CWN v Allianz Australia Insurance Limited
[2025] NSWPICMP 592
•11 August 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | CWN v Allianz Australia Insurance Limited [2025] NSWPICMP 592 |
CLAIMANT: | CWN |
INSURER: | Allianz Australia Insurance Limited |
REVIEW PANEL | |
MEMBER: | Maurice Castagnet |
MEDICAL ASSESSOR: | Shane Moloney |
MEDICAL ASSESSOR: | David Gorman |
DATE OF DECISION: | 11 August 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant’s review of Medical Assessment Certificate (MAC) under section 7.26; dispute about whether the injuries caused by the accident were threshold injuries; whether the motor accident caused a supraspinatus tear and/or a labrum tear in the right shoulder; re-examination by the Review Panel; Held – MAC revoked; injury to right shoulder caused by the motor accident is not a threshold injury. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The issue determined by the Review Panel is whether the injuries caused by the motor accident are threshold injuries. Determination 1. The Review Panel revokes the certificate of Medical Assessor Adam Rapaport dated 2. The Review Panel issues a new certificate determining: (a) that the following injury caused by the motor accident is a threshold injury for the purposes of the Act: (i) cervical spine - soft tissue injury, and (b) that the following injury caused by the motor accident is a not a threshold injury for the purposes of the Act: (i) right shoulder injury- supraspinatus tear and/or labral tear, partially healed. A statement of the Review Panel’s reasons for the determination is attached to this certificate. |
STATEMENT OF REASONS
INTRODUCTION
On 19 December 2021, the claimant was involved in a motor accident when her stationary vehicle was hit from behind by a vehicle insured by Allianz (the 2021 accident).
As a result of the accident, the claimant claimed that she sustained injuries to her cervical spine and right shoulder. She also claimed that she developed a psychological injury although that injury is not the subject matter of this dispute.
The insurer accepted liability to pay the claimant statutory benefits arising from her injuries, under the Motor Accident Injuries Act 2017 (the MAI Act), for the first 26 weeks. Statutory benefits by way of loss of earnings and treatment and care expenses, cease after 26 weeks if “the person’s only injuries resulting from the motor accident were threshold injuries”.[1] An injured person cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were threshold injuries”.[2]
[1] Sections 3.11 and 3.28 of the MAI Act. For motor accidents occurring on or after 1 April 2023, the period of 26 weeks has been amended to 52 weeks.
[2] Section 4.4 of the MAI Act.
Following an internal review of its original decision conducted on 28 September 2022, the insurer maintained that the claimant’s physical injuries caused by the accident, were threshold injuries for the purposes of s 1.6 of the MAI Act.
To resolve the dispute, the claimant made an application for a medical assessment of the matter by the Personal Injury Commission (Commission) pursuant to Division 7.5 of the MAI Act.
According to Schedule 2, cl 2 of the MAI Act, the issue of whether an injury caused by the motor accident is a threshold injury for the purposes of the Act is declared to be a medical assessment matter.
A medical assessment matter is determined in accordance with Division 7.5. This means that the matter is determined at first instance by a Medical Assessor [3] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[3] Section 7.20 of the MAI Act.
THE MEDICAL ASSESSMENT UNDER REVIEW
The dispute was referred at first instance to Medical Assessor Adam Rapaport for assessment.
The following injuries were referred to the Medical Assessor for assessment:
· cervical spine – brachial plexus injury, and
· right shoulder tear or other rotator cuff injury.
Medical Assessor Rapaport issued a certificate dated 15 April 2023. The Medical Assessor found that the following injuries caused by the accident were threshold injuries:
· aggravation of ongoing pre-existing whiplash injury from prior motor accident trauma and aggravation of multi-level spondylotic degenerative pathology to the cervical spine, and
· aggravation of pre-existing left shoulder [4] dysfunction through referral from a pre-existing cervical whiplash injury.
[4] Emphasis added.
The Medical Assessor found that the cervical spine injury was a threshold injury because it was a soft tissue aggravation of a whiplash injury to the cervical spine caused by a prior motor accident (the 2019 accident)[5] and did not involve structural cervical spine elements nor was it associated with radiculopathy.
[5] On 24 June 2019.
The Medical Assessor found that the motor accident did not cause “a rotator cuff tear to the shoulder region” or a braxial plexus injury because the MRI of the right shoulder confirmed that all rotator cuff tendons were intact and had not been torn and the MRI examination of the brachial plexus regions was normal.
Although the Medical Assessor did not specify in his conclusion whether he was referring to a right shoulder or a left shoulder rotator cuff tear, the Panel notes that the only shoulder injury referred to the Medical Assessor for assessment was the right shoulder.
THE REVIEW APPLICATION
On 15 May 2023, pursuant to s 7.26 of the MAI Act, the claimant made an application to the President of the Commission to refer the medical assessment matter to a review panel for review. The application was accepted as being made within the time prescribed by s 7.26(10) of the MAI Act.
The President referred the application to a review panel for review, being satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect, having regard to the particulars set out in the application.
CONDUCT OF THE REVIEW
According to s 7.26(5A) of the MAI Act, the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission. On this occasion, the Panel is constituted by Medical Assessor Moloney, Medical Assessor Gorman and Member Castagnet (the Panel).
Part 5 of the Personal Injury Commission Act2020 (PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[6]
[6] Section 41(2) of the PIC Act.
Pursuant to Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules), the Panel determines how it conducts and determines the proceedings. The Panel may determine the proceedings solely based on the written application.[7]
[7] Rule 128 of the PIC Rules.
The review is not limited to only that aspect of the assessment that is alleged to be incorrect and is by way of a new assessment of all the matters with which the medical assessment is concerned.[8]
RELEVANT STATUTORY PROVISIONS, GUIDELINES AND LEGAL PRINCIPLES
[8] Section 7.26(6) of the MAI Act.
The MAI Act
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury”. Section 1.6(2) of the Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder.
The Motor Accident Guidelines
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the Act. Version 9.3[9] of the Guidelines, relevantly provides:
[9] Version 9.3 commenced on 6 December 2024.
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a psychological or psychiatric injury caused by the motor accident.
5.4 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a threshold injury. An injury resulting in radiculopathy will not be classified as a threshold injury.
Clause 5.7 of the Guidelines provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
Radiculopathy is defined in cl 5.8 of the Guidelines as follows:
“Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a)loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b)positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c)muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d)muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution.
(e)reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
Neurological symptoms that do not meet the assessment criteria for radiculopathy means that the injury will be assessed as a threshold injury.[10]
[10] Clause 5.9 of the Guidelines.
Causation of injury
Sections 5D and 5E of the Civil Liability Act2002 apply to the MAI Act.[11]
[11] See s 3B(2) of the Civil Liability Act 2002.
In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13, Campbell J made the following observations at [65]:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
Clauses 6.5 to 6.7 of the Guidelines also address the issues of causation of injury and whether the degree of permanent impairment is caused by injury. These provisions are equally of relevance to the issue of causation of threshold injury.
The following observations were made by Wright J in Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372 at [35]:
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of Injury
6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.
This, therefore, involves a medical decision and a non-medical informed judgment.
6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
MATERIAL BEFORE THE PANEL
The Panel considered the following materials:
(a) the claimant’s bundle (111 pages);
(b) the insurer’s bundle (238 pages);
(c) the claimant’s submissions filed on 10 October 2023 and the insurer’s submissions filed on 11 October 2023 in response to the Panel’s directions;
(d) the insurer’s first bundle of additional documents filed on 11 October 2023 (AD 1);
(e) the claimant’s first bundle of additional documents filed on 26 April 2024 (AD 2);
(f) The insurer’s second bundle of additional documents filed on 9 July 2024 (AD 3);
(g) The claimant’s second bundle of additional documents filed on
16 December 2024 (AD 4);(h) the claimant’s third bundle of additional documents filed on 16 January 2025 (AD 5);
(i) the insurer’s third bundle of additional documents filed on 10 February 2025 (AD 6);
(j) the insurer’s fourth bundle of additional documents filed on 10 April 2025 (AD 7), and
(k) the medical assessment certificate of Medical Assessor Adam Rapaport dated
15 April 2023 (which was not included in either party’s bundles).
The Panel considered all of the above materials.
SUBMISSIONS
The claimant submitted that in concluding that the referred injuries were threshold injuries, it is apparent that the Medical Assessor did not properly consider the ultrasound dated
25 August 2022, which showed a partial articular supraspinatus tendon avulsion (PASTA lesion) and a partial thickness tear of rotator cuff tendons. This would represent a non-threshold injury.The insurer submitted that it was apparent from his reasons that the Medical Assessor considered the ultrasound because he referred to it on multiple occasions in the reasons. The insurer submitted that in any event, the MRI of the right shoulder performed on
12 September 2022, confirmed that all rotator cuff tendons were intact and had not been torn.
THE EVIDENCE BEFORE THE PANEL
The parties were aware that apart from determining this review application, the Panel was also concurrently determining the review application of a single Medical Assessor in matter R-M202485/24 (the related matter) about whether the degree of permanent impairment of the claimant as a result of injuries caused by a motor accident on 24 June 2019 (the 2019 accident), is greater than 10%.
The parties were also made aware that the Panel would consider in this matter, evidence submitted by the parties in the related matter so far as such evidence was relevant to the determination of this matter. The parties consented to the Panel proceeding with the determination of this matter on that basis.
The evidence that was relevant to the Panel’s task in this matter may be summarised as follows.
Pre-accident injuries
2004 motor accident
The claimant was involved in a motor accident in 2004 when her vehicle was hit from behind by a semi-trailer. In a signed statement dated 6 January 2021, the claimant said:
“I remember injuring my neck and back. I remember seeing a solicitor at Keddies Lawyers. I cannot remember how this claim settled. I may have got money, but I assume it wasn't much given that I can't remember many of the details about this claim.”[12]
[12] Page 197 of the insurer’s bundle.
2014 motor accident
The claimant was involved in a motor accident on 11 February 2014 in which she sustained injury. In her signed statement dated 6 January 2021, the claimant said:
“The injuries included injury to my neck and lower back. I did pursue a claim for this accident which settled, but I made a very good recovery from this accident.[13]
[13] Page 197 of the insurer’s bundle.
2019 motor accident
The claimant was involved in the 2019 accident on 24 June 2019 when the vehicle she was driving was hit in the rear driver’s side by a vehicle that made a right hand turn into the path of her vehicle.
The claimant was admitted to Campbelltown Hospital for treatment on the day of the accident. She reported mid back pain and left chest wall pain. After a chest X-ray, she was diagnosed with a soft tissue injury and discharged.[14]
[14] Page 93 of the insurer’s bundle.
On 25 June 2019, the claimant consulted her general practitioner (GP), Dr Hillver Ng of Macarthur Square Medical Centre. She presented with complaints of mid back pain and left chest pain. On examination, there was slight paravertebral tenderness in the mid back. Monitoring signs for a head injury was discussed.[15]
[15] Page 59 of the insurer’s bundle.
On 27 June 2019, the claimant consulted Dr Ng complaining of neck ache, headache and hearing issues with the right ear.[16]
[16] Page 58 of the insurer’s bundle.
On 5 July 2019, the claimant consulted Dr Ng reporting neckache, headache and back spasm with driving.[17]
[17] Page 57 of the insurer’s bundle.
On 9 August 2019, the claimant consulted Dr Ng reporting difficulty sleeping, hypervigilance, headaches, migraines, neck pain, back pain and numbness in her right arm and leg. A right leg limp was observed.[18]
[18] Pages 57 of the insurer’s bundle.
On 23 August 2019, consulted Dr Ng reporting migraines and dizziness, lower back pain with pins and needles and “electrical sensation/ spasm”.[19]
[19] Pages 55-56 of the insurer’s bundle.
On 9 September 2019, the claimant consulted Dr Ng, complaining of ongoing migraines.[20]
[20] Page 55 of the insurer’s bundle.
On 25 October 2019, the claimant consulted Dr Ng, complaining of light-headedness, nausea, numbness in the arms and legs and pins and needles in her legs.[21]
[21] Page 53 of the insurer’s bundle.
On 20 April 2020, the claimant was seen by neurologist, Dr Abdul Mamun. Dr Mamun noted that the claimant was involved in a motor accident in June 2019 which resulted in significant headache, neck pain, back pain, whiplash injury, reduced hearing on the right side, dizziness and balance issues. The reported paraesthesia of her arms and legs, mostly to the right side of her upper and lower limbs.[22] Dr Mamun was of the opinion that the claimant’s symptoms were consistent with post-concussion syndrome. She was to have an MRI of the cervical spine to rule out radiculopathy and myelopathy.[23]
[22] Page 90 of the insurer’s bundle.
[23] Page 90 of the insurer’s bundle.
An MRI of the cervical spine was performed on 11 May 2020 which reported no cervical spine abnormality. The central canal and foraminal dimensions were found to be adequate at all levels with no neural contact.[24]
[24] Page 89 of the insurer’s bundle.
On 27 August 2020, the claimant consulted Dr Ng, reporting pain back on the right side, loin, the right upper quadrant (RUQ) and spasms.[25]
[25] Page 43 of the insurer’s bundle.
On 21 October 2020, the claimant consulted Dr Ng, complaining of neck symptoms and headaches. Dr Ng recorded that the headaches were likely due to the neck issues.[26]
[26] Page 40 of the insurer’s bundle.
The claimant was assessed by rehabilitation specialist, Dr Mohammed Assem on 26 October 2020 at the request of her lawyers. Dr Assem was of the opinion that the 2019 accident caused soft tissue injuries to the neck and upper back and that there was a closed head injury.[27]
[27] Page 191 of the insurer’s bundle.
On 25 January 2021, a nerve conduction study of the upper limbs was conducted by neurologist, Dr Ho Choong at Campbelltown Hospital and the results were within normal limits.[28]
[28] Page 86 of the insurer’s bundle.
In a consultation with Dr Mamun on 8 July 2021, the claimant reported worsening of her right upper limb pain around the shoulder and elbow with numbness. She found it difficult to lift heavy objects with her right upper limb. Dr Mamun recommended a further increase in her intake of Endep. An ultrasound of the right shoulder and elbow was requested.[29]
[29] Page 78 of the insurer’s bundle.
In a consultation on 9 July 2021 with Dr Ng, the claimant reported that she was advised by Dr Mamun that the nerve conduction study with Dr Mamun was “ok”. [30]
[30] Page 33 of the insurer’s bundle.
An ultrasound of the right elbow performed on 13 August 2021, showed the ulnar nerve to be of normal appearance.[31]
[31] Page 76 of the insurer’s bundle.
An ultrasound of the right shoulder performed on the same day. The long head of the biceps tendon was intact and lying in a normal anatomic location. The subscapularis tendon showed a normal echotexture with no tendinosis or tear. The supraspinatus tendon showed mild supraspinatus insertional tendinosis, without a tear with overlying subacromial/subdeltoid bursitis. The infraspinatus tendon showed a normal echotexture with no tendinosis or tear. [32]
[32] Page 76 of the insurer’s bundle.
In a consultation with Dr Mamun on 14 October 2021, the claimant reported that her headaches were not as severe, but she still had ongoing paraesthesia. Dr Mamun said that he did not have a clear explanation for the paraesthesia in the ulnar nerve distribution.[33]
[33] Page 77 of the insurer’s bundle.
The claimant was assessed by occupational physician, Dr Margaret Gibson at the request of the insurer, GIO, for the injuries sustained in the 2019 accident. This assessment took place after the subject accident, on 8 September 2023.
In a report of the same date, Dr Gibson noted that the claimant reported that in the motor accident in 2004, she injured her neck and upper back and that she had recovered from those injuries. The claimant reported that in a motor accident in 2014, she injured her neck and lower back. The claimant told Dr Gibson that the neck symptoms had settled down but up to the time of the 2019 accident, she had intermittent low back symptoms including stiffness and niggling pain, particularly if she performed repetitive activities.[34]
[34] Page 720 of the insurer’s bundle in matter R-M 202485/24.
The claimant reported to Dr Gibson that in the 2019 accident, she suffered injuries to her neck and upper back, post-concussion syndrome and possibly occipital neuralgia.[35]
[35] Page 722 of the insurer’s bundle in matter R-M 202485/24.
The claimant reported to Dr Gibson that she was involved in the subsequent motor accident in 2021 (the subject accident) when she injured her right shoulder and neck. She told
Dr Gibson that the neck pain extended into the right arm and to the thumb and index finger and there was right arm weakness.[36] The claimant clarified that the 2019 accident had caused pain extending from the axilla to the elbow and the two lateral fingers of the right hand.[37][36] Page 722 of the insurer’s bundle in matter R-M 202485/24.
[37] Page 722 of the insurer’s bundle in matter R-M 202485/24.
Dr Gibson was of the opinion that the 2019 accident caused soft tissue injuries to the neck, chest and upper back. She believed there was possibly a temporary increase in lower back symptoms but not a new lower back injury.[38] Dr Gibson was of the opinion that there was a right shoulder injury involving structural impingement with tendinosis and bursitis which was unrelated to the 2019 accident.[39]
[38] Page 727 of the insurer’s bundle in matter R-M 202485/24.
[39] Page 728 of the insurer’s bundle in matter R-M 202485/24.
Dr Gibson noted a subsequent ankle injury in June 2020. Dr Gibson believed that none of the injuries sustained in the 2019 accident could plausibly have led to right leg weakness or giving way. She therefore concluded that the right ankle injury was unrelated to that accident.[40]
The subject motor accident on 19 December 2021- claimant’s statement
[40] Page 727 of the insurer’s bundle in matter R-M 202485/24.
In her application for personal injury benefits (claim form) dated 14 January 2022, the claimant described her injuries in the following terms:
“Right side arm and leg weakness - as advised by paramedics.
Pins and needles on the right (Neck, shoulder, arm and leg) and left side (arm and leg) of my body
Intense pain and difficulty rotating my neck on the right side
Spasming in my neck on both sides”[41]
[41] Page 79 of the claimant’s bundle in matter R-M 202485/24.
Post-accident medical evidence
The report of the NSW Ambulance Service dated 19 December 2021, recorded that the claimant was able to self-extricate from the vehicle but “felt very shaken and tingly all over.” The claimant reported that the numbness/tingling had mostly resolved but remained in the right arm and thumb, pointer and middle finger and the right heel.[42]
[42] Page 98 of the insurer’s bundle.
The claimant consulted Dr Ng on the day of the accident reporting that she waited “more than 6-7 hrs” for treatment at Campbelltown Hospital emergency department and could not wait any longer.[43] She reported right-sided lower neck pain, weakness of the right upper limb and the right lower limb, and headache on the right side of her head. On examination, it was recorded that there was tenderness on the right side of C6/7 paraspinal area and the upper medial aspect of the right shoulder.[44]
[43] Page 28 of the insurer’s bundle.
[44] Page 28 of the insurer’s bundle.
A CT scan of the brain performed on 20 December 2021 showed no abnormality.[45] A CT scan of the cervical spine performed on 21 December 2021 showed no evidence of acute injury or significant canal or foraminal narrowing.[46]
[45] Page 27 of the insurer’s bundle.
[46] Page 73 of the claimant’s bundle.
On 21 December 2021 the claimant consulted Dr Ng for review of the CT results. She reported ongoing right sided weakness and pain.[47]
[47] Page 28 of the insurer’s bundle.
An MRI of the cervical spine performed on 23 December 2021 showed early spondylotic changes at multiple levels without significant canal or foraminal stenosis.[48]
[48] Page 94 of the claimant’s bundle.
In a consultation with Dr Ng on 13 January 2022, the claimant reported lower neck pain, weakness in the upper and lower right limbs.[49] In a certificate of fitness issued on
13 January 2022, Dr Ng diagnosed neck pain, right upper limb and lower limb weakness and headache.[50][49] Page 27 of the insurer’s bundle.
[50] Page 83 of the claimant’s bundle.
In a telephone consultation on 20 January 2022 with Dr Mamun, the claimant reported that after the 2019 accident, she experienced pins and needles in her arms and legs and could not move her neck. The claimant reported that since the 2019 accident, her pre-existing symptoms have worsened, and she has developed new symptoms. She was experiencing more neck pain and had weakness in the right arm. Dr Mamun said that it was hard to comment more on the weakness on the right side given that the MRI of the cervical spine of 23 December 2021 did not show any significant finding on the right side to explain her symptoms.[51]
[51] Page 609 of the claimant’s bundle in matter R-M 202485/24.
On 24 January 2022, the claimant was seen in person by Dr Mamun. On this occasion the claimant reported “like a line coming from this right side of the right neck going through the elbow and involving the right lateral three fingers numbness since the [2019] accident”.[52] The claimant reported weakness in the whole right upper limb affecting her function. She cannot open a jar and cannot hold onto objects due to weakness.
[52] Page 71 of the insurer’s bundle.
In regard to his examination, Dr Mamun said the following:
“On upper limb examination, she has normal tone bilaterally. On examination of power, she has inconsistent finding of right sided upper limb. When checked synchronously with left upper limb, she has normal strength in right upper limb but she (sic) checked individually on the right side, she has giveaway weakness of the right upper limb abduction, adduction of shoulder and flexion extension of her elbow.”[53]
[53] Page 72 of the insurer’s bundle.
Dr Mamun was of the opinion that overall, her right-sided weakness could be due to recent whiplash injury though there is some inconsistency noted and there is some suggestion of functional overlay.[54]
[54] Page 72 of the insurer’s bundle.
On 11 May 2022, Dr Mamun reported a normal upper limb nerve conduction study.[55]
[55] Page 93 of the claimant’s bundle.
On 22 June 2022 the claimant consulted neurologist, Dr Stan Levy. Dr Levy took a history of both the 2019 accident and the subject accident. She reported that she was feeling an ‘electrical line’ extending from the right side of her neck down her right arm and into her fingers. She also reported random ‘electrical buzzing sensations’ in her arms. On examination, there were no neurological abnormalities. Dr Levy believed that the claimant’s symptoms may be suggestive of a spinal cord neurapraxic injury and the ongoing symptoms in the right upper limb were possibly the result of the initial spinal cord injury. Dr Levy recommended further radiological studies and nerve conduction studies.[56]
[56] Pages 182-183 of the insurer’s bundle.
An MRI of the right brachial plexus performed on 13 July 2022 revealed a normal appearance.[57]
[57] Page 25 of the insurer’s bundle.
On 21 July 2022, the claimant consulted neurologist, Dr Stan Levy. He noted the MRI scan of the right brachial plexus was reported to be normal and the MRI scan of the cervical spine also appeared to be normal. He therefore concluded that there was no evidence of cervical myelopathy or brachial plexopathy identified to account for the claimant’s ongoing symptoms. In the circumstances, he formed the view that the claimant’s symptoms could be related to the right shoulder itself and recommended a referral to an orthopaedic surgeon.[58]
[58] Page 96 of the claimant’s bundle.
On 25 August 2022, the claimant consulted orthopaedic surgeon, Associate Professor Mark Haber. Associate Professor Haber recorded the symptoms of rotator cuff pain, reduced range of motion, weakness, stiffness and numbness.[59]
[59] Page 97 of the claimant’s bundle.
An ultrasound of the right shoulder performed on the same day at Associate Professor Haber’s rooms found as follows:
“The ultrasound demonstrated mild thickening of the subacromial bursa. There was evidence of a partial thickness tear of rotator cuff tendons. The supraspinatus tendon demonstrates an articular surface partial thickness tear which measures 5 mm by 6 mm.”[60]
[60] Page 47 of the claimant’s bundle.
On 12 September 2022, an MRI of the right shoulder was performed. The conclusion was that there were low grade supraspinatus and infraspinatus tendinosis without a tear, subacromial bursitis and bony impingement anatomy.[61]
[61] Page 99 of the claimant’s bundle.
The Panel notes that on 13 October 2022, Dr Ng referred the claimant to vascular surgeon, Associate Professor Jim Iliopoulos for review of recurrent numbness and pain from the right side of the neck radiating to the arms and fingers.[62] However, there is no report from Associate Professor Iliopoulos in evidence before the Panel.
[62] Page 100 of the claimant’s bundle.
The Panel notes that on 15 December 2022, Associate Professor Haber referred the claimant to interventional pain physician and consultant neurosurgeon, Dr Michael Davies for an assessment of the right shoulder girdle. At that stage, Associate Professor Haber felt that “the ongoing pain may be referred pain from more proximally.”[63] There is no report from
Dr Davies in evidence before the Panel.[63] Page 238 of the insurer’s bundle.
In October 2023 the claimant was referred by Dr Ng to orthopaedic surgeon, Dr Jaykar Dave for further management. In a report dated 5 February 2024, Dr Dave referred to the 2021 accident and recorded that the claimant described being hit from behind and pushed forward into traffic and having to swerve her car aggressively to the side to avoid being hit for a second time. The claimant reported that at the time of the collision, she was twisted to her right to look over her right shoulder, giving way to traffic on the main road coming from her right and at the point of impact, her body was in a somewhat unusual position.[64]
[64] AD 5.
Dr Dave noted that the claimant had been seen previously by a different shoulder specialist who performed an ultrasound scan in their rooms. As a result, it was suspected that there was a partial thickness tear of the supraspinatus and treatment with steroid injections and physiotherapy followed.[65]
[65] AD 5.
Dr Dave was of the opinion that the MRI scan of 12 September 2022 demonstrates acromioclavicular joint arthritis and a high-grade supraspinatus tendonitis with perhaps a partial or full-thickness tear of the tendon. He recommended a repeat MRI scan to quantify any progression of this tear. [66]
[66] AD 5.
On 25 March 2024, a repeat MRI scan was performed by Dr Niranjan Ganeshan. The conclusion was as follows:
“1. Mild subacromial/subdeltoid bursal inflammation.
2. Minimal supra and infraspinatus tendinosis but no cuff tear.
3. Slightly globular appearance to the anterior labrum at 3 o’clock ? Previous labral tear which is partially healed/scar down and there is a tiny para labral cyst.
4. No features of adhesive capsulitis. When compared to the previous study, the supra and infraspinatus tendinosis is similar to the previous study as is the minor bursal inflammation. The labral changes are more conspicuous on the current study.”[67]
[67] AD 2.
Dr Ganeshan questioned whether the slightly globular appearance of the anterior labrum at the 3 o’clock position with an adjacent tiny cystic focus was a reflection of a previous labral tear which has partially healed/scarred down with a tiny para labral cyst. He noted that this was more visible on this MRI than on the previous MRI (performed on 12 September 2022).[68]
[68] AD 2.
The claimant was referred by Dr Ng to neurosurgeon and spine surgeon, Dr Peter Khong for an opinion regarding her ongoing neck pain, right arm pain, lower back pain and right leg pain. In a report dated 23 September 2024, Dr Khong noted the circumstances of the 2019 accident and the 2021 accident.[69]
[69] AD 4.
The claimant reported to Dr Khong that following the 2019 accident, she had neck pain, right arm numbness and electric shocks, right sided headaches, a sensation of spiders crawling over her face, right sided rib pain, lower back pain and right leg pain and weakness.[70] The claimant reported to Dr Khong that the 2021 accident worsened her neck pain and brought new numbness in both arms and legs as well as right shoulder pain. [71]
[70] AD 4.
[71] AD 4.
Following his examination, Dr Khong made the following conclusion:
“Her right arm numbness follows an ulnar distribution, though this should not originate from the axilla. The pain down the lateral arm to the thumb and index finger suggest C6. Her MRI cervical spine does not demonstrate any neural compression. Her MRI brachial plexus was normal. I have referred her for NCS/EMG ? ulnar neuropathy. She complains of right sided back and leg pain and weakness. Her MRI lumbar spine demonstrates disc dehydration and an annular tear at L4/5. There may be contact with the right L5 nerve root. I have organised for her to have a right L5 perineural injection for diagnostic purposes. She will let me know when she has had her nerve studies and lumbar injection.”[72]
[72] AD 4.
Dr Andrew McIntosh
The report of adjunct associate professor of biomechanics and ergonomics, Dr Andrew McIntosh dated 22 September 2022 was before the Panel. Dr McIntosh was provided with certain documents by the insurer and was asked to provide opinions in relation to the likely speed the insured struck, the claimant’s vehicle, the severity of the impact, and the likelihood that the 2021 accident caused the injuries to the cervical spine and the right shoulder. Such documents included a statement from the insured driver but no statement from the claimant as to the circumstances of the accident.[73]
[73] Page 105 of the insurer’s bundle.
Dr McIntosh was of the opinion that it is plausible that the mechanism of the accident could have caused a soft tissue injury to the neck but not a rotator cuff injury to the right shoulder.[74]
[74] Page 143 of the insurer’s bundle.
The Panel accepts that a properly based analysis of the nature of the collision is relevant evidence that the Panel could take into account, although it would not be determinative of the extent of personal injury suffered by the claimant.[75]
[75] cf El-Mohamad v Celenk [2017] NSWCA 242 at [16].
In this case, the Panel notes the following limitations in relation to Dr McIntosh’s report:
(a) Dr Mcintosh’s opinion is based on a closing speed of 15 to 25kmph. On the assumption that the claimant’s vehicle was stationary, Dr Mcintosh concluded that the insured vehicle struck the claimant’s vehicle at a speed in the range of about of 15 to 25kmph. [76] The Panel interposes to observe that this is inconsistent with the statement of the insured driver. In her signed statement dated 10 February 2022, the insured driver said: “When the collision happened, I was possibly still doing 40 or 50 km/h.”
(b) It is based on a change of velocity of 15 to 20 kmph. The Panel considers that there are a number of variables such as the impact angle, vehicle design and pre-crash braking, not referred to in the report which could affect the change of velocity speed.
(c) Dr McIntosh is not able to comment on how the claimant was positioned as the driver of her vehicle at the time of the collision.
[76] Page 143 of the insurer’s bundle.
The Panel finds little assistance from Dr McIntosh’s report in regard to the mechanism of injury in this matter.
RE-EXAMINATION
The claimant was re-examined by Medical Assessor Gorman on behalf of the Panel on
7 February 2025 at the medical suites of the Commission. The claimant attended the assessment unaccompanied.The examination report of Medical Assessor Gorman now follows.
Pre-accident medical history and relevant personal details
The claimant is a 40-year-old woman (at the time of the examination) who works as a psychologist. She has been in private practice since 2011. She is currently working on a part-time basis, eight hours per week via Telehealth. She is married with two sons aged 9 and 12 years.
The claimant suffers asthma and has Factor VIII Leiden which was discovered when she had a pulmonary embolus after the motor accident in 2004.
The claimant confirmed the following previous history of injuries:
· Motor accident on 13 April 2004 - she was stationary in a motor vehicle which was hit from behind by a semi-trailer. She sustained whiplash and lumbar injury. She had scans done, physiotherapy and chiropractic treatment. Her CTP claim was settled for a lump sum.
· Motor accident on 11 February 2014 - she sustained injuries to the cervical spine, thoracic spine and lumbar spine. She was reviewed by neurologist, Dr David Rail on 16 April 2014. She had tingling in the upper limbs and right leg. There were no neurological signs. She had physiotherapy treatment and exercise physiology. She had such treatment until 2016.
· On 7 April 2015, she had a fall when her right leg gave way. She had symptoms involving her left groin and adductor region which subsided after four weeks.
· On 24 June 2019, the claimant was the driver of a Mazda CX9 seven-seater with her two sons in the rear passenger seat. She was wearing a seat belt. A vehicle from the opposite direction collided into the driver side of her vehicle impacting the rear passenger door and a small part of the driver door. The side air bag was deployed. Her vehicle was pushed and hit another vehicle. A man at the scene opened the door for her and she was able to self-extricate and looked after her sons. Police and ambulance arrived at the scene, and she was transported to Campbelltown Hospital.
· On 25 June 2020, the claimant injured her right ankle whilst using a stick vacuum cleaner when her right leg gave way. She states that her neck symptoms were accompanied by numbness in her hands and her back symptoms were accompanied by numbness in her legs. She had an MRI in August 2020 which showed deltoid ligament injury and a subacute sprain of the ATFL and CFL without disruption. She was treated with a Moon boot for six weeks followed by physiotherapy and gradually recovered.
The 2021 motor accident
On 19 December 2021, the claimant was the driver of a Mazda CX9 with her children at the back. Her vehicle was rear-ended by another vehicle. She injured her right shoulder and there was neck pain extending into the right arm and to the thumb and index finger and right arm weakness.
Current symptoms
The claimant complains of shooting neck pain most of the time. She has been diagnosed as having an inflamed occipital nerve. She experiences radicular pain down her right arm to her ulnar fingers.
She complains of bilateral shoulder pain and stiffness that has occurred since the 2019 accident. The left shoulder pain has arisen due to overuse because the right shoulder cannot be used for lifting.
The claimant experiences thoracic and lumbar spine pain as well as pain and tingling in the right foot and toes and occasional left leg pain.
The claimant said that the 2021 accident made her right shoulder worse.
The 2021 accident has worsened her back pain. However, physiotherapy has helped returned it to what it was after the 2019 accident.
Current and proposed treatment
The claimant takes Maxigesic almost every day. She attends physiotherapy and chiropractic treatment as well as exercise physiology. She has stopped psychological therapy.
Summary of relevant radiological and medical imaging and other investigations
The following radiological and medical imaging reports were noted at the assessment:
· The MRI of the cervical spine on 11 May 2020 indicated no cervical cord abnormality and the central canal and foraminal dimensions are adequate at all levels with no neural contact.
· The ultrasound of the right shoulder on 13 August 2021 indicated supraspinatus insertional tendinosis with overlying subacromial/subdeltoid bursitis.
· The MRI of the cervical spine on 23 December 2021 indicated early spondylotic changes at multiple levels, without significant canal or foraminal stenosis.
· The MRI of the right brachial plexus on 12 July 2022 indicated no abnormalities.
· The nerve conduction and EMG report on 25 January 2021 indicated that the upper limb nerve conduction study is within normal limits.
· The MRI of the right shoulder on 12 September 2022 indicated a low-grade supraspinatus and infraspinatus tendinosis without a tear as well as subacromial bursitis with bony impingement anatomy.
· The MRI of the right shoulder on 25 March 2024 - The slightly globular appearance of the anterior labrum at the 3 o’clock position with an adjacent tiny cystic focus was likely a reflection of a previous labral tear which has partially healed/scarred down with a tiny para labral cyst.
Clinical examination
The claimant is right hand dominant. She is 158cm in height and weighs 87.1kg. At the time of the accident, she was 65kg. She has a normal gait.
Cervical spine
There was tenderness in the cervical spine generally but no guarding. There was no dysmetria and the range of movement was as follows:
· flexion - 1/2 normal;
· extension – 2/3 normal;
· rotation – 1/2 normal to both sides and symmetrical, and
· lateral flexion – 1/2 normal to both sides and symmetrical.
There was a non-verifiable radicular complaint regarding numbness in the ulnar 2 fingers of right hand radiating down from the neck.
The neurological examination of both upper limbs indicated that reflexes were normal and symmetrical and there was no weakness nor atrophy.
The right upper arm was 33.5cm in circumference and the left 32.5cm. The left was 27.5cm circumference 5cm below the lateral epicondyle and the left 26.5cm.
There was patchy sensation loss in the right and left upper limbs not localised to any spinal nerve root distribution.
Upper extremities
There was diffuse tenderness over both shoulders. Range of movement was measured with a goniometer.
Shoulder movements
Right (degrees)
Left (degrees)
Flexion
70
150
Extension
30
50
Abduction
60
130
Adduction
30
50
Internal rotation
40
80
External rotation
60
90
Comments on consistency
The claimant demonstrated consistency in the history and the movements outlined above.
CAUSATION AND REASONS
Cervical Spine
The Panel accepts the overwhelming evidence that the 2021 accident caused an injury to the cervical spine.
There is no evidence of any brachial plexus injury. No radiculopathy has been noted in the upper limbs by any of the examiners or treating doctors.
There was no finding of two or more of the requisite signs of radiculopathy[77] by Medical Assessor Gorman on re-examination.
[77] Cl 5,8 of the Guidelines at [25] of these reasons.
There is no evidence of any complete or partial rupture of tendons, ligament or cartilage.
The Panel is satisfied that the injury caused to the cervical spine in the subject motor accident was a soft tissue injury. This is a threshold injury.
The right shoulder
On the day of the accident, GP, Dr Ng recorded tenderness in the upper medial aspect of the right shoulder.
The evidence shows that the claimant continued to complain of symptoms in the right upper extremity. She saw multiple specialists and had multiple investigations as outlined in these reasons.
Eventually in July 2022, the neurologist Dr Levy recommended further investigations. The MRI scan of the right brachial plexus was reported to be normal and the MRI scan of the cervical spine also appeared to be normal. He therefore concluded that there was no evidence of cervical myelopathy or brachial plexopathy identified to account for the claimant’s ongoing symptoms. In the circumstances, he formed the view that the claimant’s symptoms could be related to the right shoulder itself and recommended a referral to an orthopaedic surgeon.
In August 2022, an orthopaedic surgeon, Associate Professor Haber recorded the symptoms of rotator cuff pain, reduced range of motion, weakness, stiffness and numbness. An ultrasound of the right shoulder performed on the same day in his rooms found that there was evidence of a partial thickness tear of rotator cuff tendons. The supraspinatus tendon showed an articular surface partial thickness tear which measures 5 mm by 6 mm.
An MRI scan of the right shoulder was performed on 12 September 2022. Upon review, the reporting radiologist concluded it showed low grade supraspinatus and infraspinatus tendinosis without a tear, subacromial bursitis and bony impingement anatomy.
In October 2023, another orthopaedic surgeon, Dr (Jaykar) Dave reviewed the MRI scan, and formed the view that it demonstrated acromioclavicular joint arthritis and a high-grade supraspinatus tendonitis with possibly a partial or full-thickness tear of the tendon. He recommended a repeat MRI scan to quantify any progression of the tear.
On 25 March 2024, a repeat MRI scan was performed. The reporting radiologist concluded that there was mild subacromial/subdeltoid bursal inflammation, minimal supra and infraspinatus tendinosis and slightly globular appearance of the anterior labrum at the 3 o’clock position with an adjacent tiny cystic focus which was possibly a reflection of a previous labral tear which has partially healed/scarred down with a tiny para labral cyst. He noted that this was more visible on this MRI than on the previous MRI of 12 September 2022.
The Panel notes that at the time of impact, the claimant was twisted to her right to look over her right shoulder giving way while trying to merge in traffic on the main road that was coming from her right and travelling up to a maximum speed of 80kmph. The insurer driver said that she was also in a similar position behind the claimant and as a result, did not see the claimant’s vehicle until she collided with it at possibly 40 or 50kmph.
The mechanism of injury in the accident suggests that there could have been a direct impact on the right shoulder. The Medical Assessors of the Panel accept that the forces of the collision could have caused injury to the claimant’s right shoulder.
The right shoulder had a significant deterioration in range of motion after the 2021 accident.
On the balance of probabilities, the Panel considers that, in view of the absence of any pre-accident tear, the likely mechanism of injury and the post-accident history of pain and disability in the right shoulder, the 2021 accident did cause a supraspinatus tear and/or a labral tear, in the right shoulder which is now partially healed.
This is a non-threshold injury.
FINDINGS
The Panel conducted a new assessment of all the matters with which the medical assessment is concerned.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: See Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45] and Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21], and [64].
The Panel adopts the examination findings and conclusions of Medical Assessor Gorman on examination.
The Panel finds that the injury to the cervical spine caused by the motor accident, is a threshold injury for the purposes of the MAI Act.
The Panel finds that the injury to the right shoulder – a supraspinatus tear and/or a labral tear (partially healed), caused by the motor accident is a not a threshold injury for the purposes of the MAI Act.
CONCLUSION
Accordingly, for these reasons, the Panel revokes the certificate of Medical Assessor Rapaport dated 15 April 2023 and issues a new certificate. The new certificate is attached at the commencement of these reasons.
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