Djenadije v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	Djenadije v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 80
CLAIMANT:	Zoran Djenadije
INSURER:	Insurance Australia Limited t/as NRMA Insurance
REVIEW Panel
MEMBER:	Alexander Bolton
MEDICAL ASSESSOR:	Paul Curtin
MEDICAL ASSESSOR:	Margaret Gibson
DATE OF DECISION:	9 March 2023
CATCHWORDS:	MOTOR ACCIDENTS – Claimant injured in a motor vehicle accident on 13 August 2018 when the left side of his car impacted with a car pulling out from the curb; claimant suffered injuries to his cervical spine, lumbar spine and both shoulders; review of certificate of Medical Assessor (MA) Assem dated 20 December 2021; minor injury dispute relating to shoulders only and whole person impairment (WPI) assessment; claimant had significant injuries for work-related accident in 1995 with ongoing treatment and also suffering an unexpected crash tackle in April 2016 falling heavily on his right shoulder and with subsequent treatment; in December 2018 claimant had an ultrasound of his shoulders revealing a partial-thickness insertional tear at the articular surface; Panel not satisfied that this was causally related to the accident due to initial low-speed injury; opinion that an acute rotator cuff tear would have been accompanied by significant symptoms but none were documented until one month post-accident and finally that there was no indication that the right shoulder was more severely injured than the left; Held – the Panel was not satisfied that any tear of the claimants shoulders arises from the accident; Panel determined that the claimant had a total 6% WPI for both shoulders due to soft tissue impingement and not an acute tear; Panel determined that the claimant had suffered a minor injury to both shoulders.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Determination The Panel revokes the certificate of Medical Assessor Assem dated 20 December 2021. The Panel determines that the following injuries were caused by the motor accident: · cervical spine - soft tissue injury; · lumbar spine – soft tissue injury, and · shoulders – soft tissue injury. The Panel determines that the claimant has a whole person impairment of 6% being the total whole person impairment of 3% for the left shoulder and 3% for the right shoulder. The Panel determines that the following injuries were not caused by the accident: · injuries to both knees. The claimant has suffered a minor injury to both shoulders

Background

This is an application for review of a decision of Medical Assessor Assem (the Medical Assessor) dated 20 December 2021.
The Medical Assessor decided;
(a) The following injuries caused by the motor accident:
(i)right shoulder – soft tissue injury, and
(ii)left shoulder – soft tissue injury.
are a MINOR INJURY for the purposes of the Act.
The Medical Assessor also decided that the following injuries caused by the motor accident give rise to a permanent impairment of 4% and IS NOT GREATER THAN 10%:
(a) cervical spine – soft tissue injury, and
(b) lumbar spine – soft tissue injury.
The permanent impairment dispute assessed by the Medical Assessor related to;
(a)     right shoulder;
(b)     left shoulder;
(c)     right knee;
(d)     left knee;
(e)    cervical spine, and
(f)     lumbar spine.
The minor injury dispute assessed by the Medical Assessor related to;
(a)Body Area: shoulder.
Injury description: tear of the supraspinatus tendon.
(b)Body area: shoulder.
Injury description: intrasubstance insertional tear of the supraspinatus tendon with some bursal surface fraying of the mid and posterior fibres.
The claimant seeks review of the Medical Assessor’s assessment certificate by a Review Panel on the issues of “minor injury” and assessment of the claimant’s degree of whole person impairment (WPI). He seeks review by a review panel of his degree of permanent impairment regarding all body parts referred to the Personal Injury Commission (the Commission) for assessment.
On 14 April 2022 the President’s delegate referred the medical assessment of the Medical Assessor to the Panel as she was 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 this application.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a decision maker. A ‘new decisionmaker’ is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after
1 March 2021, the new provisions apply. The new review provisions provide at s 7.26(5) of the Motor Accidents Injuries Act 2017 (the MAI Act) that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
Part 5 of the PIC Act enables the Commission to make rules with respect to practice and procedure for the Commission including proceedings before a panel reviewing a decision of a Medical Assessor – see s 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts the proceedings and may determine the proceeding solely based on the written application.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned – see s 7.26(6) of the MAI Act.
The Panel issued a direction to the parties requesting the provision of respective bundles. The parties complied with this direction.

The accident

The claimant was involved in an accident on 13 August 2018. The claimant was travelling along Beamish Street Campsie when a vehicle parked on his left pulled out from the curb and collided with the left side of his car. Airbags were not deployed. The claimant was able to drive his car home but subsequently it was written off.

LEGISLATIVE BACKGROUND
Jurisdiction

Mr Djenadije’s claim is governed by the provisions of the MAI Act. This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the MAI Act, there are some disentitling provisions and limits to the amount and extent of benefits available. One of which is that, under ss 3.11(1) and 3.28(1) of the Act, statutory benefits cease 26 weeks after the motor accident if the only injuries sustained by the injured person are “minor” injuries.
It should also be noted that in a common law damages claim, no damages are recoverable if the claimant’s injuries are “minor” injuries.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be medical assessment matters, including (e) “whether the injury caused by the motor accident is a minor injury for the purposes of the Act”.

Minor injury

A minor injury is defined in s 1.6 of the MAI Act as a “soft tissue injury” and a “minor psychological or psychiatric injury”. Section 1.6(2) of the MAI 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.”
In summary, if a person injured in a car accident has soft tissue injuries only then, unless one of those soft tissue injuries falls within the excluding cl of s 1.6(2) the injured person’s statutory benefits cease in accordance with ss 3.11 and 3.28. If a person injured in a car accident has an injury to a structure (such as a bone) or an injury to an organ, that injury will not be a minor injury.
Section 1.6(4) provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines minor 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 (in terms of psychiatric or psychological injuries).
Section 1.6(5) says that the Motor Accident Guidelines (the Guidelines) may provide for the assessment of whether or not an injury is a minor injury. Relevantly to the matters in issue in Mr Djenadije’s claim, cls 5.7 to 5.9 of the Guidelines are headed “soft tissue assessment – injury to a spinal nerve root” and cl 5.7 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.”
Clause 5.8 defines radiculopathy and adopts the method of assessment provided for in the WPI chapter of Part 6 of the Guidelines [1]. Clause 5.9 then provides:
“Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a minor injury.”
Clauses 5.10 to 5.12 are not relevant to the matter before the Panel as they deal with psychological or psychiatric injuries.

Method of assessment

Part 5 of the Guidelines contain the procedure for assessing whether an injury resulting from the motor accident is a “minor injury” for the purposes of the MAI Act. In respect of the medical assessment of whether an injury is a minor injury or not, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a minor psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess minor injury.
5.5 A diagnosis for the purpose of a minor 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 minor 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.”

Claimant’s submissions

The claimant submits that he suffered a tear of the supraspinatus tendon in the right shoulder (Dr Bodel’s report dated 15 February 2019 and Dr Mayat’s report of ultrasound of both shoulders dated 4 December 2018). The claimant submits that this is not a minor injury for the purposes of the Act.
The claimant relies upon the report of Dr Bodel dated 27 July 2020 where he assesses 35% WPI as a result of the motor vehicle accident for physical injury.
The claimant says that the ultrasound of both shoulders performed on
4 December 2018 and reported on by Dr Mayat (A10) is clear objective evidence of a tear of the supraspinatus tendon. Dr Mayat’s report reads:
“Both supraspinatus tendons demonstrate altered echotexture suggestive of supraspinatus tendinosis. The right side demonstrates a partial thickness anterior insertional tear measuring 8mm at the articular surface.”
Dr Bodel, in his report dated 15 February 2019 (A5) refers to the ultrasounds of both shoulders and states:
“I have seen all of these films and I have seen the reports for all of the films except the MRI scans of the cervical, thoracic and lumbar spines (page 3)…
I confirm that I have seen the ultrasounds of both shoulders and there is evidence of a partial thickness tear of the supraspinatus tendon on the right hand side which is a non-minor injury…” (page 7)
The claimant submits that there is clear, objective evidence of Dr Mayat, confirmed by Dr Bodel, both of whom saw the film of the ultrasound of the right shoulder, that the claimant suffers a supraspinatus tendon tear. The claimant says that submissions of the insurer that he has not suffered a supraspinatus tear should be rejected.
The claimant refers to page 10 of the assessment certificate, where the Medical Assessor sets out, under the heading:
“‘Determinations’
22. Diagnosis and reasons, the following:
…
Shoulders
He reported a right shoulder injury from taking evasive actions and steering to the right and the left shoulder injury from steering to the left. The mechanism of injury was highly unlikely to cause bilateral rotator cuff tears. Nevertheless, his shoulder injuries were not documented until 13 September 2018 (one month after the subject motor vehicle accident). Had there been any significant injuries to his right or left shoulder, it would have been noted by
Dr Ducic where he attended several times and documented earlier by
Dr Pukanic. Radiological imaging of his right shoulder was taken more than 18 months after the accident is not clinically relevant. The injuries he allegedly sustained to the right and left shoulder are therefore minor injuries.”
The claimant submits that the Medical Assessor is wrong to refer to radiological imaging of the right shoulder taken more than 18 months after the accident. Medical Assessor Assem had available to him the report of Dr Ahmed Mayat, Rayscan Imaging Liverpool, ultrasound of both shoulders dated 4 December 2018. This is less than four months from the date of the subject motor vehicle accident. The claimant submits and relies on a report of Dr Bodel dated 15 February 2019 (A5), only six months after the accident, when he refers to the ultrasounds of both shoulders and states:
“I have seen all of these films and I have seen the reports for all of the films except the MRI scans pf the cervical, thoracic and lumbar spines”. (Page 3) …I confirm that I have seen the ultrasounds of both shoulders and there is evidence of a partial thickness tear of the supraspinatus tendon on the right hand side which is a non-minor injury …” (Page 7).
The claimant says that at page 7 of the report of the Medical Assessor he refers to a written report of the claimant’s general practitioner (GP), Dr Pukanic dated
22 August 2018. The claimant submits that this is nine days after the accident. The claimant then refers to page 11 of the certificate, where the Medical Assessor finds, “there was a delay before he sought medical attention”. The claimant submits that this is not a delay. The claimant says that to find that the claimant attended his GP,
Dr Pukanic, nine days after the accident results in a “delay”, is an error.
The claimant submits that heunderwent right shoulder injection on
10 December 2018 (A12) less than four months after the accident and an injection to his left shoulder on 13 December 2018 (A13), four months after the subject motor vehicle accident. The claimant submits that to ascribe “delay” to himin complaining of symptoms in the shoulder when he has undergone major, invasive treatment such as injections is an error.
The claimant submits that the Medical Assessor had available to him clinical records from Arncliffe Medical Practice which he records as being for the period from
19 February 2015 to 2 January 2020. These are the notes of the claimant’s usual treating GP, prior to the motor vehicle accident, Dr Dulic. The Medical Assessor noted that the claimant first consulted Dr Dulic on 15 August 2018. The claimant submits that this is consistent with the claimant requiring medical attention for injuries suffered in the accident two days earlier. The claimant says that the Medical Assessor described it as surprising that there was no reference to the injuries allegedly suffered in the subject motor vehicle accident in Dr Dulic’s notes. The claimant points out that at page 3 of the certificate, the Medical Assessor records the following history:
“He (the claimant) consulted Dr Dulic, his usual GP, who does not deal with motor vehicle accident claims. He was subsequently referred to Dr Pukanic who arranged various investigations for injuries that he reported to his neck, shoulders, wrists, hands, hips, knees, ankles and feet.”
The claimant submits that it is not at all surprising that Dr Dulic, having made it clear to the claimant that she does not treat patients for motor vehicle accident claims, did not record complaints by the claimant of injuries suffered in the motor vehicle accident.
The claimant says that the Medical Assessor states that had there been any significant injuries to the right and left shoulders they would have been documented earlier by
Dr Pukanic. However, the claimant says that injuries to both shoulders are set out in
Dr Pukanic’s initial certificate of 13 September 2018, one month after the accident.
The claimant refers to a conclusion of the Medical Assessor that the injuries allegedly sustained to the right and left shoulder are minor injuries. The claimant says that this is logically inconsistent reasoning. The claimant submits that injuries to the shoulders either were or were not caused by the motor vehicle accident. The claimant says that is not sufficient for the Medical Assessor to simply say that the injuries allegedly sustained to the right and left shoulders are minor injuries when his reasoning indicates he considers that the claimant did not suffer injury to the right shoulder or left shoulder at all in the subject motor vehicle accident. The claimant refers to page 10 of the Medical Assessor’s certificate, under the heading, “Determinations Diagnosis and reasons”. The Medical Assessor records the following:
“Knees
He has pre-existing pathology involving both knees. There was no specific mechanism of injury and no radiological evidence provided to support any acute traumatic pathology that could be causally related to the subject motor vehicle accident.”
The claimant goes on to say that at page 11 of the certificate under the heading, “Summary of injuries referred by the parties”, the Medical Assessor sets out the following:
“The following injuries WERE caused by the motor accident:
a.    Cervical spine – soft tissue injury
b.    Lumbar spine – soft tissue injury
c.     Right shoulder – soft tissue injury
d.     Left shoulder – soft tissue injury”
The claimant submits that having found that there was no evidence to support that injury to the knees was causally related to the subject motor vehicle accident,
the Medical Assessor should not have assessed WPI of the right knee and the left knee, as he did on pages 12 and 13 of the certificate. Nor, the claimant submits, should he have included the left knee and the right knee in his assessment of degree of permanent impairment at pages 1 and 2 of the certificate. The claimant submits that this is an error.

Insurer’s submissions

The insurer rerefers to the claimant asserting that the Medical Assessor fell into error in failing to have regard to imaging taken on 4 December 2018 or a report of Dr Bodel (dated 15 February 2019) commenting on that material.
The insurer says that it is evident however, from the body of the Medical Assessor’s reasons that the Medical Assessor had regard to, and engaged with, both of these documents (page 7 and 9 of the Medical Assessor’s reasons). In the insurer’s submission, the claimant’s position incorrectly assumes that the Medical Assessor was required to detail again each investigation at paragraph 22 of his reasons. The insurer disputes that the Medical Assessor’s obligation to provide his pathway of reasoning extended to reventilating each piece of evidence in each section of his reasons.

The insurer acknowledges that the Medical Assessor did refer to one investigation of the claimant’s shoulders at paragraph 22 of his reasons. The insurer submits that significantly however, the Medical Assessor stated that this imaging (taken 18 months after the accident) was irrelevant to his assessment of whether the claimant sustained tearing at the time of the accident.
The insurer submitted that the claimant does not assert that any of the references recorded by the Medical Assessor were incorrect or that he failed to have regard to any relevant material. The insurer says that the claimant correctly records that on page 7 of his report Medical Assessor Assem referenced a report dated August 2018 written by the claimant’s GP.
The insurer says that despite being aware of this material, the Medical Assessor formed the view that if the claimant sustained a significant injury to his shoulder it would have been documented earlier. The insurer says that it is important that the Medical Assessor’s reference was to significant injury (i.e. the tears that are said to be non-minor injuries) and not merely the possible strains recorded by Dr Pukanic
The insurer submits that the claimant does not assert that any of the references recorded by the Medical Assessor were incorrect or that he failed to have regard to any relevant material.
The insurer says that the Medical Assessor’s clinical findings were also consistent with those reached by Dr Rosenthal whose report was considered by the Medical Assessor.
The claimant asserts that he has a significant WPI as a result of his accident related, physical injuries. The claimant relies on Dr Bodel in support of this proposition. The insurer notes that Dr Bodel did not however consider the claimant’s injuries to have stabilised as at the time of his assessment and the insurer therefore says that in accordance with cl 6.19 of the Guidelines he should have not provided an assessment of WPI.
The insurer says that the Medical Assessor would not accept that the claimant would have suffered such widespread injuries having regard to the mechanism of the accident.
The insurer relies on the findings of Dr Rosenthal. While the claimant has had extensive imaging since the accident the doctor considered that all of the presenting pathology was degenerative in nature.
The doctor however, determined that having regard to the circumstances of the accident the likelihood of any ongoing persistent injury is unlikely and any soft tissue injuries caused by the accident have resolved.
Pre-accident, the claimant disclosed two arthroscopic procedures to his right knee in 2012 and 2015 and a soft tissue injury to his back in 1995 as a result of a work incident.
The insurer also notes that there are a number of Centrelink medical certificates available with respect to the claimant’s bilateral knee pain, sinusitis, headaches and elbow pain. The insurer says that while no impairment is alleged with respect to these parts of the body these provide context to the claimant’s pre-accident pain disorder.
On 14 July 2015, the claimant was referred to neurologist, Dr Hassan for chronic low back and neck pain radiating to the right shoulder. The claimant consulted the doctor on 21 August 2015 at which time it was recorded that the claimant’s pain had commenced in 1995 after a fall from 3 m in the course of his employment.
The insurer says that the claimant suggests that the Medical Assessor fell into error by recording that the claimant had a previous history of shoulder complaints. The claimant then suggested that there was no reference to shoulder complaints in the material available to the Medical Assessor.
The insurer notes references to right shoulder pain in the records of Dr Bassell Hassan as early as July 2015. Dr Bassell does not really make any reference to right shoulder pain, he merely refers briefly to “pain in the mid thoracic spine radiating to the right scapula tip” which does not suggest a problem primarily located in the shoulder. It is suggested that the claimant’s pain was responding to Lyrica and as such was not further investigated. The insurer observes that the claimant continued to utilise Lyrica up to and following the accident. The insurer says that the claimant’s submission is therefore factually incorrect and should be rejected.
With regard to causation, the insurer says that the Medical Assessor concluded it was highly unlikely that the claimant would have sustained bilateral rotator cuff tears having regard to the mechanism of the accident.
The insurer says that the claimant initially suggested that the Medical Assessor was not qualified to make this finding which could have only been made be a biomechanical engineer. The insurer observed that the Commission’s Medical Assessors are assigned to determine disputes with respect to causation and injury. The insurer says that it is inherent in that assessment that the Medical Assessor must consider whether an injury is consistent with the mechanism of the accident. The insurer says that there is no reason why an appropriately trained specialist - such as the Medical Assessor - could not undertake such analysis. In the insurer’s submission a failure to do so would result in a failure to exercise jurisdiction and cause the Medical Assessor to fall into error.
The insurer says that the claimant then proceeded to make an opposite submission and suggested that not only should the Medical Assessor have made findings about causation but also that he should have rejected the claimant’s description of the accident and hypothesised about other mechanisms that could have resulted in the claimant sustaining the injuries alleged.
The insurer says though that the claimant does not however assert that the mechanism of the accident as recorded by Medical Assessor Assem was incorrect.
The insurer says therefore that with reference to the claimant’s descriptions of the accident under headings 9 and 10, the Medical Assessor made an appropriate and reasoned assessment as to whether the tears in the claimant’s shoulders could have been caused by the accident.
Regarding assessment of the claimant’s WPI of his shoulders the insurer says that the Medical Assessor’s opinion was that the evidence was inconsistent with the claimant sustaining a significant injury to his shoulders in the accident and more specifically was inconsistent with his sustaining bilateral tears to his shoulders.
With respect to the measure of impairment assessed the insurer observes that it is evident from the Medical Assessor’s reasons and in particular his comments on page 12 that he regarded the claimant’s measured range of motion highly inconsistent such that range of motion was not an appropriate measurement of impairment. The claimant does not challenge this finding.
The insurer says that in such circumstances it was appropriate and consistent with the guidelines for the Medical Assessor to apply the analogy approach adopted by the Medical Assessor. The insurer says that the claimant has failed to identify a relevant error.
Concerning assessment of the claimant’s knees, the insurer says that the claimant’s submission appears to be that the claimant’s knee injuries should not have been listed on the impairment table. The insurer says that in circumstances where the Medical Assessor found that the claimant sustained no relevant permanent impairment it may not have been necessary to include these injuries on the permanent impairment table.
The insurer noted that in January 2017 the claimant discussed the possibility of stem cell treatment for his right knee with Dr Dulic. The insurer said that given the nature of this treatment it would be accepted that the claimant was suffering from significant symptoms in 2017. This followed the claimant being crash tackled in April 2016 and subsequently being treated by Dr Fritsch.

Medical evidence

A report of Mr Andrew Phan dated 29 October 2018 noted that the claimant had a whiplash associated disorder (WAD) grade II neck injury, subacromial pain syndrome for both shoulders, soft tissue/mechanical sprain of the upper and lower back, hip pain, wrist sprain and on re-examination, right knee pain with patellar – femoral pain syndrome.
Dr Pukanic was unable to comment on the claimant’s function prior to the accident as he had only been involved in his care post-accident at the request of the claimant’s family doctor, Dr Dulic.
Following the accident, the claimant’s first attendance on his GP was on
15 August 2018. However, the reason for the consultation was only noted as family stress. There was no reference to the accident and any ongoing pain arising from that.
The clinical notes of Arncliffe Medical Centre note a report from Dr Hassan dated
21 August 2015 where there was reference to chronic pain since 1995 following a fall from a 3 m height at work. Since that time the claimant had persistent right-sided spinal pain and constant aching pain.
The claimant was crash tackled in April 2016, heavily from his right side and since that time had trouble with his right knee.
On 14 July 2015 the claimant was referred to Dr Hassan a neurologist for chronic low back and neck pain radiating to the right shoulder.
Dr Hassan, when viewing the radiological images, as referred to in his report of
21 August 2015, noted moderately severe degenerative changes in the cervical spine and mild degenerative changes in the lumbar spine.
In January 2017 the claimant discussed the possibility of stem cell treatment for his knee with Dr Dulic.
The claimant first had imaging of his right shoulder after the accident on
16 November 2018. An X-ray demonstrated no acromioclavicular (AC) joint or glenohumeral arthropathy. An ultrasound on 4 December 2018 demonstrated a surface partial thickness tear on the right. This was commented upon by Dr Giblin as evidence of bilateral subacromial bursitis and impingement only. Dr Giblin was the claimants treating orthopaedic surgeon.
A subsequent MRI was performed on 23 April 2020 of the left shoulder which documented that the claimant had an AC joint arthropathy with mild synovitis and articular surface oedema, subacromial/subdeltoid bursal inflammation and supraspinatus tendinosis with an intrasubstance insertional tear.
However, an MRI of the right shoulder of 23 April 2020 showed no evidence of a tear.
Dr Bodel in his report of 15 February 2019 reported the range of movement of the cervical spine as very restricted and did appear somewhat more excessive than he would have anticipated for a person of the age of the claimant with the degree of pathology in the neck at the stage of six months after the injury. He had a very restricted range of shoulder movement. He did have identifiable pathology in the shoulders, but again, Dr Giblin said that the range of movement was very restricted and did not in his view accurately reflect the expected restricted range of movement in a person of the claimants age, with his underlying pathology. The range of movement was reported to be fairly consistent however, on clinical testing. The range of movement in both shoulders was recorded as follows;

Shoulder Movement	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	70˚	70˚
Extension	30˚	30˚
Adduction	10˚	10˚
Abduction	60˚	60˚
Internal rotation	40˚	40˚
External rotation	40˚	40˚

Dr Bodel reported that the claimant had a mixture of injuries which by definition were minor and non-minor. He said that based on the clinical presentation and the reported abnormalities of the various investigations, but particularly the ultrasounds of both shoulders, the claimant had a partial thickness supraspinatus tendon tear which is a “non minor injury on the right shoulder”. Dr Bodel said that the claimant may have a similar tear in the left shoulder although that was not confirmed on the ultrasound.
In regard to the cervical spine, thoracic spine and lumbar spine Dr Bodel said that the claimant did not have any neurological abnormality in the arms or legs which would constitute radiculopathy and therefore by definition, the injuries to these areas at that stage remained minor injuries.
Dr Bodel confirmed that the right shoulder did have reported abnormalities consistent with the partial thickness tear which he said was a non minor injury but all other areas of injury at this stage remain minor injuries by definition.
He said that the only qualification of that statement that he would make is that he had not seen the official report of the MRI scans of the cervical, thoracic and lumbar spine.
Dr Bodel provided another report on 27 July 2020. Shoulder movements were reported as follows;

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	100	100
Extension	30	30
Adduction	10	10
Abduction	80	80
Internal Rotation	50	50
External Rotation	50	50

Dr Bodel said that the diagnosis from the musculoskeletal point of view was very difficult. He said that the claimant had multiple soft tissue injuries to the neck, middle back, lower back, both shoulders and the right hip, both knees and the left ankle. He had well documented previous pathology in both knees which had been asymptomatic at the time of his motor vehicle accident but has been rendered symptomatic again by the accident and he had developed rotator cuff pathology in both shoulders, which had probably come on as a result of the accident.
Dr Bodel said the degree of the claimants ongoing physical complaints was widespread. He virtually has no part of the body that is not causing him pain and that was difficult to correlate with the mechanism of injury that he described.
The claimants treating orthopaedic surgeon, Dr Giblin, reported that claimant as being extremely pain focused.
Dr McKechnie, neurosurgeon said in his report of 13 August 2018 that the whole spine MRI demonstrated several disc protrusions in the neck with several areas of mild to moderate foraminal stenosis. He said that there was minimal disc pathology in the thoracic region and several small lower lumbar disc protrusions.
Dr Rosenthal in his report of 7 September 2020 reported that there were significant pain behaviours including shaking during various parts of the examination. Once in the consulting room Dr Rosenthal said that the claimant appeared to sit comfortably during the interview.
Formal examination revealed significant inconsistencies and pain behaviours.
Dr Rosenthal reported that the claimant was tender everywhere but particularly in the lower lumbar region even to light touch with shaking and overacting generally on spinal palpation. The claimant self-restricted all neck movements symmetrically by approximately half and it was reported that he appeared not to be giving maximal effort.
There was significant restriction in shoulder movements with abduction barely attempted to 40-50 degrees. Dr Rosenthal said that no meaningful shoulder movement measurements could be taken, although passive movements of the shoulders appeared not to cause significant discomfort and were far greater than active movements. At the examination, the claimant was wearing wrist braces and a large elastic brace on his left upper arm which he removed for the examination. There was restriction in movements of the elbows, wrists and generalised tenderness on most body parts.
Results of various investigations including an MRI of the brain were said to have shown various reported abnormalities which are all of long standing and / or degenerative nature. Dr Rosenthal said that no abnormalities appeared to be due to acute trauma and none of the abnormalities would be consistent with the biomechanics of the collision.
Investigations were also performed on wrists, ankles and knees none of which showed abnormalities consistent with trauma. An ultrasound of the wrist was reported on and was consistent with De Quervains synovitis which would not have been caused by trauma from the accident.
Clinical notes of Dr Dulic were reported on by Dr Rosenthal as noting a number of pre-existing conditions prior to 13 August 2018. It was reported that on
20 September 2017, coping strategies to assist the claimant manage chronic pain syndrome were discussed with a prescription of Lyrica. Back pain was noted in
July 2018. Dr Rosenthal referred to an attendance on 15 August 2018 (two days after the motor accident) where no mention of the accident was made to Dr Dulic.
Chronic pain issues continued to be treated by Dr Dulic after the motor vehicle accident with records referring to osteoarthritis and back pain. No symptoms were attributed to the motor accident in the clinical records.
Dr Rosenthal said that the claimant may have had some soft tissue injuries initially as a result of the accident. There was a pre-existing chronic pain state and essentially, he has a chronic pain syndrome.
The doctor said that inconsistencies on examination made it difficult to determine whether there was any meaningful injury persisting from the accident. He said that on review of the circumstances of the accident, and damage to the vehicles, the likelihood of any ongoing persistent injury was unlikely and any soft tissue injuries caused by the accident had resolved.
The Medical Assessor observed in his report that on commencement of formal examination of the claimant, there was a dramatic deterioration in his condition with stiffness involving his body, pain behaviour in the form grimacing, localisation and muscle guarding due to the simultaneous contraction of the agonist and antagonistic muscle groups.
The Medical Assessor noted with respect to be cervical spine that there was no reported acute pathology.
Concerning the claimant shoulders, the Medical Assessor said that injuries to this area were not documented until 13 September 2018.
The Medical Assessor discussed imaging of the lumbar spine and said that this identified pre-existing degenerative changes including a disc protrusion with an annular tear. The Medical Assessor said that this pathology was degenerative in nature and are likely to be caused by the accident.
The Medical Assessor’s conclusions have already been noted.

Examination of the claimant

The claimant was examined by Medical Assessor Curtin and Medical Assessor Gibson. Their report follows:
1.   Pre-accident medical history and personal details.
Mr Djenadije was born in Serbia but migrated to Australia as an infant with his family. He is a divorced man who lives with his parents and adult son in his parents’ home. He acts as a carer for his elderly mother. In 1995 he fell some 3 m at work, injuring his back, which he admits has been painful ever since. He subsequently saw Dr Bassel Hassan, Neurologist, whose letters of the 21/08/2015 and 21/09/2015 refer to the 1995 work injury and his complaints of neck pain, thoracic spine pain and low back pain. Neck movements at that time were restricted but he was able to bend over and touch his toes. There was no clinical evidence of radiculopathy or myelopathy. Imaging was carried out at that time. The cervical spine MRI showed moderately severe degenerative changes, the thoracic spine MRI was essentially normal and the lumbosacral spine MRI showed only mild degenerative changes. Dr Hassan prescribed gabapentin, which Mr Djenadije appears to have taken regularly since that time.
On 16/03/2015 he underwent arthroscopy and partial medial meniscectomy to both knees. The clinical records of his usual GP, Dr Dulic from 2015 to 2019 report around 50 visits over the period and provide background information concerning his medical history prior to the accident on 13/08/2018. There are regular references to chronic pain affecting his neck, lower back and knees. There are four references to counselling for “chronic pain syndrome”. There are also references to psychological issues including anxiety, panic attacks and irrational fears. There are references to gastro- oesophageal reflux disease for which he has received regular treatment. He is also been treated for gout and asthma.
2.   History of the motor accident and subsequent history.
Mr Djenadije stated that he was driving his car along a main road in Campsie, when a parked car suddenly pulled out in front of him. He said that he pulled the steering wheel sharply to swerve to the right, but was unsuccessful in avoiding a collision. He then had to swerve sharply to the left to avoid an oncoming vehicle. He said that he felt his shoulders were injured by this sudden physical activity. He said that he was very shocked by the accident and was not sure about feeling any pain at that time.
He consulted Dr Dulic two days later on the 15/08/2018. The doctors records make no mention of a car accident at that time, nor at any of the regular consultations over the ensuing months. The record for the 15/08/18 only refers to “family stress, diet discussed, and counselling”, together with the supply of various prescriptions. Mr Djenadije said that Dr Dulic would not get involved in any motor accident claims and that he was told he would have to consult somebody else about this.
Mr Djenadije said that he went to see Dr Todorovic about two weeks after the accident. From the documentation it seems more likely that he actually saw Dr Pukanic. His hand written records are not easy to decipher, but the record on the 28/8/18 states that in the accident he “suffered injuries to his neck, in between the shoulder blades and low back”. The report also refers to pain radiating from the neck to the right upper limb with sensations of pins and needles in the right-hand. He was seen again by Dr Pukanic on the 26/11/18 and referred for an ultrasound of both shoulders which was carried out on the 4/12/18 and which showed bilateral subacromial bursitis with bursal impingement, a partial thickness tear of the supraspinatus on the right and mild AC joint degeneration on the left. There are also entries by Dr Pukanic for the 27/8/19, 29/8/19, 5/9/19 and 16/9/19, all handwritten again and not consecutive with other entries, so their significance is uncertain. They are virtually illegible in any case.
The records of Dr Todorovic cover the period 11/3/2020 to 12/5/20. The handwritten references refer to injuries sustained in the motor vehicle accident and these injuries included the neck, the whole back, both shoulders, right hip, right knee both ankles and both feet. Flexion and abduction of both shoulders is recorded at 90° in each case. Mr Djenadije was referred to Dr Simon McKechnie Neurosurgeon on the 16/9/2019. His letter of that date refers to Mr Djenadije symptoms of pain and discomfort in the neck thoracic and lumbar spine associated with headaches, pain across both shoulders, pain in the hands both feet and ankles, right hip and right knee. The letter refers to an MRI of the whole spine (1/2/19) which he said demonstrated several disc protrusions in the neck with several areas of mild to moderate foraminal stenosis, minimal disc pathology in the thoracic region and several small lower lumbar disc protrusions. Dr McKechnie recommended nonoperative treatment and encouraged Mr Djendije to continue with his physical and medical treatment program.
Dr Pukanic referred Mr Djenadije to a Psychiatrist, Dr Blagoje Kiljic, and the documentation contains his letters covering the period 18/11/19 to 24/6/20. Dr Kiljic reported symptoms of depression, lassitude and insomnia. Mr Djenadije had not apparently seen a psychiatrist before but had been prescribed antidepressants by his GP in 2015. Dr Kiljic prescribed paroxetine and Efexor (antidepressants), together with quetiapine (antidepressant, antipsychotic). Mr Djenadije was referred to Dr M Giblin, Orthopaedic Surgeon on the 26/02/2020. Dr Giblin reported on the cervical, thoracic and lumbar spine, shoulders, ankles, right knee and wrists. He did not provide an impairment assessment.
Independent Medical Assessments were carried out by Dr Thomas Rosenthal (1/09/2020), Occupational Physician (1/09/2020) and Dr Graham Vickery, Psychiatrist (2/09/2020). Dr Rosenthal found inconsistencies on examination, and considering the circumstances of the accident, concluded that it was unlikely that Mr Djenadije had any ongoing persistent injury as a result of the accident. Dr Vickery diagnosed “somatic symptom disorder (DSM5) in which there are prominent somatic symptoms which give rise to significant psycho pathology and functional impairment. Dr Vickery added that “somatic symptom disorder does not arise from the motor vehicle accident as it is a subsequent injury involving multiple socio-psycho-biomedical factors”
Current symptoms.
Mr Djenadije said that his main current problem was one of frequent “collapses”, when he falls down after feeling faint. He admitted to chronic pain of his neck, shoulders and lower back and said that he had trouble getting to sleep. He said that he needed to have multiple pillows adjusted to keep him in a comfortable position so that he could get some rest. He said that his mobility was now considerably restricted and that he needed help from his brother to look after his mother. He said that he could walk for only 10 or 15 minutes before he needed to take a rest and that he always used a stick for support when he left his home. He said that he continues to take gabapentin and an antidepressant (Prozac). He described having frequent muscle spasms, and that he also suffered from migraine headaches.
He described pain in his neck radiating into both arms, and that low back pain radiated into the lateral aspect of both thighs, but not beyond the knees. He complained of bilateral arm pain, which had a global distribution, affecting the upper limbs bilaterally
3.   Findings on clinical examination.
Mr Djenadije was a large, strong looking Caucasian man of 50 years. He had a BMI of 34.7 (110 kg and 178 cm) which put him into the obese category, although he did not look particularly fat. He was well groomed, pleasant and cooperative with the assessment.
He brought a walking stick to the assessment, but he was able to walk freely without it, although with a limp favouring his right leg. He was able to squat right down with full flexion of his right hip and knee and part flexion of his left leg. When asked if he could walk on his toes or heels, he said that was not possible, however he could stand on his forefeet and his heels.
Spontaneous neck movements appeared normal, but on formal assessment movement of the neck appeared to be very restricted and was accompanied by some shaking and grimacing. There was no muscle spasm or guarding. When his attention was directed away from the neck he appeared to be able to be able to flex and rotate his neck almost normally. Lateral tilt and rotation movements also varied, but not so much, when measured repeatedly. On repetition there was no asymmetry of movements. When asked about the discrepancy he said it related to how he moved and he agreed that when focused on neck movements he was more aware of the pain.
On examination of the thoracic spine, there was no muscle spasm or guarding, and rotation was symmetrical to ¼ normal range.
On examination of the lumbar spine, there was no muscle spasm or guarding, On formal assessment flexion and extension was ¼ normal and lateral flexion was ½ normal range to right and left.
On examination of the upper limbs, deep reflexes were brisk and symmetrical. Circumferential measurements of the upper limbs were consistent with right hand dominance, arms measuring 33cm bilaterally and right forearm 30cm and left forearm 29cm, therefore no evidence of any unilateral muscle wasting.
Skin sensation appeared to be reduced on the posterolateral aspect the left upper arm (C5 dermatome), but also appeared reduced in a glove and stocking fashion affecting all the fingers (excluding the thumb) of both hands.
Upper limb power was symmetrical and normal.
On examination of both shoulders there was tenderness over the entire shoulder joint. Movements were significantly restricted but there was some inconsistency with repeated measurements. Range of movement deteriorated on repetition. When asked, he indicated that his symptoms did get worse when he performed more activity.
Goniometer measurements were as follows:

Shoulder Right Left

flexion 110°, 85° 75°, 70°

Extension 50°, 70° 0°, 40°

Adduction 50° 40°

Abduction 80°, 70° 50°, 70°

Internal rotation 70° variable 20° variable

External rotation 50° variable 90° variable
On examination of the lower limbs, circumferential measurements at thighs were 49cm bilaterally and calfs 42cm bilaterally. Reflexes were normal and symmetrical bilaterally. There was some ‘giving way’ on testing lower limb power, but no radicular weakness was demonstrated.
On examination of both knees, there was no swelling or crepitus. No instability was demonstrated. Knee flexion was 110 degrees of flexion and 0 degrees extension.
4. Comments on the minor injury dispute: The claimant submits that he sustained a partial tear of the rotator cuff of his right shoulder in the accident and that this therefore satisfied the definition of a non-minor injury. The Claimant also points out that the assessment of Dr Assem referred to an ultrasound of the shoulder which demonstrated the rotator cuff tear was taken 18 months after the accident and deemed to be not clinically relevant. Another ultrasound also showing this injury, but taken four months after the accident, might have been thought to be more relevant, but was not considered by Dr Assem. There are however, other reasons that the ultrasound reports could be discounted in considering this issue. Assessor Assem said that the circumstances of the accident are unlikely to have resulted in any significant shoulder injury. The Panel agrees with this. Studies suggest that the majority of rotator cuff tears are the result of a degenerative process, the incidence of which increases with age, and do not involve a traumatic causal incident. It is also noted that a subsequent MRI of the right shoulder carried out on the 22/04/2020 showed “no rotator cuff pathology”. The ultrasound of both shoulders taken on 04/12/18 showed tendinosis of the supraspinatus on both sides, suggestive of degenerative change, together with a partial-thickness tear measuring 8 mm on the right side.
The panel however is in agreement with Dr Assem that the circumstances of the accident is unlikely to have resulted in this partial-thickness tear in the right shoulder. The relatively minor damage to the car and Mr Djenadije’s history of pulling his steering wheel to the right or left are not supportive of such an injury. There is no documentation from his GP, Dr Pukanic in support of any acute injury to the right shoulder. Mr D Djenadije did not consult Dr Pukanic until two weeks later, and Dr Pukanic’s written notes of that date did not include any clear reference to a shoulder injury. The only reference to a shoulder problem did not appear until the 08/11/2018, when there was a reference to a strain of the cervical, thoracic and lumbar spine together with a strain of both shoulders.
In view of the fact that there was virtually no documented history of shoulder symptoms prior to the accident, the panel accepts that the accident could have resulted, and did result, in shoulder strain on both sides. An injury of this type is a soft tissue injury only and does not involve injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage. The shoulder strain therefore satisfies the definition of a minor injury.
5. Comments on Whole Person Impairment.
The assessment was rendered more difficult by some inconsistency in the measurement of movement ranges, but that inconsistency was not to the extent that a reasonable approximation of movement ranges could not be made.
Cervical spine: During the examination there was significant restriction of cervical movement, but there was no muscle spasm guarding or asymmetry and the sensory symptoms were global. While sitting and giving his history however, spontaneous neck movements were normal, he appeared relaxed and in no pain. He was able to turn his head back to his bag and in other directions without issue. His condition falls into the DRE Cervicothoracic Category 1 which attracts a rating of 0% WPI.
Lumbar spine: There was restriction of movement in all planes, but without dysmetria, muscle guarding or neurologic impairment. The condition falls into the DRE Thoracolumbar Category 1 which attracts a rating of 0% WPI.
Right and left shoulders: The panel was broadly in agreement with the assessment of the assessor. There was some inconsistency in examination, the reliability of which was compromised by the prior history of “chronic pain syndrome” and the difficulties arising from his Somatic Symptom Disorder (Dr Vickery report 02/09/2020). The Guidelines (para-6.40) advise that when observations appear unreliable “the medical assessor should modify the impairment estimate accordingly, describe the modification and outline the reasons in the impairment evaluation report”. It appears reasonable to allow an impairment rating equivalent to what would be expected in a person with a soft tissue injury causing impingement. Such impingement likely to result in restriction of shoulder flexion and abduction to 150° and internal rotation to 60°. This would result in 5% UEI and 3% WPI to each shoulder.
Knees: Prior to the accident there was a long history of pain in both knees together with documents relating to arthroscopic partial meniscectomy to both knees in 2016. The Panel agrees with the assessor that there was no specific mechanism of injury to account for any exacerbation of his knee complaints. Mr Djenadije for his part was much more concerned that his neck and shoulders had been aggravated by the accident rather than his knees. Considering his past history the examination of his knees was unremarkable. There was no assessable whole person impairment.”

The Panel adopts the findings of Medical Assessor Curtin and Medical Assessor Gibson.
The only WPI assessment attributable to the accident relates to soft tissue injury to the claimant’s shoulders. The Panel has assessed WPI for each shoulder at 3% giving a total WPI assessment of 6%.

Causation

The claimant was involved in a motor vehicle accident on 13 August 2018. He was the driver of a small car. The insured car was parked on the side of the road and proceeded without warning into the lane in which the claimant was travelling. His car was impacted on the left side. Ambulance and police were not in attendance and the claimant drove his care home.
The Panel has concluded that it would not be unreasonable for the claimant to suffer injury to his right and left shoulders, and cervical spine and lumbar spine as a direct consequence of this accident.
It cannot be denied that on the 4 December 2018, when the claimant had an ultrasound of his shoulders, that he had a non-minor injury of the right shoulder. The ultrasound report reads “both supraspinatus tendon’s demonstrate altered echo texture suggestive of supraspinatus tendinosis. The right side demonstrates a partial-thickness insertional tear measuring 8 mm at the articular surface”.
In the opinion of the Panel however, it is their finding that the injury was unlikely to have occurred at the time of the motor accident for three reasons:
(a)   the original accident involved a low-speed injury which resulted in some denting and scratches along the side panels of the car. It was the opinion of both the Medical Assessor and Dr Rosenthal that the circumstances of the injury were unlikely to have resulted in a rotator cuff tear. Dr Giblin does not mention a rotator cuff tear at all and Dr Bodel does not specifically state that the accident resulted in any rotator cuff tear;
(b)   an acute rotator cuff tear would have been accompanied by significant symptoms none of which were documented until one month later on the
28 August 2018, and
(c)   there was no indication that the right shoulder was more severely injured than the left. On the 28 August 2018, Dr Pukanic records that the claimant suffered injuries to “his neck, in between the shoulder blades and low back”. There is no specific mention of the right shoulder. An allied health recovery request dated 29 October 2018 notes “subacromial pain syndrome for both shoulders” and refers to identical symptoms of discomfort on both sides and identical ranges of movement. Any subsequent shoulder examinations have not yielded any significant difference between the shoulders.
The Panel is satisfied that there is evidence following the accident that the claimant had a partial thickness tear of his right shoulder. For the reasons above, the Panel is not satisfied though that any tear of the claimant’s shoulders arises from the accident.
The Panel also notes that before the accident the claimant had another accident in 1995 when he fell 3 m, in the course of his employment.
The claimant also sought treatment from Dr Hassan, neurologist, for his low back, neck and shoulders in July 2015 as recorded in his notes and which reflect that the claimant was responding to administration of Lyrica up to and following accident.
The claimant also was a victim in April 2016 of what is described as a crash tackle by Dr Hassan, in his clinical notes. He was recorded as falling heavily on his right side and since that time has had trouble with his right knee. This event would have been unexpected and of significant impact, noting the description of a “crash tackle”. It would be reasonable to expect that a considerable part of the claimant’s body would have suffered injury as a result of this incident.
For the above reasons, the Panel is not satisfied that the accident has caused the partial thickness tear to the right shoulder of the claimant. There was no immediate complaint of injury or pain in his shoulder areas immediately after the accident.
The dynamics of the accident are such that the claimant’s car was sideswiped rather than heavily collided into. Any left to right/right-to-left force would be unlikely to be a such a forceful occurrence to cause a partial tear particularly as he would have been wearing a seatbelt and “braced” by holding the steering wheel.
To consider that the tear to the right shoulder arose out of the accident is a matter of speculation and not supported by the evidence before the Panel.
The Panel is not satisfied that there is evidence before it, rather than speculation, which categorically establishes that the claimant suffered a tear to the right shoulder as a consequence of the accident.

Minor injury

Following the Panel’s conclusions regarding causation of the claimant’s shoulder injuries, the Panel is satisfied that the claimant has suffered a minor injury to his shoulders.
The injuries to the claimant’s shoulders, neck and low back are soft tissue injuries only and without radiculopathy.

Determination
The Panel revokes the certificate of Medical Assessor Assem dated
20 December 2021.

The Panel determines that the following injuries were caused by the motor accident:

·        cervical spine - soft tissue injury;
·        lumbar spine – soft tissue injury, and
·        left and right shoulders – soft tissue injury.

The Panel determines that the claimant has a WPI of 6 % being the total WPI of 3% for the left shoulder and 3% for the right shoulder.
The Panel determines that the following injuries were not caused by the accident:

· injuries to both knees.

Shoulder	Right	Left
flexion	110°, 85°	75°, 70°
Extension	50°, 70°	0°, 40°
Adduction	50°	40°
Abduction	80°, 70°	50°, 70°
Internal rotation	70° variable	20° variable
External rotation	50° variable	90° variable

[2023] NSWPICMP 80

9 March 2023