Gibbin v AAI Ltd t/as GIO

DETERMINATION OF REVIEW PANEL
CITATION:	Gibbin v AAI Ltd t/as GIO [2025] NSWPICMP 523
CLAIMANT:	Kathleen Gibbin
INSURER:	AAI Limited t/as GIO
REVIEW PANEL
MEMBER:	Terence O’Riain
MEDICAL ASSESSOR:	Ian Cameron
MEDICAL ASSESSOR:	Les Barnsley
DATE OF DECISION:	17 July 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Injuries Act 2017; review of Medical Assessment Certificate (MAC); finding the accident caused threshold injuries; assessment by the Review Panel of whether the claimant suffered a threshold injury as cervical spine injury, left shoulder injury and thoracic spine; radicular symptoms after accident but no verifiable radiculopathy; left shoulder injuries present after accident but presented as aggravation of degenerative conditions; claimant’s left shoulder treated with appropriate manipulation under anaesthetic (MUA); scans after MUA showed full thickness rotator cuff tears; submissions sought from parties on this point before re-examination; no objective verifiable radiculopathy in line with Motor Accident Guidelines; credible claimant; Review Panel considered whether MUA caused consequential complete or partial rupture of tendons, ligaments, menisci or cartilage; no history of cervical or shoulder conditions before accident; collision capable of causing injuries; consistent symptoms; Review Panel considered CLA, Briggs No 2 on causation and Mahony v J Kruschich (Demolitions) Pty Ltd on consequential injury; Held – Referred left shoulder injury is not a threshold injury; Review Panel was satisfied that the post-accident treatment caused a consequential injury; MAC revoked.
DETERMINATIONS MADE:	Review Panel assessment of threshold injury This certificate is issued under s 7.23(1) of the Motor Accident Injuries Act 2017 (the MAI Act) 1. The Review Panel revokes Medical Assessor Rosenthal’s further certificate dated 17 August 2024. 2. The Review Panel find the accident caused the following injuries: · cervical spine – aggravation of underlying cervical spondylosis, and · left shoulder – rotator cuff tear. 3. The shoulder injury is a non-threshold injury under the s 1.6(2) definition of the MAI Act.

REASONS

Background

Kathleen Gibbin (the claimant) was injured in an accident on 21 March 2019. She was the driver and wearing a seat belt driving her family to an event.
The insured vehicle hit her in the rear as she was driving on a highway at approximately 80kmph. She was forced forward against the seat belt but did not recall hitting anything within the car with her arms or head.
The insurer is responsible for loss arising from the claimant’s injuries from this accident under the Motor Accidents Injuries Act 2017 (MAI Act)
The insurer and the claimant are in a dispute about whether the claimant’s injuries caused by this accident are threshold injuries (formerly legislated as minor injuries) as defined in s1.6 of the MAI Act.
The claimant applied to the Personal Injury Commission (the Commission) to resolve this dispute.
The Commission referred the following injuries to a Medical Assessor to resolve:
·        cervical spine;
·        thoracic spine, and
·        left shoulder.

There were earlier assessments addressing s 1.6 of the MAI Act and eventually Medical Assessor Rosenthal conducted a further medical assessment and produced a certificate dated 17 August 2024.
Medical Assessor Rosenthal examined the claimant and assessed that the accident caused soft tissue injuries to the cervical spine and left shoulder and therefore these were threshold injuries for the purposes of the MAI Act.
He also decided that the accident did not injure the claimant’s thoracic spine.
The claimant applied to the Commission’s President to refer Medical Assessor Rosenthal’s certificate to a Review Panel (this Panel) after the parties were issued with the original certificate.
On 9 October 2024, the President’s delegate after considering the particulars set out in the application referred the medical assessment to a Panel as she was satisfied there was reasonable cause to suspect the medical assessment was incorrect in a material respect.
The President of the Commission constituted this Review Panel (the Panel) to review Medical Assessor Rosenthal’s further assessment certificate (the Review).

Review

On 13 January 2025, the Panel met via MS Teams.
The Panel considered all aspects of the assessment under review.
The Panel considered the question of when the claimant had demonstrated radiculopathy in the past in accordance with Part 5.3 to 5.7 inclusive of the Guidelines and applying the decision in David v Allianz Australia Insurance Ltd [2021] NSWPICMP 227.
The Panel also discussed the apparent delay between the left shoulder complaints after the accident and diagnoses of a delamination of that shoulder five months later, and how the claimant’s left shoulder responded to manipulation under anaesthetic (MUA). This treatment was to address “frozen shoulder” which the preponderance of the available medical evidence agreed was caused by the accident.
This was referred to in the Panel’s report and directions dated 15 January 2025 seeking further submissions, although it did not explicitly refer to the Panel’s discussion that there was a possibility that the MUA caused the rotator cuff tear is a consequential injury, in the context of the claimant’s left shoulder degeneration being asymptomatic before the accident, and the condition progressing from traumatic adhesive capsulitis to a full thickness rotator cuff tear after the accident. This had been demonstrated in sequential MRI scans.
Medical Assessor Barnsley undertook to re-examine the claimant on the Panel’s behalf on 4 April 2025 at the Commission’s medical suites.

Legislative framework

At the time the relevant dispute became apparent s 1.6 of the MAI Act defined a threshold injury to include a “soft tissue injury” or a “threshold 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.”
Section 1.6 provides regulations may be made to exclude or include a specified injury from being a soft tissue injury or a threshold psychological or psychiatric injury. Part 1, clause 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.
Part 5 of the Motor Accidents Guidelines (the Guidelines)[1] are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether the motor accident caused a threshold injury for the purposes of the MAI Act.
[1]Guidelines version 9.3 commenced on 6 December 2024.
In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4 Diagnostic imaging is not considered necessary to assess the 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 MAI Act should be based on the evidence available and include all relevant findings derived from:
a comprehensive accurate history, including pre-accident history and pre-existing conditions
a review of all relevant records available at the assessment
a comprehensive description of the injured person’s current symptoms
a careful and thorough physical and/or psychological examination
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, which is verified under these clauses will not be classified as a threshold injury.
Radicular symptoms may be present but will not be verified unless two or more signs present during an examination which comply with these Guidelines. Note that non-verified radicular symptoms may support a finding that changes are causally linked to the relevant accident.

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 clause 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)
(e) 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.”
In Momand v Allianz Australia Insurance Limited [2023] NSWSC 1014 at [69] Harrison AsJ stated:
“It is my view that the Assessor misdirected himself when he omitted to consider the entirety of the findings of the MRI scan to the plaintiff’s cervical spine, namely, an assessment of the individual disc levels throughout the cervical spine is notable for broad-based disc protrusion at C5/C6. This indents the ventral thecal sac and is not associated with central canal compromise. Had he fully appreciated the report of the MRI scan to the plaintiff’s cervical spine, he would have appreciated that there was a disc protrusion at C5/C6 and this indents the ventral sac. The ventral sac is a membranous sheath or tube of dura mater surrounding the spinal cord. A disc is comprised of cartilaginous material. This injury is not one that falls within the definition of a minor injury. In any event, the assessor did explain the relationship between a disc protrusion, the protrusion of disc material by reason of the partial or complete rupture of the cartilaginous tissue comprising it, indentation of the thecal sac and the definition of minor injury, were injury to cartilage, which is what a disc is, is not a minor injury by reason of the statutory definition. This ground of review was raised before the delegate.”
Part 5 of the Personal Injury Commission Act 2020 (the 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 merit reviewer or a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the 2020 Act. A Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.
The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to the injuries sustained in the motor accident and whether they were threshold or satisfying the threshold as defined under the MAI Act.
The Review Panel, comprised of two specialist medical practitioners and a legal member, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[2]and Insurance Australia Ltd v Marsh[3].
[2] insurance Australia Group Ltd t/as NRMA Insurance v Keen [2021] NSWCA 287
[3] [2022] NSWCA 31
The Panel adopts the reasoning in David that radiculopathy can be present at any time to satisfy the concept that the injury is not threshold for the purposes of the MAI Act.
We also adopt the reasoning in Lynch v AAI Ltd[4]that the claimant bears the onus of proof in establishing any injury is not a threshold injury for the purposes of the MAI Act.
[4] [2022] NSWPICMP 6
The rules of evidence do not apply to this Review. The Panel may look into any matter relevant to the issues in dispute in such a manner, subject to providing procedural fairness to all the parties.
It is necessary for the Panel to consider whether the accident caused or contributed to the diagnosed condition: Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372 at [75]. The accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible: Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 at [50]. Further, the provisions of the Civil Liability Act 2002 apply, in particular s 5D and s 5E.
However, whilst Chapter 5 of the Guidelines apply to the determination of whether an injury is a threshold injury, it is unclear and unlikely the provisions in Part 6 of the Guidelines pertaining to the meaning of causation of injury and impairment apply to assessing causation in threshold injury disputes. This is because Part 6 is specified as applying only to the assessment of Permanent Impairment.
In order to promote consistency and harmony in the determination of medical assessment matters, the Panel proposes adopting the approach to causation set out in clauses 6.6 and 6.7 of the Guidelines.
The Guidelines state as follows with respect to causation of injury:
“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 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 the Personal Injury Commission) 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 judgement.
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 accident. The 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.”

ASSESSMENT UNDER REVIEW

Medical Assessor Christopher Allen initially assessed the claimant for the purposes of s 1.6 of the MAI Act and produced a certificate dated 5 March 2020. He found none of the referred injuries were caused by the accident and that the claimant only suffered exacerbation of long-standing cervical spondylosis.
The claimant applied for review of that decision, and it was referred to a Medical Review Panel. That Panel issued its certificate on 15 July 2020 finding the accident caused left shoulder and cervical spine soft tissue injuries.
The claimant was later able to satisfy the Presidential delegate that her condition related to the accident had deteriorated, and it was referred for further assessment under the relevant section to Medical Assessor Rosenthal.
The deterioration was said to be the existence of cervical spine radiculopathy and left shoulder deterioration resulting in non-threshold conditions. Medical Assessor Rosenthal assessed the claimant. There was a further application for review of that assessment or a finding that the assessment was incomplete. Principle Member Harris directed that the assessment was incomplete, and it was referred again to Medical Assessor Rosenthal, which resulted in the certificate dated 17 August 2024.
Medical Assessor Rosenthal referred to the claimant’s treating neurosurgeon Dr Marc Coughlan clinical notes up to 22 January 2024 and a left shoulder MRI scan dated 21 February 2024.
The claimant described not being able to carry out household chores or play golf since the accident due to her sore neck and left shoulder.
Medical Assessor Rosenthal determined the cervical spinal injury was a soft tissue injury. He noted the degenerative changes at that point, which may have been aggravated resulting in radicular symptoms, but these were not present when he examined her.
He considered Dr Coughlan’s findings referring to the claimant displaying radiculopathy in his report dated 7 November 2023. Dr Coughlan notes radicular symptoms appearing singularly in various examinations but not as two or more in line with clause 5.8 Guidelines.
He accepted the nexus between the accident and the left shoulder injury initially determined as soft tissue.
The claimant developed adhesive capsulitis in the left shoulder which her treating specialist managed. Medical Assessor Allen assessed similar restrictions in the left shoulder active range of movement (AROM) in 2020. He noted evidence on the latest MRI that she has a full thickness rotator cuff tear. This was distinct from the initial 2019 MRI which reported a nerves delamination or minor tear.
In his view it was uncontroversial that the accident injured the left shoulder. The adhesive capsulitis was likely due to minor shoulder trauma. Medical Assessor Rosenthal considered the rotator cuff tear was a degenerative condition that occurred and extended due to age-related degeneration and not related to any trauma caused by the accident.
The Medical Assessor decided the thoracic spine injury had resolved.

Documentation

The Panel considered the documentation in the claimant’s and insurer’s bundles, including past assessments, the claimant’s treating doctors evidence, early medico legal reports, and MRI scans.

SUBMISSIONS

Claimant’s submissions

The parties have submitted various submissions. The Panel has summarised the relevant aspects. The parties did not provide further submissions as requested in the Panel’s report dated 15 January 2025.
The DRS Review Panel certificate dated 15 July 2020 findings are referred to in respect of the cervical spine injuries and left shoulder.
In respect of the cervical spine, the DRS Review Panel found there had been no Guidelines verified radiculopathy events.There were relatively contemporaneous left shoulder complaints, but the DRS Review Panel did not find the the accident caused the acute tendon rupture subsequently found.

Cervical MRI scans dated 18 December 2019 found changes at C5-C6 level causing narrowing. There were also changes at C6-C7 levels causing narrowing as well as thecal sac indentation.
Dr Coughlan arranged a cervical bone scan on 2 May 2022 confirming multiple facet arthropathy. His report dated 18 November 2022 states that when he examined the claimant on 29 April and 25 June 2022 he found radiculopathy, which could meet the requirements of clause 5.8 of the Guidelines.
A further cervical spine MRI on 31 August 2023 revealed further changes at the levels mentioned above. The claimant submitted this supported cervical spine deterioration. Dr Coughlan provided a report dated 7 November 2023 supporting that submission, as well as a report of cervical radiculopathy. In particular, that there was numbness and muscle weakness.
The claimant relied on Dr Coughlan’s examination of the claimant on 6 October 2023 as conforming with the Guidelines’ requirements. Dr Bodel examined the claimant via an audiovisual link, which meant he could not perform the examination in compliance with the Guidelines’ requirements.
The claimant submitted these findings supported a cervical spinal nerve root injury manifesting in neurological signs in accordance with Part 1, clause 4 of the MAI Regulation and the finding of verifiable radiculopathy.
The claimant also submitted that a comparison between left shoulder MRI scans dated 9 August 2019 and 23 November 2020 supports a finding that the accident caused a significant deterioration in the claimant’s condition.
Treating orthopaedic surgeon Greg Finch observed a marked decrease in AROM due to the claimant’s frozen shoulder. He opined the accident caused this as the claimant’s left shoulder was asymptomatic for five years before the accident.
Independent medical examiner (IME) Dr James Bodel opined in his report dated18 January 2022 that the accident caused the left shoulder rotator cuff changes. He referred to a “new 8 x 15 mm full-thickness deliminating tear”, when he referred to a comparison of the scans.
The claimant’s application for review submissions referred to an updated report from Dr Coughlan dated 6 September 2024, which confirmed that his examination had anatomically localised muscle weakness and numbness at C6-C7.
Further, Medical Assessor Rosenthal misapprehended that the claimant’s muscle weakness was not localised to an appropriate spinal nerve root distribution, despite Dr Coughlan’s findings.
In respect to the left shoulder, the claimant seeks a review on the basis that Medical Assessor Rosenthal had not explained his reasons for attributing the rotator cuff tear to a degenerative condition instead of accident related trauma. He is alleged to have applied the wrong test because he did not consider whether the accident could have or contributed nto the change.

Insurer’s submissions

The insurer submits that the claimed injuries are threshold injuries in accordance with the MAI Act.
The insurer submits the evidence does not support the claimant sustaining an injury in the accident that would fall outside the definition of a soft tissue injury.
The insurer’s initial submissions on what was known as “minor injury” were contained in the insurer’s internal review reasons dated 24 October 2019.
The insurer relies on the claimant’s general practitioner (GP) referring her to see an orthopaedic surgeon, Dr Robert Burness in a letter dated 16 June 2019. The GP referred to progressively worsening left shoulder pain and reduced AROM all directions.
The insurer denied funding for this referral on 10 July 2019, because initial scans did not find any shoulder pathology.
Dr Robert Burness wrote a report dated 29 July 2019 confirming that within three days of the accident the claimant’s left arm was frozen, which he considered could be superimposed as a cuff tear.
Occupational physician Dr Han Tai reported on 15 August 2019 that it was likely that the claimant’s injury was traumatic adhesive capsulitis. An MRI scan of the left shoulder was reported on 26 August 2019 as depicting capsular oedema in keeping with adhesive capsulitis. There was tendinopathy supraspinatus with bursitis and severe acromioclavicular joint degenerative arthrosis.
The insurer’s amended denial for benefits after 26 weeks on 10 September 2019 relied on the finding that the claimant’s condition was “adhesive capsulitis with no tear or fracture” to justify a “minor” classification. The claimant referred to MRI reports from 2019 that the claimant’s left shoulder had a minor delamination of the central tendon to dispute the insurer’s decision. The claimant also relied on the prospect of shoulder surgery causing a scar which would rule the claimant’s injuries related to the accident out as minor.
Dr Burness reported on 19 September 2019 that the claimant was willing to undergo MUA to treat her frozen shoulder. He also referred to the claimant’s shoulder being asymptomatic before the accident. Dr Burness repeated his recommendation for MUA in a further letter dated 8 October 2019.
On 10 October 2019 the insurer’s Claims Team declined to fund this procedure, because the injury mechanism was not consistent with the diagnosed pathology and because the MUA was not justified as the symptoms would naturally reduce over time. However, it was confirmed soon after that the claimant’s left shoulder condition had plateaued and was not improving.
In further submissions dated 10 January 2024 insurer submitted relevantly that the insurer preferred relying on Merhi v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 316 (Merhi), which purported to supplant the relevant Panel’s finding in David which asserts that an examination which establishes the existence of verifiable radiculopathy and complies with the Guidelines is sufficient to place an accident caused injury outside the definition of “threshold injury”.
Merhi reconsidered and deemed David ‘misplaced’, and that it could only be a matter for a Commission Medical Assessor or Review Panel to establish radiculopathy exists. The insurer asserted that this interpretation complies with the legislative intention to limit the recovery of substantial damages to cases where there is serious and permanent impairment.
If the Panel would not follow the Merhi reasoning, the insurer submits Dr Coughlan’s September 2024 report ought to be afforded limited weight because it was not based on any recent examination, but rather, his recollection of his clinical examination of the claimant as far back as October 2023 and responding to the claimant’s solicitors leading question.
In regard to Dr Coughlan’s report of 7 November 2023, which was before Medical Assessor Rosenthal, the insurer notes the Medical Assessor expressed the view that Dr Coughlan evidently found numbness in the C6 and C7 dermatomes as well as muscle weakness which was not anatomically localised to an appropriate nerve root as required under the Guidelines. This was not sufficient to establish verified radiculopathy.
In respect to the left shoulder insurer submitted that Medical Assessor Rosenthal’s reasoning was explicit because:
(a)    immediately after the subject accident, the claimant noticed she had a sore neck and when she presented to her local GP, she complained of neck and left arm pain . She did not report any immediate concerns with her left shoulder.
(b)    The claimant reported a slow deterioration in her shoulder symptoms over time.
(c)    ‘An initial left shoulder ultrasound showed no definite rotator cuff tears’.
(d)    ‘The first MRI scan of the left shoulder on 22 August 2019 showed AC joint degenerative changes, a thickened oedematous glenohumeral ligament suspicious of adhesive capsulitis and a minor delamination of the central tendon with no large volume tear detected’.
The DRS Review Panel reported in July 2020 that:
“…the left shoulder partial rupture delamination of central tendon was a pre-existing asymptomatic degenerative condition not caused by trauma from the accident. They determined that immediate symptoms of a traumatic tear would have presented with acute pain immediately after the accident which was not recorded by the general practitioner”.

Clinical examination

The claimant attended the Commission rooms in Sydney on 4 April 2025. Medical Assessor Barnsley examined the claimant in the presence of a chaperone.
Medical Assessor Barnsley explained to the claimant at the outset the reason for the examination. He also explained that the examination did not involve the same confidentiality as a routine medical consultation, that he would not be involved in any way in Mrs Gibbin’s treatment. Medical Assessor Barnsley frankly disclosed the nature of the questions and examination required.
The Medical Assessor obtained a history that at the time of the accident the claimant was employed as an assistant in nursing at a nursing home in Bundaberg. She also did some casual administration work.
She had the background medical problems of haemochromatosis requiring regular venesection. She also had elevated cholesterol and was on regular medications for this. She has a distant history of having left thoracic outlet syndrome and required decompressive surgery. There were no sequelae.
She specifically denied any problems with her neck or shoulders before the accident.
On 21 March 2019 she was involved in in the subject accident. She was driving a Holden Commodore. She was wearing a seat belt. She was driving on a highway at approximately 80kmph when she was hit from behind by another vehicle. She recalls being forced forward against the seat belt but does not recall hitting anything within the car with her arms or head. Both cars were drivable after the accident.
She drove on and stopped that night at a hotel. She was first aware of pain in the left upper arm that evening. This was approximately six hours after the accident. She was also aware of some neck stiffness at the crook of the neck and had some numbness in the first third digits of the left hand.
She first saw her local doctor four days later. This was on account of being unable to get an earlier appointment. She was due to have a venesection that visit. It was also noted that there was no mention of the tingling she described in the left hand in her GP notes. However, power in those body parts was assessed at several GP visits after the accident. Mrs Gibbin was unsure why these symptoms were not recorded but noted that her shoulder was the major problem.
Medical Assessor Barnsley discussed the lack of any notes concerning her accident at the GP consultation on 25 March 2019 with Mrs Gibbin. She explained that the main reason for that visit was venesection, and her GP only saw her briefly to help place the cannula.
She recalls being told that she had a whiplash disorder and was started on physiotherapy. She continued with physiotherapy between March and November.
She noticed increasing pain with lots of movement in the left arm. Her GP referred her to see Dr Burness, an orthopaedic surgeon in Queensland. The specialist arranged a left shoulder MRI which was performed on 9 August 2019. This scan demonstrated capsular oedema, a thickened glenohumeral ligament and these findings were thought to be in keeping with adhesive capsulitis. There was also noted to be a minor delamination of the central tendon. On the basis of the diagnosis of frozen shoulder she proceeded to a manipulation under anaesthetic on 15 November 2019. Unfortunately, this made little difference to her symptoms.
Because of the persistence of her symptoms, she proceeded to a second MRI scan on 26 November 2020 which demonstrated a full thickness tear of the rotator cuff.
Concurrently she continued to experience significant neck pain. This was located on the left side at the crook of the neck. She described ongoing arm pain with intermittent numbness affecting the radial three digits. It has been associated with a loss of range of movement in the neck and some shooting pain down the arm. While she was still living in Queensland, neurosurgeon Dr Finch examined the claimant on account of concerns over these symptoms. Injection therapy was trialled but had insufficient therapeutic effect, so Dr Finch recommended that she consider anterior discectomy and fusion.
She was unable to return to work because of her neck and shoulder problems. Because of this she had to go on to the pension and had to move back to the Central Coast of NSW as she could no longer afford the property in Queensland.
Because of ongoing symptoms she was referred to Dr Mark Coughlan, neurosurgeon. He again recommended that she consider surgery after finding features consistent with nerve root compression on his examination which were confirmed on MRI scanning.
In addition to the shoulder and neck pain she stated that she has developed some low back pain over the last three years or so. She was specifically asked about the presence of any thoracic spinal pain. She stated that at no point has she had any pain in the region of the thoracic spine following the accident.
Her current symptoms are pain around the left shoulder cowl. This is associated with difficulty lifting the left arm and is made worse by lifting and reaching. The pain she experiences from the shoulder is perceived in the shoulder itself as well as the upper humerus. In addition, she has persisting neck pain which is present constantly. It is associated with a decreased range of movement in the neck. She experiences shooting pain down the arm and tingling in the left radial three digits. Occasionally other digits can be affected.
On examination she was 154cm tall and weighed 75kg.
Examination of the cervical spine revealed no guarding or spasm on palpation of the cervical musculature. She was tender at the C6 level on the left and right rotation was 50% of the expected range and left rotation 25%. Flexion was 75% and extension 25% with complaints of pain. Lateral flexion was 50% of expected on the right and 25% of expected on the left.
Upper limb neurological examination demonstrated normal power distally but reduced power in the left biceps and triceps which was inhibited by pain in the shoulder. Reflexes in the upper limb were brisk at the supinator and biceps jerks on both sides and both triceps were normal. Spurling's test was positive on the left side, with reproduction of tingling in the 1st to 3rd fingers. She had subjective patchy change in sensation over the left hand and forearm not confined to a single dermatome or resulting in any dense anaesthesia.
Upper limb circumference was 32cm around both biceps measured 10cm above the lateral epicondyle. Both forearms had a circumference of 25cm measured 10cm below the lateral epicondyle.
Examination of the thoracic spine demonstrated symmetrical restriction of flexion and extension consistent with the patient's age. Rotation was similarly restricted but again symmetrical. There was no sensory abnormality over the chest wall to suggest any thoracic radiculopathy. There was no tenderness or guarding of the thoracic spinal musculature.
Shoulder movements were assessed with a goniometer and revealed the following ranges (in degrees)

Flexion

Extension

Abduction

Adduction

External Rotation

Internal Rotation

Right

160

50

140

40

90

90

Left

60

50

60

30

90

70

Panel deliberations

The Panel did not consider that there had been an injury to the thoracic spine. The claimant did not report any symptoms in this area and there were no findings on physical examination or available imaging to demonstrate any non-threshold injury that might have been asymptomatic.
The Panel carefully considered the question as to whether the shoulder injury was caused by the accident and whether it is non-threshold for the purposes of the MAI Act.
The claimant recalls being jolted by the accident. Whilst there is no history of direct impact to the shoulder, she was holding the steering wheel and driving at the time of the impact and this would have the potential to cause some injury to the shoulder when she was jolted. The Panel therefore considered that the accident could have caused an injury to the shoulder.
It was noted that the claimant had early symptoms of left shoulder pain after the accident on the basis of the history provided to the medical assessor today, and perusal of the GP notes of Dr Ling seven days after the accident. She developed a frozen shoulder subsequently. Frozen shoulders can develop spontaneously but also complicate painful lesions at the shoulder. The Panel therefore considered that on the balance of probability she did sustain an injury to the left shoulder in the accident in question.
In considering whether there had been a non-threshold injury to the shoulder, the key issue is whether or not the delamination tear observed on the first MRI scan performed five months after the motor vehicle accident was caused by the accident.
The Panel noted that the patient had undergone two ultrasound studies of the left shoulder, the first on 29 March 2019 and the second on 3 June 2019. Neither identified any rotator cuff tears. This would argue against the MRI findings being caused directly by the accident but suggests that it developed between June 2019 and August 2019.
The Panel therefore considered that on the balance of probabilities, the observed delamination tear was not caused by the car accident. It was felt more likely that the patient had sustained a soft tissue injury to the shoulder which had precipitated a frozen shoulder, or adhesive capsulitis.
The Panel then considered whether or not the claimant had sustained a non-threshold injury to the cervical spine. The medical assessment was that the type of rear end impact could cause an injury to the cervical spine including aggravation of underlying degenerative change.
The Panel then noted that the claimant had complained of neck pain from early after the motor vehicle accident and received physiotherapy directed at the neck. The Panel therefore considered that Mrs Gibbin had sustained an injury to the cervical spine in the accident in question.
To be a non-threshold injury she would need to have either a complete or partial tear of a ligament, cartilage or tendon. There is no suggestion this was the case in respect to the cervical spine.
The cervical spine would only represent a threshold injury if the motor vehicle accident had caused verified radiculopathy as defined at clause 5.8 of the Guidelines.
At re-examination Medical Assessor Barnsley felt that the left elbow weakness was caused by left shoulder pain. The sensory change was patchy, incomplete, and not confined to a single dermatome. Reflexes were symmetrical.
The Spurling’s test is a foraminal compression test and was suggestive of compromise of the left C6 nerve root in the foramen through which it exits. This is axiomatically not a positive sciatic nerve root tension test. Therefore, she does not meet criteria for radiculopathy at this examination.
The Panel then considered whether Dr Coughlan’s findings, as outlined by the claimant’s submissions constitute evidence of radiculopathy and if so, was this caused by the accident in question.
Dr Coughlan is an experienced neurosurgeon, and the detection of findings of radiculopathy are a vital component of his assessment of suitability for surgery. However, the Panel considered that there was insufficient detail to enable a confident diagnosis of radiculopathy to be made within the Guidelines and this is discussed below.
The Panel considered that in light of the evidence of new neck pain and the findings of spondylosis on the available imaging the diagnosis was that of aggravation of pre-existing but asymptomatic cervical spondylosis.
The Panel was satisfied that Medical Assessor Barnsley examination satisfied the Guidelines cl 5.6 because the Medical Assessor obtained a comprehensive accurate history, reviewed all the relevant records, was able to describe the claimant’s current symptoms, and performed a careful and thorough examination.

The Panel must satisfy itself there is sufficient evidence that would allow the Panel to feel persuaded that the claimant’s injuries probably occurred in the accident. This is in line with the authorities and Guidelines referred to above on causation.
The Medical Assessor confirmed the claimant behaved consistently and cooperated with the examination.

Cervical spine

The evidence established that the claimant was experiencing radicular symptoms soon after the accident.
The Panel – based on the Medical Assessors’ skill and experience – acknowledges that the occurrence of at least two clinical signs of radiculopathy at the same time can vary in each presentation.
The Panel considered the insurer’s submissions on David and Merhi. This Panel is of the opinion that David provides more coherent reasoning given that radiculopathy can vary in each presentation; the Guidelines provide a rubric for examination by “a medical practitioner or other suitably qualified person independent from the insurer”, which if applied in assessing past examination reports ensures that a decision maker has probative evidence to assess whether the injuries comply with the definition of threshold injury; and it is in comity with other Commission decision-makers.
The David’s Panel found at [104] that if an examination which complies with cl 5.5 after the subject accident finds that there are at least two clinical signs of radiculopathy that comply with cl 5.6 of the Guidelines, then the injury falls outside the definition of ‘a threshold injury’.
The Panel considered Guidelines cl 5.8 and whether two or more clinical signs of radiculopathy were detected together at the same time since the accident during another examination, which complied with cl 5.6.
The Panel notes that the claimant relies on spinal surgeon Dr Coughlan’s reports asserting that he had assessed two clinical signs of radiculopathy. However, in his reports dated 25 June 2022, 22 November 2022, 7 November 2023 and September 2024 it is apparent that although he consistently finds radicular symptoms, he does not provide a report with enough detail which complies with the Guidelines clause 5.8 based on one examination.
The Panel accepts the nexus between the cervical radicular symptoms and the accident because the Panel.
The Panel finds that although the cervical radicular symptoms have been constant since the accident, that the cervical spine injury fits the definition of threshold injury under the s 1.6(2) of the MAI Act definition, because the claimant’s presentation at the relevant examinations has not resulted in two clinical signs of radiculopathy being detected at the same time.

Left shoulder

The Panel considered the decision in Briggs v IAG Limited trading as NRMA Insurance referred to above on causation, where Wright J refers to clause 6.6 of the Guidelines in respect to causation and defined in the Glossary at page 316 of the AMA 4 Guides:
“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 judgement.”
His Honour makes it clear that the question to be answered is whether the accident could have caused or contributed to the alleged injury having regard to clauses 6.6 and 6.7 of the Guidelines and s 5D of the Civil Liability Act, 2022 (CLA).
Section 5D of the CLA requires the Panel to consider whether the accident contributed to the claimant’s left shoulder injury, which progressed from the traumatic adhesive capsulitis displayed in the earlier MRI and whether it ultimately resulted in a full thickness rotator cuff tear shown in the later MRI from 26 November 2020, which would fall outside the definition of threshold injury and whether liability could extend to the insurer for consequential acts as well as the initial injuries, which occurred during the collision
This Panel finds there was no discrete injury to the left shoulder in the accident other than the soft tissue traumatic adhesive capsulitis.
The Panel considered whether causation could extend to the outcome of the MUA Dr Burness performed on 15 November 2019.
The Panel – based on the Medical Assessors’ skill and experience – acknowledges that a full thickness rotator cuff tear is a known risk of of the medical procedure MUA of the shoulder.
Other than the MUA there were no intervening incidents occurring between the accident and the finding in a left shoulder MRI scan on 26 November 2020, which reported no features of adhesive capsulitis apart from some pericapsular oedema, but did find "Severe progressive supraspinatus insertional tendinopathy with new 8 x 15mm full thickness delaminating tear of its anterior insertional fibres.” Further, the claimant’s left shoulder condition was symptomatic consistently after that treatment.
The Panel finds the MUA could be a reasonable and necessary treatment for the initial accident-related soft tissue injury resulting in the frozen left shoulder, which the insurer’s Dr Phillip Truskett accepts in his report dated 20 March 2023, because the operation was performed on the recommendation of Dr Burness, the claimant’s treating shoulder surgeon.
The Medical Assessors agree however that knowing the risks of the procedure and given the absence of other causes it is probable that the claimant’s rotator cuff tear is a result of the manifestation of a known risk of MUA. Such an injury would fall outside the threshold injury definition.
The Panel finds the claimant probably sustained injury to the left shoulder caused as a consequence of manipulating the claimant’s left shoulder under anaesthetic resulting in a consequential injury on 15 November 2019.
Applying the principles as to causation set out in clauses 6.5 to 6.7 of the Guidelines in accordance with Briggs the Panel finds the injury to the left shoulder was materially contributed to by the accident where the facts establish that the claimant sustained consequential injury to the left shoulder occasioned due to treatment, being a complete or partial rupture of tendons, ligaments, menisci or cartilage.
Having regard to the provisions of s 5D of the CLA the Panel is satisfied that factual causation has been established in that the negligence of the insured was a necessary condition of the occurrence of the harm where the consequential injury to the left shoulder was occasioned by the claimant’s treatment for her accident-related left shoulder injury. The Panel also finds that it was appropriate for the scope of the insurer’s liability to extend to the harm caused to the claimant given the nature of the injury sustained and the need for further treatment.
It is clear from the Guidelines that the Panel must have regard to common law principles. The Panel notes the decision of the High Court in Mahony v J Kruschich (Demolitions) Pty Ltd as a leading authority for proposing that an original tortfeasor remains liable for an injury and for any subsequent treatment unless the conduct of the subsequent treatment provider can be categorised as grossly negligent.[5]
[5] (1985) 156 CLR 522

Thoracic spine

The Panel found that the thoracic spine was not injured as a result of the accident.

CONCLUSION

The Panel revokes Medical Assessor Rosenthal’s further certificate dated 17 August 2024.
The Panel find the accident caused the following injuries:
· cervical spine – aggravation of underlying cervical spondylosis, and
· left shoulder – rotator cuff tear.
The shoulder injury is a non-threshold injury under the s 1.6(2) definition of the MAI Act.

Flexion	Extension	Abduction	Adduction	External Rotation	Internal Rotation
Right	160	50	140	40	90	90
Left	60	50	60	30	90	70

[2025] NSWPICMP 523

17 July 2025