Dragicevic v Insurance Australia Ltd t/as NRMA Insurance
[2025] NSWPICMP 474
•2 July 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Dragicevic v Insurance Australia Ltd t/as NRMA Insurance [2025] NSWPICMP 474 |
CLAIMANT: | Dragicevic |
INSURER: | Insurance Australia Ltd t/as NRMA Insurance |
REVIEW PANEL | |
MEMBER: | Maurice Castagnet |
MEDICAL ASSESSOR: | Dr Les Barnsley |
MEDICAL ASSESSOR: | Dr Mohammed Assem |
DATE OF DECISION: | 2 July 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); claimant suffered injury in a motor accident; dispute about whether the injuries caused by the accident were threshold injuries; whether the motor accident caused a SLAP tear in the left shoulder; whether the motor accident caused an annular tear in the thoracic disc between T6 and T7; Held – MAC revoked; injury to the thoracic spine is not a threshold injury. |
DETERMINATIONS MADE: | 1. The Review Panel revokes the certificate of Medical Assessor Thomas Rosenthal dated 8 May 2024. 2. The Review Panel issues a replacement certificate determining that: (a) the following injuries caused by the motor accident are threshold injuries for the purposes of the Act: (i) cervical spine – soft tissue injury, and (ii) left shoulder – soft tissue injury; (b) the following injury caused by the motor accident is not a threshold injury for the purposes of the Act. (i) thoracic spine – annular tear in the thoracic disc between T6 and T7. A statement of the Review Panel’s reasons for the determination is attached to this certificate. |
STATEMENT OF REASONS
INTRODUCTION
On 24 October 2021, the claimant, Suzana Dragicevic, was involved in a motor accident when the vehicle in which she was travelling as a passenger, was rear-ended by a vehicle insured by NRMA.
As a result of the accident, the claimant claimed that she sustained injuries to her neck, mid- back and shoulders. She also claimed that she developed a psychological injury although that injury is not the subject of the dispute in this matter.
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.
On 25 January 2022, the insurer issued a decision that the claimant’s physical injuries caused by the accident, were threshold injuries for the purposes of the MAI Act. On 16 February 2022, following an internal review requested by the claimant, the insurer confirmed its original decision.
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.
Schedule 2, cl 2 of the MAI Act provides that various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is a threshold injury for the purposes of the Act”.[3]
[3] Schedule 2, cl (e) of the MAI Act.
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[4] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[4] Section 7.20 of the MAI Act.
THE MEDICAL ASSESSMENT UNDER REVIEW
The dispute was referred at first instance to Medical Assessor Thomas Rosenthal for assessment. The Medical Assessor issued a certificate dated 8 May 2024.
The injuries referred to the Medical Assessor for assessment were an injury to the cervical spine, an injury to the thoracic spine and an injury to the left shoulder.
The Medical Assessor noted the claimant had a significant pre-existing condition reported as fibromyalgia. Neck and back symptoms were apparently present prior to the accident and the claimant reported to the Medical Assessor that her neck pain and mid back pain were worse after the accident. She reported that she had developed symptoms in the left shoulder, which were not present prior to the accident.[5]
[5] Page 280 of the claimant’s bundle.
The Medical Assessor was of the opinion that the claimant’s pre-accident symptoms were most likely aggravated and increased from the accident,[6] and that the motor accident “possibly” caused a soft tissue injury to the cervical spine and “possibly” a soft tissue injury to the thoracic spine.[7]
[6] Page 285 of the claimant’s bundle.
[7] Page 285 of the claimant’s bundle.
The Medical Assessor noted that the claimant did not mention any left shoulder injury in her initial statement “two to three months after the accident” and subsequently, left shoulder symptoms were reported. He formed the view that on balance of probabilities, the accident likely caused a soft tissue injury to the left shoulder.
The Medical Assessor was the opinion that based on the mechanism of injury and the available evidence, the MRI findings of thoracic spine annular tear, disc protrusion at T6/7 and possible neuroma, are not related to the trauma of the accident.
The Medical Assessor stated that there was no evidence of any tear of any structure in the cervical spine as a result of the rear-end collision.
The Medical Assessor was of the opinion that the superior labrum anterior and posterior (SLAP) tear in the left shoulder found in MRI, is an incidental finding and unrelated to any trauma, such as the accident. That is because left shoulder symptoms had been present prior to the accident, there was no evidence of acute shoulder pain immediately after the accident and no left shoulder symptoms were recorded by Liverpool Hospital or by the claimant in her initial statement. [8]
[8] Page 285 of the claimant’s bundle.
The Medical Assessor concluded the injuries to the cervical spine, the thoracic spine and the left shoulder were soft tissue injuries and therefore were threshold injuries for the purposes of the Act.
THE REVIEW APPLICATION
On 31 May 2024, 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 to a review panel for review. and 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 Review Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission. On this occasion, the Review Panel is constituted by Medical Assessor Barnsley, Medical Assessor Gibson and Member Castagnet (the Panel).
Part 5 of the Personal Injury Commission Act 2020 (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.[9]
[9] 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.[10]
[10] 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.[11]
RELEVANT STATUTORY PROVISIONS, GUIDELINES AND LEGAL PRINCIPLES
[11] 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[12] of the Guidelines relevantly provides:
[12] Version 9.3 of the Guidelines 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.[13]
[13] Clause 5.9 of the Guidelines.
Causation of injury
Sections 5D and 5E of the Civil Liability Act2002 apply to the MAI Act.[14]
[14] 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 REVIEW PANEL
The parties filed the following materials:
(a) the claimant’s paginated and indexed bundle of documents comprising 366 pages (the claimant’s first bundle);
(b) the insurer’s paginated and indexed bundle of documents comprising 906 pages (the insurer’s bundle);
(c) the claimant’s first additional bundle (77 pages) comprising of the reports of Mr Grant Johnston, dated 17 July 2024 and 4 August 2024 (prepared in relation to the driver of the claimant’s vehicle, Slobodan Dragicevic);
(d) the claimant’s second additional bundle (81 pages) comprising of the report of Mr Grant Johnston dated 11 August 2024;
(e) the claimant’s third additional bundle (66 pages) comprising of the medical reports (relating to Mr Dragicevic’s injuries) from Dr M Guirgis dated 29 October 2022, 14 September 2023 and 26 March 2024, Dr B.Kuljic dated 28 May 2023, Dr J Bodel dated 3 May 2024, and clinical records of Southwest Neurology (also relating to Mr Dragicevic’s injuries), and
(f) the claimant’s further submissions dated 23 October 2024 (3 pages).
The Panel considered all the materials filed by the parties.
SUBMISSIONS
The claimant’s submissions
The claimant submitted that her left and right shoulders were asymptomatic at the time of the accident, in that her heavy cleaning work was unaffected by any preexisting conditions before the accident.
The claimant submitted that there is no evidence of any pre-existing conditions or injury in regard to the left shoulder and immediately after the accident, there was evidence of shoulder symptoms. The clinical records of Liverpool hospital recorded that there was “discomfort between scapulae.”
The claimant submitted that she did not have a SLAP tear in her left shoulder prior to the accident. The MRI of 8 April 2022, five months after the accident, showed a SLAP tear in the claimant’s left shoulder which is a tear in the claimant’s tendon. This has occurred against a background of the claimant having fibromyalgia and the absence of any symptomatic left shoulder conditions that prevented her from doing heavy manual labour as a cleaner prior to the accident.
The claimant submitted that in the pre-accident whole body bone scan referred to in Dr Rozario’s report of 6 April 2021, there was only evidence of "mild increased uptake in the AC joints, sternoclavicular joints and the left first MTP joint". The metatarsophalangeal (MTP) joint is not in the shoulder but is in the big toe. In regard to the increased uptake in the acromioclavicular (AC) and sternoclavicular joints, which shoulder was not specified. The superior labrum anterior and posterior areas which is actually the site of a SLAP tear, were not mentioned. In her report, Dr Rozario acknowledged that the claimant's pre-accident MRI of the cervical spine was "unremarkable".
The claimant submitted that the pre-accident whole body bone scan was consistent with the claimant's diagnosis of fibromyalgia and that the trauma of the subject accident is consistent with the development of a cartilage tear which was evident on the post-accident MRI of 8 April 2022.
In the circumstances and applying the egg-shell skull rule, the claimant submitted the accident was a more than a negligible contributing cause to the tendon tear and therefore a non-threshold injury. The claimant submitted that the test for causation is not “how did the injury develop” test but whether the accident is a more than negligible contributing cause to the injury.
The insurer’s submissions
The insurer submitted that there was evidence of left shoulder symptoms which were present prior to the accident. The whole body scan performed on 18 February 2021 showed a mild increase uptake in the AC joints, sternoclavicular joints and the left first MTP joint and this was in keeping with arthritis.
The insurer submitted that the Medical Assessor correctly noted that the claimant did not report any left shoulder symptoms at the time of assessment at Liverpool Hospital on the day of the accident. The Discharge Summary from the hospital did not report any acute injury to the left shoulder sustained in the accident.
The insurer submitted that the Medical Assessor noted that there were no acute changes evident in the MRI of the left shoulder dated 8 April 2022 and that there was evidence of degeneration changes.
The insurer noted that the Medical Assessor recorded that the MRI of the left shoulder also showed bursitis and a labral tear. The insurer noted however, that the Medical Assessor is entitled to form his own opinion on the scan based on his own experience and expertise and had demonstrated from a review of the medical reports that there was no evidence of a localised injury sustained in the left shoulder from the effects of the accident.
The insurer highlighted that in February 2021, the claimant was diagnosed by Dr Rozario with fibromyalgia on a background of a six to seven-year history of chronic pain in the cervical and lumbar regions.
THE EVIDENCE BEFORE THE REVIEW PANEL
The evidence before the Panel may be summarised as follows.
Pre-accident medical records
The clinical records of general practitioners (GP) Dr Jelena Vranjes and Dr Predrag Tomasevic of Health Check Family Medical Practice (the GP records) showed that the claimant complained of thoracic spine pain on 5 March 2020 and pain in multiple joints on 11 March 2020 and 7 December 2020.[15]
[15] Page 416 of the insurer’s bundle.
An X-ray of the thoracic spine performed on 6 March 2020 on a clinical history of localised pain at T7-T8 showed there was mild thoracic kyphosis with mild degenerative changes in the thoracic spine, no evidence of an acute compression fracture and no local abnormality. [16]
[16] Page 105 of the insurer’s bundle.
An X-ray and MRI of the cervical spine performed on 20 April 2020 for suspected radiculopathy, pressure and stiffness did not identify any significant abnormality in the cervical spine and no cause for the radicular symptoms had been demonstrated.[17]
[17] Page 104 of the insurer’s bundle.
On 24 April 2020, Dr Tomasevic referred the claimant for physiotherapy for pain and discomfort in the cervical spine and the mid back, noting that there were no specific injuries.[18]
[18] Page 447 of the insurer’s bundle.
The claimant was referred by Dr Vranjes to consultant rheumatologist, Dr Loretta Rozario, for management of her symptoms. In a report dated 9 February 2021, Dr Rozario stated that the claimant reported that she had “a six to seven year history of chronic pain in her cervical and lumbar spine which occasionally can be painful. She has trouble standing and getting out of bed... She has paraesthesia in her hands, especially in her fingers and occasionally in her legs.” [19]
[19] Page 140 of the insurer’s bundle.
On examination, Dr Rozario found mild stiffness in the cervical spinal muscles with discomfort on movement which were slightly restricted. The rest of the musculoskeletal examination was normal. Dr Rozario made a working diagnosis of fibromyalgia and recommended a further review with a bone scan and pathology.[20]
[20] Page 140 of the insurer’s bundle.
A whole body bone scan with Spect/CT performed on 18 February 2021 made the following findings:
“Mild increased uptake at the AC joints,[21] SC joints[22] and left first MTP[23] joint in keeping with arthritis. No other significant findings elsewhere”.[24]
[21] The acromioclavicular (AC) joint makes up part of the shoulder structure. It is the point at which the lateral end of the clavicle (collar bone) meets with the part of the scapula (shoulder blade) called the acromion process.
[22] The sternoclavicular (SC) joint is the link between the clavicle (collarbone) and the sternum (breastbone). The SC joint supports the shoulder and is the only joint that connects the arm to the body.
[23] The metatarsophalangeal joints (MTP joints) are the joints between the metatarsal bones of the foot and the proximal bones (proximal phalanges) of the toes.
[24] Page 140 of the insurer’s bundle.
Following a review of the claimant and the whole body bone scan on 6 April 2021, Dr Rozario reported to Dr Vranjes that there were no significant abnormalities but noted the mild increased uptake in the AC joints, SC joints and the left first MTP joint. Dr Rozario was of the opinion that the claimant’s symptoms were due to fibromyalgia. She recommended an exercise program and the prescription of 25mg of Endep.[25]
The claimant’s post-accident statement
[25] Page 170 of the insurer’s bundle.
In her application for personal injury benefits (claim form) dated 4 November 2021, the claimant described her injuries in the following terms:
“I have pain in the middle of my back and I have poor neck extension. Both my shoulders are also tender and experience pain.”[26]
[26] Page 17 of the insurer’s bundle.
Post-accident medical evidence
The clinical notes of Liverpool Hospital recorded that the claimant attended the emergency department for treatment on the day of the accident. It was recorded that no interpreter was required although it was also recorded that the claimant spoke “minimal English”.[27] It was noted that there was a pre-existing history of fibromyalgia.[28] The following observations were made:
[27] Page 713 of the insurer’s bundle.
[28] Page 712 of the insurer’s bundle.
“Was in a MVA with husband (has c-spine tenderness)
HOPC - s/t Husband, history by proxy
Was stopped at a red light
Car behind drove into them, no airbags deployed
Husband was able to apply the breaks (sic) so did not collide with car in front
Both were wear seat belts
Husband mentions having neck pain after the injury (seen in acute)
Patient denies neck pain
Describe mild discomfort between scapula - unsure where [sic] longstanding or not
No LOC
No dizziness or vomiting after
was shaking due to shock after (according to husband)
Remembers all events
No blurring of vision
No CP/SOB Denies headstrike
OE
Alert, minimal English but quick to try communicate
Seatbelt sign negative
Chest clear
Nil spinal tenderness
Abdomen SNT
Nil sternal tenderness
No pelvic tenderness
Gait normal and symmetrical
PEARL
No nystagmus
Neck rotation and flexion normal
Poor neck extension (chronic, since fibromyalgia diagnosis), able to extend but limited by fatigue
No hematoma/bruising noted
Impression
nil acute Injuries post-MVA”. [29]
[29] Pages 712-713 of the insurer’s bundle.
A CT of the cervical spine requested by Dr Vranjes and performed on 26 October 2021, concluded that there was no cervical spine fracture, no signs of a significant disc bulge/protrusion and no central canal or neural exit foraminal narrowing.[30]
[30] Page 513 of the insurer’s bundle.
In a Certificate of fitness prepared by Dr Vranjes on 27 October 2021 and issued on 4 November 2021, the following diagnosis was recorded:
“…headaches, pain in cervical spine, left and right shoulders, entire back, occasional paraesthesia left foot and toes, paraesthesia left upper limb is worse than paraesthesia right upper limb”.[31]
[31] Pages 25 and 753 of the insurer’s bundle.
In an Allied Health Recovery Request form dated 15 December 2021, physiotherapist, Vanessa Quach noted that the claimant reported constant neck pain, left shoulder pain and lower back pain[32] and intermittent left arm numbness, left leg numbness and right shoulder pain.[33]
[32] Page 135 of the insurer’s bundle.
[33] Page 136 of the insurer’s bundle.
The claimant was treated by neurologist and clinical neurophysiologist, Dr Adeniyi Borire. In his report dated 5 January 2022, Dr Borire stated that the claimant was referred to him on a history of chronic daily headaches which had developed since the accident. Dr Borire also recorded that the claimant had been experiencing aches and pains in the neck, bilateral shoulder girdles and lower back on a background of fibromyalgia prior to the accident.[34]
[34] Page 819 of the insurer’s bundle.
An MRI brain scan requested by Dr Borire on an indication of bilateral hand paraesthesia, migraines, generalised aches and pains and the motor accident, and performed on 14 January 2022, reported a normal study.[35]
[35] Page 774 of the insurer’s bundle.
Dr Borire believed that the headache was in keeping with chronic migraine likely to be a post-concussion syndrome caused by the whiplash injury during the accident. He believed that the generalised aches and pains were likely to be due to exacerbation of her longstanding fibromyalgia.[36]
[36] Page 819 of the insurer’s bundle.
The claimant was treated by orthopaedic surgeon, Dr Matthew Giblin. In a report dated 30 March 2022, Dr Giblin stated that since the accident, the claimant has been complaining primarily of neck pain and left shoulder pain, with pins and needles and pain in the left upper limb, intermittent right shoulder pain and intermittent low back pain.[37]
[37] Page 115 of the claimant’s bundle.
Dr Giblin referred to the claimant for an MRI of the left shoulder, an MRI of the thoracic spine and a bone scan.[38]
[38] Pages 115-116 of the insurer’s bundle.
The MRI of the cervicothoracic spine performed 7 April 2022 made the following findings:
“C2-3: No disc lesion.
C3-4: Minimal disc bulge and no neural impingement.
C4-5: Minimal posterior disc bulge. No cord nor nerve root compression.
C5-6: Once again there Is a minimal disc bulge and no neural impingement.
CS-7: No significant disc lesion.
C7-T1: No disc lesion or neural impingement. There is facet joint arthropathy.
There are tiny disc bulges at T 4-5 and T5-6 without significant neural impingement.
T6-7: There is a left paracentral annulus tear and disc protrusion and compression of the left hemicord.
T7-8: Minimal disc bulge and no neural impingement.
Further low-grade disc bulges at T10-11 and T11-12 without neural impingement.”[39]
[39] Page 122 of the claimant’s bundle.
The MRI of the left shoulder performed 7 April 2022 made the following findings:
“There is no AC joint arthropathy. There is no synovitis. Type 1 acromion process. There is an effusion within the subacromial bursa. The long head of biceps tendon is normally located and intact. There is an intact bicipitolabral complex. The rotator cable and biceps pulley are intact.
The subscapularis, supraspinatus, infraspinatus and teres minor tendons are intact. There is no tear nor tendonitis. There is no volume nor fatty atrophy of the cuff musculature and no denervation signal changes.
There is no paralabral cyst. The glenohumeral articular cartilage is preserved. There are no features of adhesive capsulitis.
Conclusion
·Subacromial subdeltoid bursal inflammation.
·Slap tear.”[40]
[40] Page 123 of the claimant’s bundle.
The whole body scan with Spect/CT of the cervical and thoracolumbar spine performed on 14 April 2022 concluded that the rib cage and shoulder joints were normal, the cervical, thoracic and lumbar spines were normal and there was an increased activity in the right greater trochanter consistent with bursitis/enthesitis.[41]
[41] Page 119 of the claimant’s bundle.
On review of the claimant and the radiology results on 27 April 2022, Dr Giblin noted that the MRI of the thoracic spine showed a left sided paracentral annular tear and disc protrusion compressing the left hemi-cord at T6/7 and at the same level, there was a 21mm ovoid paravertebral soft tissue mass, which required further investigation. Dr Giblin noted that the MRI of the left shoulder confirmed subacromial bursitis and a SLAP tear. He recommended a repeat MRI of the thoracic spine with Gadolinium.[42]
[42] Page 112 of the claimant’s bundle.
An MRI of the thoracic spine performed on 1 May 2022 and reported on 2 May 2022 indicated a “solid intercostal mass at the T6-7 level on the right”’[43] On review of the claimant and the MRI result on 23 May 2022, Dr Giblin believed that the intercostal mass was most likely a neuroma which just needed observing for the time being.[44]
[43] Page 117 of the claimant’s bundle.
[44] Page 114 of the claimant’s bundle.
On 9 October 2022 an MRI of the cervical spine and left brachial plexus requested by neurologist, Professor Steve Vucic, made following conclusions:
“No cause for radiculopathy;
Suggestion of thickening with increased enhancement of the cords of the left brachial plexus which could reflect a brachial neuritis. No mass lesion impinging on the plexus and no findings to suggest perineural tumor spread.
Subtle oedema involving the rotator cuff musculature which could reflect denervation changes (? Parsonage Turner Syndrome).”[45]
[45] Page 121 of the claimant’s bundle
Medico-legal evidence
The claimant was assessed by occupational physician, Dr Robin Mitchell on 10 August 2022. In his report dated 6 September 2022, Dr Mitchell stated that the claimant reported that with the accident, she had exacerbated pre-existing neck and spinal pain, anxiety and depression and that she had developed pain in both shoulders.[46]
[46] Page 776 of the insurer’s bundle.
As to diagnosis, Dr Mitchell stated that the claimant ongoing pain in the neck and thoracolumbar back, as well as the left shoulder and these are of all of “an apparent soft tissue nature” following the accident on 24 October 2021. He was of the opinion that there was no objective clinical evidence of any abnormality in the neck or thoracolumbar back and the radiological studies were normal apart from the detection of an unrelated neuroma in the thoracic region.[47]
[47] Page 781 of the insurer’s bundle.
Although Dr Mitchell acknowledged the left shoulder was found to have a degree of bursitis and a SLAP tear, he did not indicate what caused these conditions.[48] However, he went on to assess the left shoulder condition as relevant for permanent impairment caused by the motor accident and attributed a whole person impairment of 1% for an injury to the left shoulder.[49]
[48] Page 781 of the insurer’s bundle.
[49] Page 786 of the insurer’s bundle.
On 27 April 2023, the claimant was assessed by orthopaedic surgeon, Dr Medhat Guirgis. In his report of the same date, Dr Guirgis noted that the claimant complained of neck pain and stiffness with radiation to the left shoulder and the top of the left shoulder blade, pain and stiffness and loss of strength in the left shoulder, mid-back pain and stiffness, occipital headaches and attacks of left C6/7 arm radiation ranging in severity.[50]
[50] Page 139 of the claimant’s first bundle.
Dr Guirgis was of the opinion that the motor accident caused a post-traumatic mechanical derangement of the cervical and thoracic spine, post-traumatic symptoms of rotator cuff syndrome in the left shoulder caused by contusion of the articular surfaces and spraining of the supporting capsular and ligamentous structures, an injury to the occipital nerves causing post-traumatic occipital neuralgia and headaches.[51]
[51] Pages 141-142 of the claimant’s first bundle.
In regard to the injury to the left shoulder, Dr Guirgis noted there was MRI evidence of a SLAP tear between 11 and 10 associated with fluid at the chondrolabral interface and subacromial/subdeltoid bursitis.[52]
[52] Pages 141-142 of the claimant’s first bundle.
In regard to the injury to the thoracic spine, Dr Guirgis noted that there was MRI evidence of disc bulging at T4-5, T5-6, T7-8, T10-11 and T11-12 levels with no evidence of neural compression. He believed these changes would render the spine more vulnerable to the effect of traumatic stress generated by the motor accident. He noted that there was MRI evidence at the T6-7 level, of a left centro-oblique posterior annular tear associated with disc protrusion. He believed the discovery of the right paravertebral neurofibroma at the T5-7 level was incidental and of no clinical significance at the current stage and concurred with the opinion that it should be observed and that this should be done every year to ensure that there is no increase in size.[53]
[53] Page 142 of the claimant’s first bundle.
Dr Guirgis was of the opinion that the SLAP tear in the left shoulder and the injury to the occipital nerves were not threshold injuries.[54]
BIOMEDICAL ENGINEERING REPORTS
[54] Pages 144-145 of the claimant’s first bundle.
Dr Andrew McIntosh
The Panel notes the report of adjunct associate professor of biomechanics and ergonomics, Dr Andrew McIntosh dated 5 April 2022 and the report of consulting engineer, Mr Grant Johnston dated 11 August 2024 respectively.
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.[55]
[55] cf El-Mohamad v Celenk [2017] NSWCA 242 at [16].
Mr Johnston noted that there were two contradictory statements from the driver of the insured vehicle as to the approach speed of the accident and that the primary point of impact in the crash was on the tow coupling of the claimant’s vehicle.[56] Due to the bulbar to towbar nature of the impact, Mr Johnston concluded that the injury suffered by the claimant is plausible given the increase in the magnitude of forces acting upon the claimant even if the crash occurred at a low speed.[57]
[56] Page 17 of the claimant’s second additional bundle.
[57] Pages 44-45 of the claimant’s second additional bundle.
The Panel notes the following limitations in relation to Dr McIntosh’s report:
· it is based on a closing speed which is inconsistent with witness statements;
· it is based on a change of velocity that is estimated on the ‘observed and described vehicle damage’.[58] This does not take into account the impact on the tow coupling of the claimant’s vehicle, which changes the magnitude of forces of the accident, and[59]
· Dr McIntosh is not able to comment on how the claimant was positioned as the passenger at the time of the collision.
[58] Page 850 of the insurer’s bundle.
[59] Pages 39-40 of the second additional bundle.
The Panel finds no assistance from Dr McIntosh’s report in regard to the mechanism of injury in this matter.
RE-EXAMINATION
On 6 December 2024, the claimant was re-examined at the rooms of Medical Assessor Gibson in St Leonards. She was accompanied by her daughter, who remained in the waiting room. Medical Assessor Barnsley, Medical Assessor Gibson and an interpreter were present for the duration of the re-examination.
Pre- accident medical history
The claimant was asked about any prior symptoms affecting either her neck or her back. She agreed that rheumatologist, Dr Loretta Rozario had diagnosed fibromyalgia some time prior to the motor accident, with some neck and back complaints.
The claimant denied having had any prior problems with her left shoulder. It was noted by the Medical Assessors of the Panel that the claimant was referred to Dr Rozario with complaint of “shoulders pain”. The claimant could not recall having any pain in the shoulders prior to the accident. She denied having had any sensory symptoms in the arms and legs, such as pins and needles.
Prior to the motor accident she had for a period taken Celebrex, Panadol Osteo and used Voltaren cream.
The motor accident
The claimant was a passenger in a stationary car when it was rear ended. She remembered immediately after the accident being "in shock." She recalled having been thrown forward and back with the impact and noticing her upper back was sore. When asked whether she had been holding onto anything at the time of impact, she responded that she had not.
She was unable to recall her body making any direct impact with the inside the vehicle.
Police attended the scene of the accident. An ambulance was called but, in the meantime, the claimant’s children arrived and drove her to Liverpool Hospital.
Symptoms after the accident
When asked how she was when she was at the hospital, the claimant said that she could not recall any specific pains, but after a few hours, she had felt pain in her neck, back and left shoulder. The Medical Assessors of the Panel advised her that the hospital records had only indicated pain being reported between her shoulder blades. She responded that she was in "real shock" at the time and did not want to be touched or have any X-rays performed.
She said that after the accident "everything changed", both psychologically and physically. There were headaches, neck stiffness (mainly left-sided and occasionally on the right) and her symptoms have been fairly constant ever since the accident. There was persisting pain over her left shoulder, which she said, has been constant since the accident. She could not identify any particular factors that made the pain worse. She added that there is sometimes some clicking with movements of the left shoulder and pain related stiffness. When asked, she could not recall noticing any swelling about the left shoulder.
When asked about the upper back pain, the claimant indicated the T8 vertebral region as the site of pain.
The claimant said there were intermittent pins and needles in the tips of the fingers of her left hand, all fingers being affected intermittently. She said she cannot lift her arm because of the pain.
Other injuries or medical conditions since the accident
Since the accident, the claimant has been diagnosed with motor neurone disease by neurologist, Professor Vucic. She agreed that this has produced weakness in her arms and legs.
The claimant denied having had any other injuries or medical or surgical issues since the accident.
Current treatment
The claimant currently takes Celebrex, Panadol Osteo, Endep 75mg, Voltaren Gel and a medication prescribed by her neurologist as a syrup for the motor neurone disease.
She said that prior the accident she had only been taking Panadol Osteo and she could not recall any other specific treatment prescribed by Dr Rozario.
Physical examination
The claimant mobilised with the aid of a walker. She is left hand dominant.
On examination of the cervical spine, there was no significant tenderness. Initially there was minimal neck flexion and extension. However, it was noted as the assessment progressed that she was able to move her head more than was evident on initial physical examination. The Medical Assessors of the Panel asked her about this, and she responded it was due to the pain.
On formal assessment, there was a third normal flexion and extension, lateral flexion was to half normal bilaterally, rotation was 75% to left, 50% to right. There was no muscle guarding or spasm.
On examination of the thoracic spine, there was no significant tenderness. She had 50% rotation bilaterally, flexion was 50% normal range and extension 30% normal range. There was no asymmetry, muscle spasm or guarding. Light touch was intact over the thoracic dermatomes.
On examination of the upper limbs, circumferential measurements taken 10cm above the lateral epicondyle, on the right were 28cm, and on the left 27cm. And the forearms measured 10cm below the lateral epicondyle, were 23cm on the right and 23cm on the left. Spurling's testing was negative. There was interosseous muscle wasting bilaterally, but no fasciculation. There was global weakness in the left upper limb. Muscle power at the wrist was 4/5 on the right and 3/5 on the left. At the elbows flexion 4/5 on the right, 2/5 on the left and on extension 4/5 on the right and 3/5 on the left. There was some giving way weakness. There was patchy, subjective sensory variation in the left arm (i.e. testing light touch over the left arm was reported as feeling different to the right) that did not conform to a specific dermatomal distribution.
On testing the upper limb reflexes, 2+ on the right, 1+ on the left with spreading of reflexes bilaterally. Specifically, she had intact biceps, triceps supinator and finger jerks.
On examination of both shoulders, there was reduced bulk of the left supraspinatus. Active shoulder movements were as follows:
Shoulder Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
60 °
20 °
Extension
50 °
30 °
Internal Rotation
90 °
80 °
External Rotation
60 °
10 °
Abduction
50 °
30 °
Adduction
30 °
10 °
CAUSATION AND REASONS
The cervical spine
On examination by the Medical Assessors of the Panel, there were no signs of radiculopathy in the upper limbs to the cervical spine. There is no medical evidence of any radiculopathy recorded after the accident and before the examination by Medical Assessors of the Panel. The Panel accepts that the claimant sustained an injury to the cervical spine caused by the motor accident which is a soft tissue injury. This is a threshold injury.
The thoracic spine
The evidence shows early reporting of mid thoracic pain immediately after the accident. The claimant presented to hospital complaining of pain between the scapulae. This corresponds to the mid thoracic level. Within days of the accident on 27 October 2021, the claimant complained about pain in her ‘entire back’ to her GP. In her claim form on 4 November 2021, the claimant reported “pain in the middle of my back”.
An MRI of the thoracic spine performed on 8 April 2022 found an annular tear in the thoracic disc between T6 and T7.
The Medical Assessors of the Panel note the uncertainty as to the forces applied to the claimant, as evidenced by the different conclusions of Mr Johnston and Mr McIntosh. However, the Medical Assessors of the Panel consider that on balance, the impact could have caused an annular tear in the thoracic spine.
The Panel accepts, on the balance of probabilities, the annular tear in the thoracic spine was caused by the motor accident. This is not a threshold injury.
The left shoulder
An MRI performed on 7 April 2022 confirmed a SLAP tear in the left shoulder.
Labral tears such as SLAP tears can be degenerative or traumatic in aetiology. Traumatic tears of the labrum result from significant forces being applied to the humerus with respect to the glenoid socket, damaging the labrum which restrains the humeral head within the socket.
There is no evidence of any direct impact to either shoulder in the motor accident. There had been no relative movement between the arm and the body at the point of impact.
In the absence of the arm being fixed or restrained relative to the thoracic movement (noting that the claimant was not holding anything at the time of the accident) the Medical Assessors of the Panel consider that the rear end impact would not have caused a labral tear. The Panel concludes that the motor accident did not cause the labral tear.
The Medical Assessors of the Panel are of the opinion that the claimant sustained soft tissue injury to her left shoulder in the accident. This is a 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 re-examination findings and conclusions of the Medical Assessors of the Panel.
The Panel finds the injuries to the cervical spine and the left shoulder caused by the motor accident, are threshold injuries for the purposes of the MAI Act.
The Panel finds that the injury to the thoracic spine - annular tear in the thoracic disc between T6 and T7, is not a threshold injury for the purposes of the MAI Act.
CONCLUSION
Accordingly, for these reasons, the Panel revokes the certificate of Medical Assessor Thomas Rosenthal dated 8 May 2024 and issues a replacement certificate which is found at the commencement of these reasons.
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