division 7.5 of the Act are initially determined by a Medical Assessor and, under section 7.26 of the Act, may be reviewed by a Review Panel.
MEDICAL ASSESSMENT SUBJECT OF THE REVIEW
The medical assessment matters were initially referred to Medical Assessor David Gorman (the Medical Assessor), who issued a Medical Assessment Certificate dated 12 June 2023 (the MAC).
The Medical Assessor identified the claimant’s bilateral shoulder movements were restricted, with the right shoulder being the most severely affected. Range of motion (ROM) measurements for the right shoulder included flexion at 40° (compared to 110° on the left) and abduction at 50° (compared to 130° on the left). Lumbar spine movements were reduced to two-thirds of normal, but no guarding or radiculopathy was observed. The claimant exhibited decreased pin-prick sensation over the right calf but had otherwise normal reflexes, power, and sensation in the lower limbs. His gait and knee movements were normal, with no ligament instability or swelling.
In terms of medical history, the Medical Assessor noted the claimant’s pre-existing conditions, particularly a 2018 (scil. 2013) ultrasound of the right shoulder that identified subdeltoid and subacromial bursitis without structural tears. The claimant’s reported post-accident symptoms included persistent pain, numbness, and weakness in the right shoulder, along with difficulties in daily activities and work-related functions. The claimant also experienced lumbar spine discomfort and functional impairments, including pins and needles in the right leg. The Medical Assessor attributed some of these symptoms to the accident but linked others to underlying degenerative changes exacerbated by the collision and subsequent inactivity.
The Medical Assessor reviewed radiological findings, which included a December 2019 MRI showing posterior labral tearing in the right shoulder, degenerative disc disease in the cervical spine, and L4/5 disc bulging in the lumbar spine. He concluded that these findings were consistent with chronic degenerative changes rather than acute trauma caused by the accident. Michael Griffiths’ (Griffiths) biomechanical report further supported this conclusion, stating that the low-energy impact of the collision was insufficient to cause severe injuries. Griffiths’ analysis determined that the energy transfer was minimal and that the pathology identified on imaging aligned with long-term degenerative progression rather than acute injury mechanisms.
The Medical Assessor also assessed the appropriateness of the disputed treatment, specifically an ultrasound-guided cortisone injection for the right shoulder. He concluded that the injection was causally related to the accident and was both reasonable and necessary in the circumstances. He determined that the injection would reduce inflammation and pain, improving recovery, and described it as standard medical practice for managing bursitis and impingement.
Regarding the classification of injuries, the Medical Assessor evaluated each condition under the statutory definitions of “threshold injuries.” He concluded that none of the injuries involved nerve damage, complete or partial ruptures of tendons, or other exclusions from the statutory definition of soft tissue injuries. He classified all injuries, including the right shoulder rotator cuff strain and partial tear with associated impingement signs, as threshold injuries. While he acknowledged that pre-existing degenerative conditions contributed to the claimant’s symptoms, he noted that the accident likely aggravated these conditions to some degree.
APPLICATION FOR REVIEW
The claimant challenged the conclusion made by the Medical Assessor that the claimant’s right shoulder injury – a rotator cuff strain with partial tear and impingement – was caused by the accident but classified it as a threshold injury.
One of the main errors highlighted in the claimant’s submissions on the application was the Medical Assessor’s incorrect reference to a pre-accident ultrasound as having occurred in 2018 rather than 2013. The claimant’s contended that the Medical Assessor therefore ignored the six years of symptom-free medical history before the accident. He argued that this demonstrated the absence of any pre-existing condition that could account for the tear identified after the accident. Furthermore, the claimant criticised the Medical Assessor’s failure to follow the causation Guidelines, particularly the statutory requirement to establish whether the accident contributed “non-negligibly” to the injury. The submission emphasised that the immediate onset of symptoms and subsequent medical interventions, such as cortisone injections and referrals to specialists, strongly indicated a causal link to the accident.
Another key issue raised was the Medical Assessor’s reliance on opinions from Griffiths, a biomechanical engineer. Griffiths had suggested that the claimant’s shoulder pathology was consistent with natural degeneration, referring to findings from the 2013 ultrasound. The submission argued that Griffiths’ views were outside his area of expertise and inadmissible as evidence regarding medical causation. Moreover, Griffiths’ assertion of “gyprocker’s shoulder” as a diagnosis was unsupported by any medical practitioner or radiologist. The claimant’s representatives argued that the Medical Assessor’s reliance on these opinions undermined the validity of his conclusions and showed a failure to exercise independent judgement.
The submission also highlighted inconsistencies in the certificate, particularly regarding the partial tear in the rotator cuff. Although the Medical Assessor acknowledged the tear, he classified the injury as threshold, contrary to statutory definitions that consider partial ruptures to be non-threshold injuries. The claimant argued that this classification was a demonstrable error and failed to align with the evidence presented. Further, the submission criticised the Medical Assessor for not adequately explaining his reasoning or considering alternative explanations for the tear if it were not caused by the accident. This lack of clarity and internal inconsistency in the certificate, the submission argued, rendered the decision unreasonable.
The insurer opposed the application for review emphasising the minor nature of the accident, which involved a sideswipe collision, causing minimal damage to both vehicles. Fault was admitted, but the insurer contended that the claimant’s injuries were threshold injuries.
The insurer defended the Medical Assessor’s reasoning, asserting that it aligned with statutory and procedural requirements for assessing causation. It supported the use of evidence from Griffiths, a biomechanical and vehicle safety engineer, whose report concluded that the forces generated by the accident were insufficient to cause the pathology observed in the claimant’s shoulder. The insurer argued that biomechanical engineers are qualified to assess the impact of collisions on the human body, and Griffiths’ evidence provided a valid basis for the Medical Assessor’s conclusions. It noted that the claimant did not present a counter-report to challenge Griffiths’ findings.
Regarding the pre-accident ultrasound, the insurer acknowledged the error in the Medical Assessor’s certificate referencing 2018 instead of 2013 but argued this discrepancy was immaterial to the outcome. It highlighted that the absence of reported labral pathology in the 2013 ultrasound did not confirm that the labral tear was caused by the accident. The insurer cited medical literature indicating that ultrasound is less effective at detecting posterior labral injuries than MRI, supporting their position that the lack of findings in 2013 was not probative.
The insurer addressed the claimant’s assertion that the Medical Assessor should have identified an alternative cause for the injury if it was not caused by the accident. It argued that once the Medical Assessor determined the accident was incapable of causing the injury, there was no obligation to explore other causes. Nevertheless, it noted that the Medical Assessor did suggest a degenerative origin for the pathology, consistent with the claimant’s occupation as a right-handed gyprocker, which involved heavy lifting and repetitive motion.
By a decision dated 25 August 2023 the President’s Delegate agreed with the claimant’s submissions that the Medical Assessor’s classification of the right shoulder injury lacked sufficient justification. The failure to address statutory definitions distinguishing partial tendon ruptures from soft tissue injuries raised doubts about the accuracy of the assessment. Additionally, the mischaracterisation of the timing of the claimant’s prior ultrasound as occurring in 2018 rather than 2013 was deemed a material error. This mischaracterisation ignored a significant period during which the claimant had no documented shoulder complaints, further supporting the claimant’s assertion that the injury was causally linked to the accident.
The Delegate also expressed concern over the reliance on Griffiths’ biomechanical report. While the report provided valuable context regarding the nature of the collision, its conclusions on causation exceeded the scope of biomechanical expertise. The Delegate found that the Medical Assessor appeared to adopt Griffiths’ conclusions without adequately reconciling them with the claimant’s clinical presentation and imaging studies. Furthermore, inconsistencies in the evaluation of the cortisone injection raised additional concerns. While the treatment was deemed reasonable and necessary, the Medical Assessor failed to clearly link it to injuries caused by the accident, particularly in light of the emphasis on degenerative changes.
The Delegate concluded that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect, particularly regarding the classification of the right shoulder injury and the evaluation of its causation and treatment. Consequently, the application for review was accepted, and the matter was referred to the Review Panel (the Panel) for reconsideration under section 7.26 of the Act.
REVIEW BY THE REVIEW PANEL
Under cl 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act), new review provisions apply to decisions made by a “new decision-maker,” as defined in cl 14A(1) of Schedule 1 of the PIC Act. Given that the subject medical assessment was conducted on or after 1 March 2021, the new review provisions were applicable. These provisions stipulate that a review panel must comprise two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission. Consequently, the President’s Delegate referred the matter to the designated Panel for assessment.
Part 5 of the PIC Act empowers the Commission to establish rules governing the practice and procedure of proceedings before a review panel. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) dictate that a review panel determines its procedure, including, importantly, the discretion to resolve proceedings solely on the basis of the written application. The review process constitutes a fresh assessment of all issues related to the original medical assessment. However, s 7.25 of the Act permits the review to incorporate any agreements between the parties regarding permanent impairment or causation without the need for reassessment.
Section 7.21 of the Act mandates that the degree of permanent impairment must be assessed in accordance with the Guidelines. Issued under Division 10.2 of the Act, the Guidelines adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (the Guides). While the Guidelines are definitive where they provide specific direction, any issues not addressed within the Guidelines are to be resolved using the Guides.
As stated above, causation of injury is addressed in Part 6 of the Guidelines, which provides a dual framework requiring both medical and non-medical determinations. Clause 6.6 defines causation as requiring two elements: (1) that the alleged factor could medically cause or contribute to the impairment and (2) that it did, in fact, cause or contribute, which necessitates an informed judgment beyond medical considerations. Clause 6.7 emphasises that causation does not require the motor vehicle accident to be the sole cause of the injury; it need only be a contributing cause, provided its contribution is more than negligible. This approach rejects a singular test, recognising the complexity of cases involving multiple contributing factors.
Upon a thorough review of the material before it, the Panel concluded that it was unnecessary to analyse all injuries referred for assessment, apart from the right shoulder, on review. This is because, on the evidence, except for the right shoulder, none of the referred injuries could meet the statutory criteria to be classified as a non-threshold injury under the Act.
A threshold injury is defined in s 1.6 of the Act as including a “soft tissue injury” but excludes injuries to nerves, as well as complete or partial ruptures of tendons, ligaments, menisci, or cartilage. Additionally, for injuries to the neck or spine, the Guidelines require evidence of radiculopathy, defined as dysfunction of a spinal nerve root manifesting through two or more specific clinical signs, such as asymmetry of reflexes, muscle atrophy, or reproducible sensory loss.
In this case, the medical evidence did not establish the presence of radiculopathy for the cervical or lumbar spine injuries. Similarly, there was no indication of nerve damage or ruptures in the left shoulder or right knee. Without such findings, these injuries could not fall outside the definition of a threshold injury. This was consistent with the Medical Assessor’s determination that these conditions were soft tissue injuries under the statutory definition and, therefore, threshold injuries.
The right shoulder injury, however, stood apart because it was the only injury with imaging evidence suggesting possible structural damage. These findings raised the question of whether the injury fell outside the scope of a threshold injury. Consequently, the Panel’s assessment has focused on the right shoulder, as its classification was critical to the claimant’s entitlement to ongoing statutory benefits and damages.
The medical assessment matter dispute between the claimant and the insurer centres on three critical issues under the Act:
(a) first, whether the claimant’s right shoulder injury meets the statutory criteria for classification as a “threshold injury” under Schedule 2, cl 2(e). This determination initially hinges on whether the injury is attributable to the subject motor accident or arises from pre-existing degenerative changes or other factors unrelated to the accident. Further, it requires an analysis and determination as to whether the injury is a soft tissue injury or not.
(b) Second, there is disagreement over whether the treatment and care provided for the right shoulder, including the ultrasound-guided cortisone injection, relate causally to the motor vehicle accident as required under Schedule 2, cl 2(b). This necessitates an evaluation of the connection between the accident and the injury to determine whether the proposed treatment addresses a specific condition resulting from the accident.
(c) Finally, the parties dispute whether the cortisone injection was reasonable and necessary in the circumstances under Schedule 2, cl 2(b) and whether it was likely to improve the claimant’s recovery under Schedule 2, cl 2(c). This assessment involves determining whether the treatment aligns with standard medical practice, effectively addresses the claimant’s symptoms, and is justified by the evidence.
MATERIAL ON THE REVIEW
Pre-accident
On 15 June 2013, the claimant presented to his general practitioner (GP) with pain in the right shoulder. The consultation noted no tenderness and fairly normal shoulder movement but documented pain at 170 degrees of abduction/flexion. The impression was possible tendonitis. A plan for a right shoulder ultrasound (U/S) was made.
On 3 July 2013, Dr Danian Yang recorded the claimant’s continued right shoulder pain with limited ROM. Tendonitis was suspected, and the results of the U/S were pending. The doctor advised the claimant to return for the results in two to three days. A medical certificate was issued during this visit.
The U/S of the claimant’s right shoulder conducted on 3 July 2013 revealed evidence of subacromial and subdeltoid bursitis with impingement. This indicated inflammation of the bursae, which likely caused compression during shoulder movements, leading to pain and reduced functionality. This finding was consistent with the claimant’s reported symptoms of discomfort and restricted range of motion.
The U/S findings did not show evidence of tendinopathy, meaning the tendons in the examined region were free from inflammation or injury at the time of the scan. This result helped rule out tendon-related conditions as a primary cause of the claimant’s symptoms.
In addition to bursitis, synovitis was detected in the acromioclavicular (AC) joint. This inflammation of the synovial membrane was noted to be tender upon clinical examination, correlating with the claimant’s complaints of localised shoulder pain. The AC joint synovitis was likely contributing to the overall discomfort and reduced range of motion in the right shoulder.
The U/S also identified a sebaceous cyst in the right trapezius region. This palpable lesion was characterised as a benign subcutaneous cyst with no atypical features. While unrelated to the primary complaints, the cyst was noted as part of the overall findings.
The report recommended imaging-guided steroid injections to the bursa and/or AC joint. These injections were intended to alleviate inflammation, reduce pain, and potentially improve shoulder mobility. The approach was described as both diagnostic and therapeutic, aiming to provide relief and further clarify the source of the claimant’s symptoms.
On 19 July 2013, Dr Danian Yang reviewed the U/S findings, confirming tendonitis. The consultation discussed the natural progression of the condition and various treatment options, including their benefits and limitations. Management recommendations included the use of non-steroidal anti-inflammatory drugs (NSAIDs) as needed, heat packs, and exercises to tolerance. The claimant was advised to return if symptoms persisted. Additional pathology tests for biochemistry, lipids, and glucose were noted as unremarkable.
Post-accident
The police report outlined the motor accident involving the claimant, who was driving in his lane when another vehicle swerved into it, resulting in a collision with damage to the left side of the claimant’s car. The claimant, a restrained driver, reported right shoulder, neck, and lower back pain but showed no immediate incapacitation or loss of consciousness.
Witness statements and evidence at the scene corroborated the claimant’s account of the collision. The report documented visible vehicle damage consistent with the claimant’s description and noted that medical assessments confirmed soft tissue injuries.
Dr Angela Lam conducted an initial post-accident consultation with the claimant on 14 November 2019, just five days after the motor accident. The claimant presented with complaints of bilateral shoulder pain, with the right shoulder being more severely affected. He also reported associated neck pain, low back pain, and right knee pain. The claimant described difficulty performing daily activities due to pain and stiffness in the right shoulder.
On examination, Dr Lam noted global tenderness over both shoulders, with pain exacerbated by internal rotation and abduction, particularly on the right side. This indicated restricted movement and heightened sensitivity in the right shoulder compared to the left. The assessment suggested an acute inflammatory response secondary to the trauma sustained in the accident.
Dr Lam’s provisional diagnosis included bilateral shoulder injuries, with greater concern for the right shoulder. She referred the claimant for imaging to assess structural damage and recommended physiotherapy to address the functional limitations and pain. NSAIDs were prescribed for pain management, and the claimant was advised to avoid strenuous activities. Additionally, Dr Lam issued a Certificate of Capacity confirming that the claimant’s injuries significantly limited his ability to perform his pre-accident occupational duties.
Dr Lam conducted a follow-up consultation with the claimant on 12 December 2019 to evaluate the progression of his symptoms and treatment outcomes. The claimant continued to report persistent pain and restricted motion in the right shoulder, which remained the primary concern. Pain during specific movements, particularly abduction and internal rotation, continued to limit his functionality.
Dr Lam reviewed the claimant’s progress with physiotherapy, noting that while some improvement was observed, the symptoms persisted, particularly in the right shoulder. Imaging, including an MRI referral for the right shoulder, was discussed to further investigate the underlying cause of the ongoing pain and dysfunction. The MRI was intended to identify any structural abnormalities contributing to the symptoms and inform the next steps in management.
Dr Lam reinforced the importance of adhering to the physiotherapy regimen and continuing with NSAIDs for pain relief. She maintained the claimant’s Certificate of Capacity, acknowledging that his injuries still prevented him from resuming his pre-accident occupational responsibilities.
Dr Lam reviewed the claimant on 23 December 2019. The claimant presented with low back pain (predominant), neck pain, bilateral shoulder pain (worse on the right), and right knee pain. Imaging showed minor cervical spine disease and lumbar spine issues, including L4/5 disc bulging, annular tear, and mild L4 foraminal narrowing. The claimant had started physiotherapy, reporting some relief. Dr Lam recommended conservative treatment, including NSAIDs, and noted that further evaluation with a neurosurgeon might be required if symptoms plateaued, particularly for the lumbar spine. This consultation established a plan focused on managing the injuries conservatively while monitoring progress.
The MRI report dated 24 December 2019 performed on the claimant’s right shoulder further to a clinical history of right shoulder impingement following an injury, with reduced internal rotation, identified low-grade cuff insertional tendinopathy involving the supraspinatus, infraspinatus, and subscapularis muscles, with no evidence of a rotator cuff tear. The teres minor and rotator cuff musculature were normal in appearance.
The acromion demonstrated a slightly hook-like morphology with thickening of the coracoacromial (CA) ligament. There was mild subacromial bursitis, and the acromion was noted to be downsloping. No os acromiale was identified. The acromioclavicular joint (ACJ) shows degenerative osteoarthrosis, evidenced by chondral loss and synovitis, without undersurface osteophytes.
There was posterior labral tearing extending from 11 to 6 o’clock at the labrochondral junction, which was non-displaced and without evidence of a paralabral cyst. The anterior labrum was intact. The long head of the biceps tendon was also intact, with no evidence of tendinopathy or tearing. The glenohumeral joint chondral surfaces and ligaments were normal, with no signs of adhesive capsulitis or neurovascular abnormalities.
In conclusion, the imaging revealed low-grade cuff insertional tendinopathy without evidence of a tear, a slightly hook-like acromion with CA ligament thickening and mild subacromial bursitis, non-displaced posterior labral tearing, and degenerative osteoarthritis of the ACJ with synovitis.
On 6 February 2020, Dr Lam conducted a consultation with the claimant, focusing on his ongoing right shoulder issues. The claimant presented with persistent pain exacerbated by overarm movements, as well as significant limitations in shoulder function. Internal rotation of the shoulder was severely restricted, reaching only the small of the back, and this movement elicited severe pain.
Dr Lam referenced findings from the MRI conducted on 24 December 2019 and identified the above structural abnormalities as consistent with the claimant’s clinical presentation of pain and restricted mobility. She noted that the combination of the labral tear, bursitis, and cuff tendinopathy likely contributed to the claimant’s difficulty with overhead activities and internal rotation.
Dr Alan Dao, orthopaedic surgeon, evaluated the claimant on 20 February 2020, specifically addressing right shoulder symptoms. Dr Dao recorded that the motor accident resulted in global pain in the claimant’s right shoulder, particularly during movement and elevation. The pain disrupted his sleep, occurring two to three times per night, and extended to his neck, lower back, and hip region. The claimant had attended physiotherapy but had not received any injections. On examination, there was marked guarding of the right shoulder with generalised tenderness around the AC joint, bicipital groove, and greater tuberosity. His range of motion was significantly limited by pain, with forward elevation reaching only 90 degrees actively and 100 degrees passively, and internal rotation to L5. External rotation strength was graded as 4, restricted by pain.
The Posterior Jerk test and Apprehension test were both markedly positive for pain. A neurovascular examination revealed a global reduction in sensation in the right arm, though myotomes were intact. An MRI scan of the claimant’s right shoulder revealed a posterior labral tear, subacromial bursitis, and mild tendinosis of the supraspinatus, with no evidence of biceps tendinopathy. A cervical spine MRI demonstrated mild degenerative disc bulging without stenosis.
In his management plan, Dr Dao observed that the claimant’s right shoulder was highly irritable, making it difficult to assess stability. To address this, Dr Dao arranged an ultrasound-guided cortisone injection to reduce inflammation and facilitate a more thorough examination. He planned to review the claimant in two weeks to re-evaluate the shoulder, noting uncertainty about the presence of clinical instability due to the limitations of the initial assessment.
The physiotherapy progress report dated 27 February 2020 detailed the claimant’s ongoing treatment and assessment with a focus on the right shoulder. Treatment began on 21 December 2019, following a referral from Dr Lam. Sessions, conducted twice weekly, had involved electro-physical modalities (EPA), muscle tension relief, joint mobilisation, nerve stimulation, and home exercises.
The claimant continued to experience moderate pain in the lower back, neck, and right shoulder, particularly on the lateral aspect. There was also weakness and a burning sensation in the right shoulder, with symptoms aggravated by lifting, grasping, or gripping with the right hand. This resulted in reduced strength and functional capacity.
Clinical findings for the right shoulder revealed limited active range of movement, with flexion reaching 130 degrees, abduction 120 degrees, and reduced external rotation. There was positive impingement noted on the Empty Can and Hawkins Kennedy tests for both shoulders, with worse symptoms on the right. Palpation of the rotator cuff group and joint line identified tenderness, again more severe on the right side.
Recommendations included the continuation of physiotherapy sessions focused on symptom reduction and mobility improvement, further medical assessments for workplace functionality, and psychological support to address high levels of anxiety and depression.
On 3 March 2020, the claimant underwent the ultrasound-guided right shoulder injection to treat subacromial bursitis. The procedure was conducted using aseptic technique and ultrasound guidance. A 25-gauge fine needle was inserted into the right subacromial bursal space, and a mixture of 1 ml of Celestone and 4ml of 2% lignocaine was injected. The fluid dispersed well, and the claimant tolerated the procedure without complications.
On 12 March 2020, Dr Lam noted persistent pain and restricted range of motion in the right shoulder, despite physiotherapy. The potential for injection therapy was discussed, and further interventions were deferred pending progress.
Dr Dao reviewed the claimant on 3 April 2020 following the cortisone injection for his right shoulder. The claimant reported minimal improvement in his pain, though Dr Dao observed that the shoulder appeared slightly less irritable during the examination. Clinical tests, including the Sulcus sign, Apprehension test, and Posterior Jerk test, were all negative, though stiffness and pain were noted to limit movement, particularly external rotation.
Upon reviewing the MRI scan, Dr Dao identified posterior labral tearing, thickening of the inferior capsule, and loss of the axillary recess, findings that aligned with adhesive capsulitis. He noted that the claimant’s external rotation range was further reduced, consistent with the progression of adhesive capsulitis, a condition that typically resolves over time. Dr Dao advised against surgical intervention at that stage due to its low likelihood of success and potential to worsen symptoms. He recommended managing the condition symptomatically with anti-inflammatory medications and discouraged physiotherapy for the time being, as it could aggravate stiffness. Dr Dao suggested a follow-up in four to six months with a repeat MRI scan if symptoms persisted.
On 13 July 2020, Dr Lam recorded minimal improvement in shoulder function was documented, with the claimant still unable to resume regular work duties. Surgical options were considered if conservative treatments remained ineffective, and Dr Lam advised the patient to seek insurer approval for advanced treatment options.
The Allied Health Recovery Request dated 11 March 2020 identified a rotator cuff tear with associated subacromial bursitis as primary diagnoses for the right shoulder. The claimant presented with pain, reduced range of motion, and functional limitations affecting daily activities. Physiotherapy focused on rehabilitation to alleviate impingement signs and restore mobility. The physiotherapy entries noted ongoing moderate pain in the lower back and right side, with weakness and a burning sensation in the right shoulder. While the physiotherapy sessions led to some improvements, the progress was described as slow, necessitating continued treatment to address lingering symptoms and restore functionality
A report dated 25 July 2023 recorded the ultrasound conducted on the claimant’s right shoulder further to the clinical history of recurrent right shoulder pain and restricted external rotation. The findings indicated supraspinatus tendinopathy, which was further complicated by a partial-thickness, partial-width supraspinatus insertional tear. The tear measured 12mm wide with less than 10mm medial retraction. In addition, subacromial bursal effusion was identified, observed with “bunching” at 25 degrees of abduction.
The report further commented on the findings, highlighting the partial-thickness, partial-width supraspinatus insertional tear and subacromial bursitis. It also noted an additional finding suggestive of frozen shoulder, which may explain the claimant’s reported pain and limited range of motion.
On 25 July 2023, Dr Lam discussed the U/S findings confirming supraspinatus tendinopathy with partial-thickness tears, subacromial bursitis, and signs of adhesive capsulitis. Cortisone injection therapy was proposed to reduce inflammation and improve range of motion, alongside continued physiotherapy and follow-up imaging.
Michael Griffiths’ report, dated 17 March 2020, provided a biomechanical assessment of the claimant’s injuries following the subject motor vehicle accident. The report concentrated on the energy transfer during the collision, the claimant’s physical condition, and the causal relationship, if any, between the accident and the observed injuries.
Griffiths commenced his analysis by examining the mechanics of the collision and concluded that the energy transfer during the incident was insufficient to result in significant movement of the claimant’s body within the vehicle. He observed that the design features of the claimant’s vehicle, including the seat base and seat back support, were adequate to absorb and contain the forces experienced during the collision. Griffiths reasoned that this structural integrity would have mitigated any violent motion that might ordinarily result in injuries. Consequently, he opined that the biomechanical forces involved in the motor accident were unlikely to have caused any new injuries to the claimant.
The report then addressed the claimant’s physical conditions, particularly the findings from the post-accident MRI scans. Griffiths emphasised that the pathology described in the MRI findings was consistent with degenerative changes rather than acute trauma. He opined that these degenerative changes were pre-existing and likely represented the natural progression of wear and tear, unrelated to the accident. Griffiths further supported this conclusion by referencing imaging studies conducted in 2013, which revealed similar degenerative pathology, particularly in the claimant’s shoulder. He asserted that the injuries observed were more consistent with cumulative wear and tear over time rather than being attributable to the low-energy impact described in the accident.
In addition to the biomechanical analysis, Griffiths evaluated the claimant’s occupation as a gyprocker, which involved repetitive overhead work and heavy lifting. He reasoned that the claimant’s ongoing physical complaints, especially those related to the right shoulder, were more plausibly linked to these occupational activities rather than the motor vehicle accident.
In conclusion, Griffiths determined that the motor vehicle accident was not the primary cause of the claimant’s injuries. Instead, he attributed the observed pathology to pre-existing degenerative changes, likely exacerbated by the physical demands of the claimant’s occupation. His findings ultimately challenged the causative link between the motor accident and the claimant’s physical complaints, asserting that the injuries were pre-existing and unrelated to the low-energy collision.
RE-EXAMINATION BY THE PANEL
As has been explained above, upon reviewing the material submitted by the parties, the Panel determined it focus was properly directed to determining the causation of the right shoulder injury within the context of the threshold injury dispute. This assessment was essential to establish whether the injury met the statutory criteria for classification as a “non-threshold injury,” requiring an analysis of whether it was directly caused by the motor vehicle accident or attributable to pre-existing degenerative changes or occupational factors.
The Medical Assessor’s findings underscored the significance of this issue, identifying the right shoulder as the only injury with potential to qualify as a non-threshold injury. While the claimant’s other injuries were classified as threshold injuries, the right shoulder injury was distinguished as possibly meeting the non-threshold classification. This necessitated a detailed examination of the injury’s causation and pathology. Evidence, including imaging and clinical findings, indicated degenerative changes, such as a posterior labral tear and subacromial bursitis, which were consistent with the claimant’s work as a gyprocker involving repetitive overhead lifting. However, the claimant asserted that the motor vehicle accident was the primary cause of the shoulder condition.
The Panel’s inquiry centred on resolving this conflict to determine if the right shoulder injury fell outside the statutory definition of a threshold injury. To address this, the Panel decided to re-examine the claimant via MS Teams, an examination to take a detailed history from the claimant, conducted by Medical Assessor Kenna and Member Nolan with the assistance of an interpreter. The following is a detailed contemporaneous note taken by Member Nolan of the re-examination.
Further history taken
Medical Assessor Kenna began by gathering background information about the claimant, who is 46 years old and born in 1977. The claimant explained that he initially worked as a businessman and clerk in his home country before migrating to Australia in January 2011. After his arrival, he worked as a waiter for two years before transitioning to construction work in 2013, specialising as a gyprocker. His role involved physically demanding tasks such as fixing gyprock boards and working with metal frames, predominantly using his right hand. When asked about his employment at the time of the accident, the claimant stated he worked full-time for Brighton Construction Group on a Monday-to-Friday schedule. He recalled having been provided with benefits, union membership, and paid leave, which he associated with being a permanent employee. However, he was uncertain about the exact nature of his employment contract.
Medical Assessor Kenna inquired about the motor accident that the claimant said caused his injuries. The claimant described driving as usual when another vehicle collided with the left side of his car. The impact caused him to hit the brakes abruptly, and he felt a forward jolt restrained by his seatbelt. After the collision, the claimant moved his car to a quiet street to clear traffic and check on his children. At that point, he began noticing pain in his shoulder and lower back, describing it as feeling like being “punched” in those areas. While the claimant felt no immediate pain due to the shock of the incident, symptoms developed shortly afterward. Within a week, he reported severe pain in his right shoulder, which made it impossible to lift his arm. He confirmed that he did not work the day of or immediately after the accident.
The claimant said, however, that he attempted to return to work a few days after the accident but experienced significant difficulty performing his duties. He described sharp pain in his right shoulder that prevented him from lifting gyprock boards or using tools effectively. He tried working for a further day days but ultimately stopped, citing unbearable pain and lack of strength. Since then, the claimant has been unable to return to work as a gyprocker or find alternative employment. Despite his limitations, the claimant sought light work, such as cleaning or supervising construction materials. He believed he could perform these tasks using his left hand, which is less affected than his right. However, the claimant acknowledged some pain in his left arm and lower back, which further restricted his capacity to work.
Medical Assessor Kenna questioned the claimant about a documented ultrasound from July 2013, which indicated subacromial and subdeltoid bursitis with impingement in his right shoulder. The claimant denied any memory of this scan and stated he had no shoulder pain before the accident. He claimed he had been fully functional, working as a gyprocker without issues for years leading up to the 2019 accident. When pressed further, the claimant speculated that the ultrasound might have been conducted for a medical check unrelated to his shoulder.
The claimant described a range of symptoms stemming from the accident. For his right shoulder, he reported persistent pain, weakness, and severely restricted mobility, making it difficult to lift objects or perform overhead tasks. He noted occasional pain in his left shoulder, but less severe than the right, with manageable symptoms if he avoids high arm movements. Chronic soreness in his lower back was relieved temporarily with massage or pressure. The claimant also reported numbness in his right heel and difficulty standing for extended periods. He underwent physiotherapy for over six months post-accident, which provided some relief but did not resolve his symptoms. He also used heat packs and tried to manage his pain independently. However, he continues to experience significant functional limitations, particularly with his right shoulder.
Medical Assessor Kenna and Member Nolan sought to clarify discrepancies in the claimant’s account, particularly regarding his pre-accident shoulder condition. While the claimant denied any prior issues, the 2013 ultrasound and associated clinical records indicated pre-existing symptomatic bursitis and impingement in the right shoulder. The Panel noted the contrast between the claimant’s denial and the documented medical history, raising questions about whether his current symptoms were entirely attributable to the accident. The Panel also explored the low-energy nature of the accident. Medical Assessor Kenna noted that such an impact might be insufficient to cause the reported shoulder pathology, particularly in light of pre-existing degenerative changes identified in medical imaging.
When asked about his current condition, the claimant reported ongoing severe pain in his right shoulder, which often disrupts his sleep. He noted some improvement in his left shoulder but emphasised continued difficulties with his lower back and numbness in his right heel. Despite these limitations, the claimant expressed a desire to find work to support himself but acknowledged his restricted physical capacity.
Following the re-examination the Panel requested the issue of a direction for production to the claimant’s employer for documents which recorded the claimant’s sick leave, any worker’s compensation claims, and any records relating to workplace injuries for the period in which the claimant was employed.
In response to the direction, after considerable delay, the Panel received a letter from the claimant’s former employer Brighton Ceilings Pty Ltd, on or about 6 June 2024, in the following terms:
“To Whom It May Concern,
I hereby confirm Mr. Haiming Chen is no longer employed by Brighton Ceilings Pty Ltd.
His last day at work was Thursday, 7th November 2019 (Sick leave was taken on Friday, 8th November 2019).
Mr. Chen did not return to work after this date following a car accident.
Mr. Chen was paid annual leave following the accident. His final pay was on 15th January 2020.
If you have any further queries, please contact the undersigned.”
The parties were provided with an opportunity to make submission on the further material. None was received.
PANEL’S CONCLUSIONS
The Panel undertook a detailed review of the material submitted by the parties, including the claimant’s pre- and post-accident medical history, imaging findings, and reports from treating practitioners and independent experts. The central issue was whether the claimant’s right shoulder injury satisfied the statutory criteria for classification as a “non-threshold injury” under the Act and whether the treatment provided, specifically an ultrasound-guided cortisone injection, was reasonable and necessary. This inquiry required careful consideration of causation, the nature of the injury, and its relationship to the motor vehicle accident.
The claimant’s medical history revealed a documented pre-existing condition in the right shoulder. A 3 July 2013 U/S confirmed subacromial and subdeltoid bursitis with impingement but showed no evidence of tendinopathy or structural tears. Despite this documented history, the claimant denied any significant prior issues with his shoulder, asserting that his symptoms arose solely from the motor vehicle accident. While no shoulder pain was reported in the six years preceding the collision with the exception of the records at or about the time of the U/S, the Panel considered the claimant’s occupational history as a gyprocker, which involved repetitive overhead lifting and physically demanding work was consistent with the degenerative changes observed in post-accident imaging and played a critical role in the Panel’s analysis of causation.
The MRI of the claimant’s right shoulder, conducted on 24 December 2019, provided further insight into the injury. It revealed posterior labral tearing, low-grade cuff insertional tendinopathy, and degenerative osteoarthrosis of the acromioclavicular joint. Importantly, the imaging did not identify a rotator cuff tear. These findings were consistent with degenerative changes rather than acute trauma from the accident. The Panel also noted that while the Medical Assessor observed a marked reduction in the claimant’s range of motion in the right shoulder, there was no indication that maximal effort was requested during the examination. Moreover, the absence of muscle wasting or neurological deficits further raised doubts about whether the claimant’s reduced functionality could be solely attributed to the motor vehicle accident.
The Panel noted that MRI findings are inherently superior to ultrasound findings in assessing shoulder pathology, particularly in detecting structural abnormalities such as labral tears, rotator cuff injuries, and detailed degenerative changes. Unlike ultrasound, which is limited in its ability to visualise deeper structures and is operator-dependent, MRI provides a comprehensive and objective view of the shoulder’s anatomy. The MRI performed on 24 December 2019 revealed posterior labral tearing, low-grade cuff insertional tendinopathy, and degenerative changes in the acromioclavicular joint – findings that were not discernible in the 2013 U/S. While the U/S identified subacromial and subdeltoid bursitis with impingement, it lacked the resolution and depth necessary to identify more subtle degenerative changes or labral pathology, underscoring the importance of the MRI in forming an accurate and detailed understanding of the claimant’s condition.
The U/S report dated 25 July 2023 highlights supraspinatus tendinopathy accompanied by a partial-thickness, partial-width supraspinatus insertional tear measuring 12mm wide with less than 10mm medial retraction, as well as subacromial bursal effusion with “bunching” at 25 degrees of abduction. These findings strongly indicate that the claimant’s right shoulder pathology is primarily degenerative in origin rather than a result of acute trauma caused by the motor accident.
The partial-thickness tear and tendinopathy are hallmark features of cumulative degenerative changes often observed in individuals exposed to repetitive overhead motion and physical stress over time, such as those seen in the claimant’s work as a gyprocker. This occupational history provides a compelling explanation for the shoulder condition. Furthermore, the absence of significant medial retraction or displacement in the tear indicates that the structural integrity of the supraspinatus tendon remains largely preserved, which is inconsistent with the kind of severe structural damage typically associated with acute trauma from high-impact accidents.
The subacromial bursal effusion and tendinopathy, also identified in this ultrasound, further underscore the degenerative aetiology of the claimant’s shoulder condition. These are chronic inflammatory and wear-and-tear findings that align with repetitive occupational use rather than acute injury. The absence of objective evidence linking these findings to the motor accident further weakens the claimant’s assertion of causation.
Moreover, the limitations of earlier imaging modalities, such as the 2013 U/S, are significant in understanding the progression of the claimant’s condition. While the 2013 U/S revealed subacromial and subdeltoid bursitis with impingement, it lacked the resolution and sensitivity to detect subtle or developing structural abnormalities, such as the partial-thickness tear later identified in the 2023 U/S. It is, therefore, plausible that some elements of the claimant’s current pathology, including the tear, may have been present but undetected during earlier imaging. This inference strengthens the argument that the pathology was longstanding and degenerative, predating the accident, rather than being caused by the motor accident.
In summary, the imaging findings are entirely consistent with degenerative shoulder pathology rather than acute trauma. These findings evidence that the claimant’s condition reflects the cumulative impact of occupational activities rather than any material contribution from the motor vehicle accident. This analysis supports the Panel’s conclusion that the right shoulder condition is not causally linked to the accident and supports the view that the treatment provided, including the ultrasound-guided cortisone injection, was necessitated by degenerative conditions rather than trauma from the collision.
The Panel also reviewed the biomechanical analysis provided by Griffiths, who emphasised the low-energy nature of the collision. Griffiths concluded that the forces generated during the accident were insufficient to cause the observed pathology in the claimant’s right shoulder. He attributed the findings to pre-existing degenerative conditions and occupational stress rather than the accident. While the claimant’s representatives argued that Griffiths’ conclusions exceeded his expertise as a biomechanical engineer, the Panel found his analysis persuasive in contextualising the degenerative origin of the shoulder pathology. Griffiths’ conclusions aligned with the claimant’s imaging findings and occupational history, reinforcing the Panel’s determination that the injury was not causally related to the accident. His analysis provided a clear and scientifically supported explanation of how the forces generated during the accident were inconsistent with the specific pathology observed, making his contribution relevant to the causation inquiry.
Griffith’s expertise as a biomechanical engineer provides valuable insights into the mechanics of the collision and the forces involved, which can contribute to understanding whether the accident could theoretically cause the injuries claimed by the claimant. His analysis of energy transfer, vehicle movement, and structural integrity offers a scientific framework to evaluate whether the physical forces experienced during the motor vehicle accident were sufficient to result in injury. This perspective is particularly relevant when determining the plausibility of injury causation in low-impact collisions, as it provides an objective measure of the forces at play, complementing medical evidence.
However, the Panel acknowledges that Griffith’s opinions must be viewed within the limitations of his expertise. While he is qualified to assess the mechanics of the accident and whether the forces involved were capable of causing injury in a general sense, he lacks the medical training to evaluate the physiological impact of those forces on an individual claimant. Determining whether specific injuries, such as a rotator cuff tear or labral pathology, are attributable to the motor accident requires medical expertise in anatomy, pathology, and clinical diagnosis, which falls outside Griffith’s professional qualifications. His conclusions about degenerative conditions or pre-existing injuries are therefore speculative or incomplete without corroboration from qualified medical practitioners.
Moreover, causation in the context of personal injury requires not only a biomechanical evaluation but also a medical determination of whether the accident materially contributed to the injury. It is to be recognised that while biomechanical evidence can provide a helpful context, it should not be treated as determinative where it conflicts with clinical findings or fails to account for individual variations in physiology, medical history, and symptomatology. Griffith’s opinions, while relevant, cannot substitute for the comprehensive analysis required to assess causation, particularly where imaging and medical assessments suggest alternative explanations for the claimant’s condition.
Accordingly, Griffith’s input can and should be considered as part of the overall evidence in this matter. His analysis assists in framing the extent to which the forces involved in the accident were capable of causing injury and contextualising the claimant’s imaging findings and occupational history. However, his opinions were not determinative and were weighed against medical evidence, clinical findings, and the claimant’s history to assist the Panel in arriving at a balanced and informed conclusion regarding causation.
Based on the evidence, the Panel determined that the right shoulder injury was not caused by the accident and therefore was not apt to be considered a threshold or non-threshold injury for the purposes of Schedule 2, cl 2(e) of the Act. The pathology was degenerative in nature, reflecting the cumulative effects of occupational activities and pre-existing conditions, not a condition to which the motor accident materially contributed. While the claimant reported ongoing pain and limited functionality, these symptoms were consistent with his documented pre-accident history and work-related stressors. The absence of a rotator cuff tear and the imaging findings indicative of degenerative changes further supported this conclusion.
In addition, the Panel considered the letter from Brighton Ceilings Pty Ltd which stated that the claimant’s last day of work was Thursday, 7 November 2019, with sick leave taken the following day, and that he did not return to work thereafter. This directly conflicts with the claimant’s account given to the Panel upon re-examination that he attempted to return to work after the accident and worked for a further day before stopping due to severe pain and lack of strength. This inconsistency raised doubts about the claimant’s credibility, as his description of attempting to return to work and subsequently being unable to continue is not supported by the employer’s records.
The Panel also considered the claimant’s denial of prior right shoulder issues against the documented findings from the 2013 ultrasound, which identified subacromial and subdeltoid bursitis with impingement. The claimant’s assertion that his symptoms arose exclusively from the motor accident is inconsistent with this prior history. These discrepancies undermine the reliability of the claimant’s account and casts doubt on the accuracy of the history given in respect of his right shoulder condition. The unreliability of the claimant’s account reinforced the Panel’s conclusion that the shoulder pathology and symptomology predated the motor accident.
Although the ultrasound-guided cortisone injection provided for the right shoulder was reasonable and necessary for managing symptoms associated with degenerative conditions, the Panel concluded that it was not causally related to the motor vehicle accident. The injection served to alleviate pain and inflammation resulting from degenerative changes, as evidenced by the MRI findings and the claimant’s occupational background, rather than addressing trauma caused by the collision.
Consequently, while beneficial for symptom management, the treatment provided for the right shoulder could not be considered reasonable and necessary in connection with the accident.
Further consideration of the right should injury – a threshold injury
Despite its findings on causation, the Panel has considered the labral tear identified in in the 2019 MRI and whether it classifies as a threshold injury or not. Under the Act, injuries involving a “complete or partial rupture of tendons, ligaments, menisci, or cartilage” are excluded from the definition of soft tissue injuries. This exclusion targets injuries with significant structural disruption and functional compromise. In this case, the labral tearing identified in the MRI does not meet the statutory definition of a rupture.
The labral tear is described as non-displaced, meaning the torn segments remain aligned and intact, with no significant disruption to the labrum’s structural integrity. A rupture, as contemplated by the Act, implies a complete or partial severance of a structure with notable displacement or loss of function, which is not evident here. Instead, the labral tearing represents a milder degree of injury that does not exhibit the structural or functional instability associated with a rupture.
Furthermore, the absence of displacement in the labral tear preserves the stability and overall functionality of the shoulder joint. While the tear may cause symptoms such as pain or restricted motion, it does not result in the significant impairment typically associated with ruptures. This aligns with the characteristics of a soft tissue injury under the statutory framework, which encompasses injuries that do not rise to the level of substantial structural musculoskeletal damage.
In conclusion, the labral tearing described in the MRI does not constitute a “rupture” under the Act. The non-displaced nature of the tear and its limited structural and functional impact confirm its classification as a soft tissue injury, consistent with the definition of a threshold injury.
Member Nolan
Medical Assessor Kenna
Medical Assessor Gibson
Personal Injury Commission
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