Gilbey v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	Gilbey v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMP 403
CLAIMANT:	Samantha Gilbey
INSURER:	Insurance Australia Limited t/as NRMA Insurance
REVIEW PANEL
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Michael Couch
MEDICAL ASSESSOR:	Chris Oates
DATE OF DECISION:	21 August 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; medical assessment of threshold injury by Medical Assessor (MA) Cameron and claimant’s review under section 7.26; claimant involved in 100kmph collision with car parked in breakdown lane on freeway; claimant front seat passenger sustaining significant seat belt bruising and soft tissue injuries to her chest and spine; claimant had pre-accident shoulder bursitis; scans after accident showed tears of the left labrum and a SLAP lesion; insurer asserted tears were not caused in the accident; Held – medical examination not necessary; Sydney Trains vs Batshon distinguished; MA given access to the imaging studies and compared pre and post-accident ultrasounds which showed tears in the labrum of the right and left shoulders; Kinchela vs NRMA and Briggs v NRMA (no 2) considered regarding test of causation; Panel satisfied high speed collision could have caused tears to shoulders; Panel satisfied the claimant did injure her shoulders in the accident; Panel found that the claimant sustained a partial thickness tear of the supraspinatus tendon and tears of the labrum which were the partial rupture of tendons and cartilage and therefore not threshold injuries; certificate of MA revoked.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate of Medical Assessor Cameron dated 12 March 2023. 2. Certifies that the left shoulder injury sustained by Samantha Gilbey in the motor accident of 8 October 2019 is not a threshold injury for the purposes of the Act.

STATEMENT OF REASONS

INTRODUCTION

Ms Gilbey was involved in a motor accident on 8 October 2019. She was the front seat passenger in a friend’s motor vehicle travelling at about 100 kmph on the Pacific Highway when the car she was in drifted to the left and hit a car parked in the emergency breakdown lane.
Ms Gilbey says that, as a result of the accident, she injured her neck, left shoulder, arm and hand. Ms Gilbey made a claim for statutory benefits with NRMA, the third-party insurer of the vehicle she was in. Benefits were paid and NRMA has admitted Ms Gilbey was not at fault.
A medical dispute about whether any of Ms Gilbey’s injuries were not threshold[1] injuries arose in the claim.[2] The claimant referred that dispute to the Personal Injury Commission (the Commission) for assessment.
[1] The statutory benefits scheme was amended by the Motor Accidents Injuries Amendment Act 2022. The term “threshold” injury was introduced to replace the previous term “minor” injury and this amendment applies to all claims regardless of the date of the accident. The parties referred a dispute about “minor” injuries to the Commission and the Medical Assessor determined that injuries were “minor.” For ease of reference, and to avoid confusion, the Panel has adopted the new terminology of “threshold” injury throughout these reasons.
[2] The insurer denied liability for ongoing benefits in a notice dated 8 June 2021 (page 15 or R1). The claimant sought an internal review (page 25 of R1) and the insurer affirmed its decision (page 1829 of R1).
On 12 March 2023, Medical Assessor Cameron determined that all of the claimant’s injuries were threshold injuries. The claimant then lodged an application with the Commission seeking a review of the Medical Assessor’s decision.
On 27 April 2023, a delegate of the President of the Commission determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review to proceed. On 3 May 2023, a delegate of the President convened this Panel to conduct the Review.

LEGISLATIVE FRAMEWORK

Jurisdiction

Ms Gilbey’s claim is governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act). This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
The statutory benefits available under the MAI Act are limited. One of the limitations is that, under ss 3.11(1) and 3.28(1), statutory benefits cease 26 or 52 weeks after the motor accident if the only injuries sustained by the injured person are “threshold” injuries.[3]
[3] The availability of statutory benefits was amended to allow benefits for 52 weeks (previously 26 weeks) but this amendment only applies to accidents occurring on or after 1 April 2023.
The issue of “threshold injury” is also relevant to a common law damages claim. While a claim can be made regardless of the severity of the injury, no damages are recoverable if the claimant’s only injuries are “threshold” injuries.[4]
[4] Section 4.4 of the MAI Act.

What is a threshold injury?

A threshold injury is defined in s 1.6(1) of the MAI Act as a “soft tissue 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) …”
Section 1.6(2) continues with words that remove certain injuries from the definition as follows:
“… but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
In summary if a person injured in a car accident sustains soft tissue injuries only then, unless one of those soft tissue injuries falls within the exclusion contained in s 1.6(2), the injured person’s statutory benefits cease in accordance with ss 3.11 and 3.28 of the MAI Act.

Dispute resolution

If there is a dispute about whether an injured person’s injuries are minor injuries or not, that matter is declared a medical assessment matter which may be referred to the Commission for assessment.[5]
[5] Schedule2, clause 2(e) in the MAI Act.
Chapter 7, Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Cameron’s, further medical assessments and the review of medical assessments by this Panel.[6]
[6] Sections 7.20, 7.24 and 7.26 of the MAI Act.

ASSESSMENT UNDER REVIEW

Medical Assessor Cameron examined the claimant on 24 February 2023 and issued his certificate on 12 March 2023. He says at [2] that he was asked to assess the following injuries:
(a)    cervical spine - musculoskeletal injuries, musculoligamentous injuries, left sided C8 radiculopathy;
(b)    thoracic spine - musculoskeletal injuries, musculoligamentous injuries, thoracic compartment syndrome;
(c)    lumbar spine - musculoskeletal injuries, musculoligamentous injuries;
(d)    left and right shoulder - musculoskeletal injuries, musculoligamentous injuries, and
(e)    head - complex regional pain syndrome.
Medical Assessor Cameron records at [8] that Ms Gilbey had an accident on a bus about four months before the accident. The Panel notes that the bus accident occurred in February 2017, two and a half years before the accident. The claimant is reported as saying she injured her shoulder and that she had treatment and her symptoms resolved.
The claimant gave a consistent history at [9] of the accident saying she was taken to Grafton Hospital by ambulance, assessed and discharged.
The claimant said she had extensive seatbelt bruising and continuing symptoms in her left shoulder, left arm and hand and neck pain with limited movement.
At [12] and [13] it is recorded that the claimant had attended a pain management course, changed medications, seen a physiotherapist and psychologist. She now takes Endone on a daily basis along with Norflex, Nurofen and Naproxen.
Medical Assessor Cameron records at [14] his findings on clinical examination as follows:
(a)    cervical spine – no spasm, guarding, dysmetria and no non-verifiable radicular complaints. There were no neurological (radiculopathy) signs in the upper limbs;
(b)    shoulders – there was a full range of motion at both shoulders but with pain at the extremes of movement;
(c)    thoracic spine – marked but symmetrical loss of motion, no spasm, guarding or dysmetria and no non-verifiable radicular complaints;
(d)    lumbar spine - reduction of motion but no spasm, guarding, dysmetria or non-verifiable radicular symptoms, and
(e)    lower limbs – full range of motion and no neurological signs.
At [18] Medical Assessor Cameron diagnosed a soft tissue injury to the neck and left shoulder. He says there was no radiculopathy present. At [21] he says there was no evidence of a complex regional pain syndrome.
Medical Assessor Cameron found all injuries were threshold injuries.

ISSUES FOR DETERMINATION

Claimant’s submissions

The claimant’s submissions are dated 6 April 2023.[7]
[7] Page 1 of A1.
The claimant says at [5] that Medical Assessor Cameron did not analyse the claimant’s pre and post-accident complaints. She says at [6] that her 2017 left shoulder complaints related to bursitis and that the tears visible on ultrasound after the accident were caused by the accident. She also says at [7] that MRIs of the left shoulder showed labral tears and a superior labral tear from anterior to posterior (SLAP) lesion.
The claimant submits that these tears and labrum changes are not threshold injuries because they are the total or partial rupture of ligaments, tendons or cartilage within the meaning of s 1.6(2).
The claimant says at [2] and [10] that Dr Bodel has referred to the radiological findings and Medical Assessor Cameron has not referred to them or related them to his opinions.

Insurer’s submissions

The insurer’s submissions are dated 19 April 2023.[8]
[8] Document R2 in the Commission’s file.
The insurer says at [2] and [5] that the Medical Assessor has considered all of the medical evidence including the report of Dr Bodel which he cited in reference to a permanent impairment assessment.
The insurer says at [7] that the Medical Assessor is entitled to form his own opinion and is not bound to have regard to the opinions of medico-legal experts.
The insurer refers at [8] to the medical evidence surrounding the claimant’s fall in the bus in 2017 and the claimant’s history that her left shoulder problems had resolved before the accident. The insurer documents the claimant’s radiology and the reports of Dr Bateman and Dr Reid saying there was no major rotator cuff tear and a suspected SLAP tear. The insurer also refers to Dr Tame’s reports where he expressed the view the claimant’s shoulder pain could be related to poor posture and left shoulder and arm pain could be related to “compressive pathology” in the neck.
The insurer says at [9] that at the time of the assessment the claimant had not been diagnosed with a SLAP tear but has a neck injury with scapular instability.
The insurer says the Medical Assessor has diagnosed correctly soft tissue injuries which are threshold injuries.

Procedural matters

Preliminary conference report

The Panel convened at a preliminary tele conference on 20 July 2023. The Panel noted the injuries assessed by Medical Assessor Cameron and the claimant’s review submissions and asked the claimant to advise whether there was any dispute about the minor / threshold injury findings in relation to the claimant’s head, neck and lumbar spine.
The Panel noted the pre-accident shoulder complaints, the post-accident shoulder complaints and the radiology which revealed two labral cysts, an avulsed posterior labrum in the left and an anterior labral tear in the right and expressed the preliminary view that large or small, a tear of the labrum may be a “partial rupture of cartilage and therefore a non-threshold injury” within the meaning of the Act.
The Panel notes that the claimant and the insurer had provided extensive documentation and that the insurer had provided a bundle of documents with much duplication. The insurer was directed to provide a revised bundle.
The Panel requested access to the digital imaging studies of the shoulder (not simply the reports) and advised it did not intend to re-examine the claimant. The parties were invited to provide final submissions and any final documents.

Claimant’s response

On 10 August 2023 the Panel was advised of a message sent to the Commission from the claimant. The claimant submitted that the only injuries that the Panel was required to consider in the review were the injuries to the left and right shoulders.
The claimant advised an authority to obtain the digital images would be uploaded and two authorities were provided.

Insurer’s response

The insurer responded on 2 August 2023 agreeing that the Review Panel should limit its deliberations to the shoulders.
The insurer provided the Panel with a list of entries concerning the pre-accident shoulder complaints and the post-accident complaints. The insurer referred to the report of Dr Powell who had diagnosed a soft tissue left shoulder injury on a background of underlying rotator cuff tendinopathy and labral degeneration. The insurer also relied on the first report of

Dr Bateman who said there was minor labral pathology and the MRI scan was otherwise unremarkable.
The insurer referred to the later report of Dr Bateman who diagnosed the cervical spine injury and points to the Grafton Base Hospital discharge summary and physiotherapy records which identified a probable whiplash injury and that the claimant had treatment to her neck and thoracic spine only.

REVIEW OF THE EVIDENCE

General comments

The claimant provided a bundle of 408 documents in her original application for medical assessment.[9]
[9] This document is identified as A1 in the Commission’s electronic file related to the review proceedings.
The insurer provided a bundle of over 3,000 pages in its reply to the original application for medical assessment. The insurer’s bundle is full of duplication. For example, there are two copies of each of the insurer’s expert reports and multiple copies of the general practitioner’s (GP) notes. There is also duplication with the claimant’s bundles in that each party has lodged a set of records from the GP, Dr Tame and Dr Bateman.
Justice Basten in Rahman v Insurance Australia Ltd t/as NRMA Insurance[10] said at [63]:
“The Court of Appeal has, on more than one occasion, remarked on the volume of material which is routinely provided to medical assessors under the Act and under workers’ compensation legislation … Not only is there no general law principle requiring an assessor to refer in reasons accompanying a certificate to all the documentation to which he or she has had access, but rather, the function of the assessor is inconsistent with any such obligation. A judicial officer is not required to refer to each piece of evidence in a judgment determining the resolution of a dispute to which expert opinion is critical. As noted above, the function of the medical assessor is quite different. The assessor is not resolving a dispute between experts, but forming his or her expert opinion. The application of expertise permits (and indeed requires) the assessor to be discriminating as to that material which he or she considers significant and that which may be disregarded or given little weight. There is no requirement to identify material falling into the latter category, nor to justify its exclusion from consideration.”
[10] [2022] NSWSC 1079.
The Panel notes that there are multiple copies of many certificates of fitness and lengthy pre-accident records. The Panel does not propose to refer to all of the documents relied on by the parties but only those document the Panel considers significant.

Claim form and claim documents

Ms Gilbey’s claim form is dated 21 October 2019.[11] She gives a brief description of the accident noting that she was turning her head at the time and saying, “I didn’t have time to scream we just went bang”.
[11] Page 31 of A1 and page 8 of R1.
Two weeks after the accident, Ms Gilbey lists her injuries as:
(a)    continuous flashbacks. Even when dreaming;
(b)    dizziness if she looks up or down or sideways;
(c)    sore neck;
(d)    whiplash, and
(e)    sore back.

Pre-accident general practitioner records

Records from Ourimbah Surgery have been provided[12] which detail a history of depression since 2002, severe emphysema since 2003, a fractured sixth rib in 2000, sacroiliitis in 2000 and heavy cannabis use in 2003.
[12] The records have been provided four times at pages 87 of A1 and pages 2042, 2282, 2857 and 3095 of R1.
The claimant had been prescribed Zoloft in 2000. In 2003 there were ongoing concerns about breathing and reports of domestic violence incidents. She was involved in a motor accident in September 2003 when the car she was in blew a tyre and hit a truck. She was not physically injured in that accident but was shocked and not sleeping and very tearful.
There are ongoing attendances from 2004 about stress, anxiety, attempts to quit smoking, family matters and chest pains.
On 25 October 2011 there is a reference to an X-ray and ultrasound and pain in the anterior shoulders on both sides and she was to try an injection into the bursa but there do not appear to be other related entries at this time.
At the end of 2012 with the claimant working, her medication was reduced and she was walking and getting more sleep. In April 2013 the claimant had a back injury which was investigated and required a steroid injection. This appears in the notes to be present again in October 2013. By March 2014 it is referred to as “chronic severe disabling back pain” requiring Panadeine Forte, Targin Fentanyl patch and Valium.
On 3 May 2014 there is an entry referring to “tingling left arm day 3, now to ulnar hand only - onset while picking up a stack of jeans”. There was no nerve pain and no restriction of neck movements. This was considered to be an acute ulnar nerve entrapment and X-rays and MRIs were done.
On 12 July 2014 there is a reference to an old T12 wedge compression with facet joint disease at T11. On 26 September 2014 she fell down a few stairs at home carrying the washing causing mid and low back pain. X-rays showed no fractures.
In early 2015 the claimant had more elbow nerve pain and low back pain with Targin and Valium prescribed. On 14 December 2015 there was a review of X-rays of the spine with “much old disc damage”. The claimant was prescribed medication and may have been referred to a psychiatrist.
Back pain and medication were the reasons for ongoing visits in 2016.
On 6 February 2017 is this entry:
“Bus accident, all thrown forward braced herself with arms. Next day after working on register [increase in] pain during day, pain constant, [increased] pain with lifting hand behind back, right shoulder still sore only similar place. No neck pain taking back pain tablets and voltaren. No [previous history] of shoulder pain. Tender anterior and posterior shoulder [increased] pain into biceps ans supraspinatus tendons – for ultraound of shoulder.”
The result of the ultrasound was bursitis and scripts were prescribed. She was a bit better on 20 February 2017. In March of 2017 the claimant had continuing lower back and leg pain and hip pain in April. She was prescribed Targin and Lyrica and her knee was swollen and painful.
While there are few notes for many of the records during 2018, it appears the claimant attended for scripts including Targin and Valium for lower back pain. In February 2019 the claimant was complaining of low thoracic back pain increasing while she was at work and

X-rays were requested. Lyrica appears to have been prescribed. It is described as sacroiliac joint pain in March 2019, and it continued to be an issue during much of 2019 before the accident.

On 4 September 2019 the claimant was referred to Royce Allenson, chiropractor as part of a GP care plan for thoracic spine on a background of lumbo-sacral pain.[13]
[13] The referral is at page 1545 of R1.

Medical records and reports from treatment providers

The discharge summary from Grafton Base Hospital is dated 9 October 2019.[14] It includes this detail:
“[the claimant] presented to this facility with Motor Vehicle Accident (MVA). She was the front seat belted passenger in a high speed (100 – 100kph) MVA into a parked car. Her airbags deployed. There was no loss of consciousness. She self-extricated from the vehicle, to check on the other passengers. She was then [brough in by ambulance] to Grafton’s [emeregency department]. Whilst there she had CT and CXR, X-ray of [thoracic] spine all normal.
She was admitted to the ward for observation overnight and had a physio review in the am. Tertiary survey the next day revealed no new injuires. However she is very sore in upper back, possibly suffering ‘whiplash’.”
[14] Page 1541 of R1.
The first entry after the accident in the Ourimbah surgery notes is dated 14 October 2019 and reads as follows:
“MVA 100 km / hr ran into parked car. ?How. Girlfriend driving 6 days ago. [Claimant] passenger, seat belt. Initially assessed Grafton, no [loss of consciousness]. Sore upper spine, neck pain. Now bruising across left chest wall, right chest wall pain – [reduced] range of motion to neck, right headache and some dizziness; [reduced] pain in back, massive lower abdominal and upper thigh bruising. Some PTSD nightmare sleep interrupted and difficult to initiate sleep.
C6, C3, C2, right base of skull. Neck flexion nil, right rotation 45 degrees, extension 10 degrees. Right sternal / rib pain, tender ? axillary right rights.”
An allied health recovery request (AHRR) for physiotherapy treatment from 21 October 2019 noted cervical and thoracic spine problems. Further requests include the shoulder.
The first certificate of fitness signed by Dr Reid is dated 4 November 2019.[15] It diagnoses a “whiplash injury, massive bruising to chest and abdo from seat belt, possible fractured ribs, PTSD”. The subsequent certificates have variations on those diagnoses as the claimant’s injuries were investigated and her symptoms resolved or emerged. For example, the certificates of fitness dated 29 September 2020 and 31 May 2021 includes the left shoulder and thoracic outlet syndrome.
[15] Page 1858 of R1.
On 15 November 2019 the claimant reported to her GP she was improving her range of motion with physiotherapy but was very restricted. At this time the bruising was almost gone. The first mention of shoulder pain appears to be on 29 November 2019 when the records reveal there was left neck / shoulder pain and left rib pain.
An AHRR for chiropractic treatment dated 19 December 2019 noted T4 syndrome, multilevel cervico-thoracic restriction complex post whiplash and identified that the claimant had torticollis, chest and shoulder pain since the accident, vertigo and left arm radicular pain.
There were various complaints of neck, shoulder and her old back pain in 2020 leading to an attendance on 7 July 2020 where the claimant said she felt her shoulder had been damaged in the accident. She had bursitis before, but the labral tear was said to be new. She reported she had felt pain in the shoulder since the car accident.
Dr Bateman wrote to Dr Reid on 31 August 2020.[16] He had a history of the high speed collision and that “she had her hands up to brace herself and she felt pain in the neck and back at the time”. He diagnosed a whiplash injury and functional neurogenic thoracic outlet syndrome. She had signs of scapula instability, but her shoulder range of motion was normal. There was minor labral pathology.
[16] Page 356 of A1. Dr Bateman’s records are also provided at page 42 of R1.
Dr Bateman provided an update to Dr Reid on 3 October 2020 after reviewing the MRI scan noting bilateral and neural foraminal narrowing at C7/T1. He recommended pain management and a referral to Dr Tame for Botox injections.
Dr Tame wrote a lengthy letter to Dr Bateman, orthopaedic surgeon on 20 October 2020.[17] He records on examination a “small patch of hypoesthesia to [puncture or pinprick] in a C8 distribution”. Her left shoulder was held in a protracted and elevated posture, and she was tender in the shoulder girdle muscles. He noted the nerve conduction studies and MRI findings. He agreed that the claimant’s shoulder pain might be a result of poor posture and recommended Botox. He also recommended an epidural steroid injection if the left shoulder and arm pain related to a nerve injury in the neck.
[17] Page 254 of A1. Dr Tame’s records are also provided at page 27 of R1.
Dr Tame provided advice about the medication and requested psychiatric assessment and pain management education.
Dr Tame wrote to Benchmark Rehabilitation on 3 November 2020 advising of treatment including the Botox injection to the pectoralis minor muscle, cervical epidural steroid injection and pain management education.
Dr Bateman wrote to Benchmark Rehabilitation on 23 November 2020. He referred to a compressive injury to the lower cervical spine resulting in multiple pathologies, scapular instability and a functional neurogenic thoracic outlet syndrome. He had no history of any previous problems and expressed a poor prognosis and required pain management from

Dr Tame.
Dr Tame wrote to Dr Reid and NRMA on 19 January 2021[18] expressing disappointment at NRMA’s refusal to fund further “minimally invasive” treatment. He says he is now “focusing solely on strategies for living with persistent pain, rather than reducing pain”.
[18] Page 3060 of R1.
Dr Tame wrote to Dr Reid on 2 March 2021 concerning the claimant’s involvement in a “moderate intensity pain management program”.[19] There is a letter to Dr Smith of the Central Coast Pain service. He says that as a result of the car accident in 2019, the claimant has had longstanding left sided neck, shoulder and arm pain with some neuropathic characteristics in a T1 – C8 distribution.
[19] Page 244 of A1.
He noted the claimant’s development of post-traumatic stress symptoms and worsening depression. He also records the use of low dose opioid analgesics (Targin) and Valium.
Dr Little wrote to Dr Reid on 26 May 2021[20] noting that the claimant’s most significant complaints since the accident were neck and left shoulder pain with tingling in the left arm.
[20] Page 53 of A1.
He refers to nerve conductions studies done the previous year but no EMG and that despite physiotherapy and chiropractic treatment she was getting worse. He notes multiple areas of canal stenosis but “no convincing cord compression”.
Dr Little noted altered pin prick sensation in two lingers on the left but present reflexes and an inverted supinator jerk on the left.
He thought Ms Gilbey had a “somewhat complex pain syndrome” but wished to do a repeat MRI, bone scan and EMG in the left arm.
In a further letter dated 29 July 2021, Dr Little noted no deteriorating pathology on imaging but suggested a C4 to C7 anterior fusion if her “progressive ... pain [was] unresponsive to other measures” but that the change of any significant benefit was 80%.
Dr Joshi wrote a letter to Dr Reid dated 11 October 2021.[21] He refers to earlier treatment in September 2020 for “bilateral neurogenic shoulder pain and left-sided C8 radiculopathy”. He says MRI scans showed tendinopathy without an obvious tear. He notes a Botox injection into the pectoralis minor was recommended but not funded by the insurer.
[21] Page 49 of A1.
He notes she has seen Dr Little, neurosurgeon who apparently advised no surgery was indicated and was awaiting pain management from Dr Tame.
The claimant was complaining of bilateral scapula and lateral shoulder pain with paraesthesia into the hand and was having physiotherapy. He noted a persistent neurogenic component and says that the rotator cuff is difficult to assess but he did not think there was anything structural that would benefit from surgery. He advised continuing input from pain management and physiotherapy.
Dr Tame wrote to NRMA on 19 January 2021[22] concerning the recent declinature of treatments proposed by Dr Tame and Dr Bateman. “We are now focusing solely on strategies for living with persistent pain, rather than reducing pain.” He recommended a high intensity pain management program and psychiatric assessment.

Radiology

[22] Page 248 of A1.

Shoulders

The insurer uploaded, at the request of the Panel, a bundle of the radiology concerning the claimant’s shoulder.
The claimant had an X-ray and ultrasound of her right shoulder on 18 October 2011.[23] All tendons were reported as normal and there was no evidence of significant bursal or joint fluid. The concluding comment was mild bursal thickening. Steroid was injected into the joint on 15 November 2011.
[23] Page 234 R1.
On 10 February 2017 the claimant had an ultrasound of her left shoulder[24] following her fall in the bus and due to pain with rotation. The result of the scan was:
“The tendon of the long head of the biceps is intact and is not subluxed. There is no peritendinous fluid. The proximal tendon is mildly thickened. The rotator cuff tendons are intact. No tear is seen. The tendons have a mildly heterogenous appearance in keeping with mild tendinopathy. The subacromial-subdeltoid bursa is mildly thickened. On dynamic imaging, shoulder abduction was achieved to 90 degrees with pain. There is mild impingement beneath the acromion.
No rotator cuff tear seen. Mildly thickened subacromial-subdeltoid bursa indicating bursitis. Mild bursal impingement with shoulder abduction.”
[24] Page 272 of R1.
The claimant had an ultrasound injection of anaesthetic into the subacromial bursa on
14 February 2017.
On 6 July 2020 the claimant had an ultrasound of her left shoulder[25] which reports bursitis with evidence of left shoulder impingement. There was a bursal surface tear of the fibres of the supraspinatus tendon but no tear of the subscapularis. There was a cyst “suggestive of underlying labral injury / tear”. On 10 July 2023 the claimant had an ultrasound guided injection of Celestone into her left subacromial bursa.
[25] Page 391 of A1.
On 23 July 2020 an MRI of the left shoulder was done showing:
“1. Oedema involving the inner superior aspect of the subscapularis muscle extending towards the serratus anterior muscle and brachial plexus in keeping with muscular injury. To better exclude brachial plexus and more extensive muscle injury imaging of the brachial plexus is recommended as this area is incompletely assessed.
2. There are two labral tears present giving rise to small paralabral cysts.”
On 7 August 2020 under ultrasound guidance the left subacromial bursa was injected with Celestone.
On 30 September 2020 an MRI of both shoulders was done[26] with a history of “whiplash probably neurogenic outlet syndrome both shoulders”. At the left shoulder there was tendinopathy “no major rotator cuff tear” and an intact long head of biceps tendon. Intact extrinsic ligaments and small subdeltoid bursal effusion. There was an avulsed posterior labrum with a cyst of up to 14 mm which suggested a “likely SLAP tear” with disruption of the anterior glenoid labrum. In the right “no major rotator cuff tear” but an anterior labral tear suggestive of a SLAP tear.
[26] The report is dated 1 October 2020.

Other radiology

A bone scan was done on 30 April 2013 due to a history of back pain and T12 wedge deformity which had shown up on X-ray.[27] There was no evidence of recent T12 fracture and that the wedging at T12 was “old or congenital/degenerative”. There was facet joint disease at left T11 and right L3/4.
[27] Page 245 of R1.
The claimant had an X-ray of her left elbow on 9 May 2014 to investigate a possible ulnar nerve impingement. The X-ray showed no bony spur or osteophyte. An MRI on 23 May 2014 showed features consistent with ulnar neuritis but no compression. “In addition, there is triceps tendinopathy at the insertion of the triceps tendon at the olecranon with minor olecranon bursitis.” An ultrasound injection into the left elbow was given on 12 January 2015.
On 26 September 2014 the claimant had a thoracolumbar X-ray[28] following a fall which showed minor indentation of the end plates but no significant compression fractures seen. The claimant had a further X-ray of her thoracic spine on 12 February 2019 due to “back pain”.[29] There were no wedge compression fractures and mild degenerative changes at all levels. A CT guided injection was given into the shoulder on 2 July 2020. Another X-ray of the claimant’s thoracic spine was done on 8 October 2019.[30] It revealed no vertebral body compression fracture but mild to moderate thoracic degenerative spondylosis. An X-ray of the chest was done on the same day showing no injury.
[28] Her notes are found at page 258 of R1.
[29] Page 290 of R1.
[30] Page 182 of A1.

Psychiatric and psychological reports

Dr Reid referred the claimant to Ms Bowring for counselling on 16 March 2017.[31] The referral refers to a lengthy history of mental health issues and “low resilience”. Dr Reid wrote to

Ms Bowring on 15 May 2017 concerning the development of a care plan to help deal with the claimant’s anxiety, depression and chronic pain.
[31] Page 259 ofA1.
On 11 July 2019, Ms Bowring wrote to Dr Reid noting that the claimant was coping better than before and that “for the first time in her life … she is undertaking tasks on her own which, in turn is leading to increased self-confidence”.
Dr Reid gave a further referral on 14 October 2019 after the accident to deal with symptoms related to the car accident.

Insurance documents

Benchmark Rehabilitation provided services to the insurer through Peter Proctor an occupational therapist.
His first report is dated 28 October 2020. He documents the claimant’s treatment noting her long time GP Dr Reid transferred her care to Dr Dilger, that he arranged injections into her left shoulder and she had physiotherapy then chiropractic treatment from Dr Dilger’s son before being transferred back to Dr Reid. Dr Reid then arranged for her to see Dr Bateman then Dr Tame.
There is a further report dated 5 November 2020.[32] At this stage, over a year after the accident, the claimant’s diagnosis was not yet certain and the aim of the plan at that time was to clarify the diagnosis, obtain opinions about recovery and increase the claimant’s tolerance for domestic tasks.
[32] Page 402 of A1.

Medico-legal reports

Dr Powell provided a report to the insurer dated 11 February 2021.[33] He has a consistent history of the accident and the claimant’s immediate treatment. He has a record of the 2017 left shoulder symptoms.
[33] After an examination on 16 December 2020.
Dr Powell records the claimant’s current symptoms relate to her neck which involves a “constant sharp pain” which radiates across to the left side and down the left upper limb to the hand. This limb pain is intermittent but occurs daily. The claimant reported pins and needles “in a variable but fairly diffuse pattern”. She has stiffness and restriction of neck and left shoulder motion.
Dr Powell records that the claimant “was most compliant and cooperative” with “no suggestion of overreaction or exaggeration”.
When examined the claimant had tenderness in the neck without spasm and restricted range of motion with dysmetria in the flexion/extension plane. There were no signs of radiculopathy in the upper limbs. Left shoulder motion was restricted.
Dr Powell did not have the scans or images and relied on the reports.
He diagnosed a musculoligamentous injury of the cervical spine and aggravation of multilevel cervical spondylosis changes. In terms of the left shoulder, he diagnosed a “soft tissue injury … on the background of some underlying rotator cuff tendinopathy and labral degeneration”. In answer to a question about causation he said the accident aggravated underlying degenerative disease in her spine and left shoulder.
He expressed the view, without reasoning or reference to the definition, that the injuries were minor injuries.
Dr Bodel provided a report for the claimant dated 14 November 2022.[34]
[34] Page 11 of A1.
He takes the following history from the claimant:
(a)    the claimant was not working at the time of the accident but had previously worked at Target;
(b)    the claimant has been doing some part time work since the accident;
(c)    she says she injured her head, neck, left shoulder, numbness and tingling down the left arm to all five digits of the left hand, injury to her back and post-traumatic stress and aggravation of pre-existing depression;
(d)    she was at the time of the accident the front seat passenger in a Mazda 3 which veered into the left hand lane of the Pacific Highway just north of Coffs Harbour and struck a car parked in the breakdown lane. The airbags deployed and the car was severely damaged. She had to ‘fight to get the [air] bag down off her after the accident”;
(e)    two of the passengers with more serious injuries went to Coffs Harbour Hospital and the claimant and another passenger were taken to Grafton Hospital. The claimant was kept overnight, and
(f)    Ms Gilbey returned to her home on the Central Coast and saw her GP and had investigations and some physiotherapy. She has improved but not recovered. She has been referred to Dr Tame, pain specialist in respect of her mid back pain and Dr Bateman for ongoing shoulder symptoms.
Dr Bodel considered the first MRI scan of the left shoulder showed two labral tears but later MRI scans showed no major rotator cuff tear but a SLAP lesion. MRI of the spine showed degenerative changes and potential nerve root damage at every level.
Dr Bodel has a history of mental health issues and medication for 20 years. He also has a history of a “minor motor vehicle accident in the past” and an injury to her left elbow three years ago.
On examination of the neck there was guarding at the base of the neck on the left side, asymmetry of movement and dysmetria. She had full range of right shoulder motion but restrictions on the left and tenderness over the rotator cuff. He found impingement in the left shoulder but no instability.
He considered the numbness and tingling was global and did not fit a dermatomal distribution or evidence a median or ulnar nerve problem. Reflexes were present and equal and there was no wasting in either arm. He found no sign of complex regional pain syndrome.
The lumbar spine had a good range of motion and there was some discomfort at the lumbosacral junction but not guarding or spasm and no dysmetria. There was no neurological abnormality in the lower limbs.
He diagnosed at [4] “cervical degenerative disc disease and rotator cuff pathology in the region of the left shoulder”. He says the degenerative changes were asymptomatic and the accident has caused a significant aggravation. While he does not specifically mention the precise pathology he says at [5] the left shoulder problems were caused by the accident.
In a separate report concerning impairment he diagnosed a DRE II or 5% impairment and restricted movement in the left shoulder at 8% WPI.

Psychiatric injury

Dr Vickery provided a report to the insurer dated 21 January 2021.[35] He diagnosed attention deficit hyperactivity disorder (ADHD) with cognitive and learning impairment. He also considered she had a social phobia and chronic pain disorder all of which were pre-existing and not related to the car accident.
[35] Page 775 of R1.
Dr Holdaway psychiatrist has also provided an extraordinarily detailed report of the claimant’s pre-accident mental health history and her current state. The report is dated

3 February 2023[36] and is addressed to the claimant’s solicitor following a consultation on

5 December 2022. In her view, the claimant sustained an exacerbation of a post-traumatic stress disorder and probably has symptoms of ADHD.
[36] Page 22 of A1.
Medical Assessor Fukui issued a certificate on 2 June 2023. While she diagnosed a depression and post-traumatic stress disorder, she found these were not caused by the accident and therefore no decision about threshold injury was necessary.

CONSIDERATION OF THE ISSUES

What are the issues in the proceedings?

In a medical assessment matter referred to a Panel under schedule 2(2)(e) of the MAI Act about “whether the injury caused by the motor accident is a threshold injury”, the Panel is of the view that the Panel must:
(a) identify the injuries caused by the motor accident, and
(b) determine whether each of those injuries is a threshold or non-threshold injury.
As a preliminary matter the Panel must first determine the method of assessment which is appropriate taking into account the guiding principle of the Commission which is to “facilitate the just, quick and cost effective resolution of the real issues in the proceedings”.[37]
[37] Section 42 of the Personal Injury Commission Act 2020.
There is no dispute in the proceedings that the claimant sustained an injury to her chest, spine and shoulders in the accident. What is in dispute appears to be the particular and specific type of injury sustained or the nature and extent of those injuries.
The Panel notes it is undertaking pursuant to s 7.26(6) an assessment de novo that is “a new assessment of all the matters with which the medical assessment is concerned”.
The Panel also notes that s 7.25 provides that a review can proceed “on the basis of any agreement by the parties as to … whether a particular injury was caused by a motor accident”.
As the claimant has conceded that her chest and spine injuries are threshold injuries and the parties have agreed that the Panel need only concern itself with an assessment of the shoulder injuries, the Panel is of the view that the following issues remain to be determined:
(a)    how the review should proceed?
(b)    what is the nature of any left shoulder injury caused by the accident?
(c)    is that injury a threshold or non-threshold injury?
(d)    what is the nature of any right shoulder injury caused by the accident?
(e)    is that injury a threshold or non-threshold injury?

How should the review should proceed?

Rule 128 of the Personal Injury Commission Rules (the Rules) 2021 permits the Panel to determine its own proceedings (r 128(1)) and the Panel is not bound by the rules of evidence (r 128(4)) and may inquire into relevant matters as it thinks fit (r 128(5)). Rule 128(2) provides that the Panel may “determine the proceedings solely on the basis of the written application”.
The Court of Appeal said in Sydney Trains v Batshon:[38]
“[41] Under the motor accidents legislation, the default position where there is review of a medical assessment is that the review “should generally include a re-examination of the claimant”, especially where a party objects to the review being conducted on the papers, unless there is no dispute, ambiguity or uncertainty as to the relevant clinical findings: see cl 4(a)(i) and (ii) of the “Review Panel Practice Note 3/2005”, reproduced in Partridge v IAG Ltd t/as NRMA Insurance [2019] NSWSC 127 at [36]. Importantly, the review “is not limited to a review only of that aspect of the assessment that is alleged to be incorrect”, but rather “is to be by way of a new assessment of all the matters with which the medical assessment is concerned”: Motor Accidents Compensation Act 1999 (NSW), s 63(3A); Motor Accident Injuries Act 2017 (NSW), s 7.26(6).”
[38] [2021] NSWCA 143 Leeming JA (with White JA and McCallum agreeing).
The case of Batshon concerned a workers compensation medical assessment matter dealing with whole person impairment. Paragraph 41 is an observation of what happened in motor accident matters occurring before 1 December 2017 and a practice note from 2005 is referenced. The case does not mandate a re-examination in every motor accident case but talks of the “default position” which “generally applies” and would apply if a party objected to an assessment on the papers. The observations of the judge also suggest the option of no re-examination where there is no dispute, ambiguity or uncertainty about findings.
Batshon concerned a decision from the Workers Compensation Commission and not the Commission and of course did not need to consider rule 128.
In the report and directions document issued to the parties after the first teleconference in this matter, the Panel advised the parties:
“If the parties agree that the only injuries for it to consider are the left and right shoulders, the Panel considers a re-examination of the claimant is not required because a review of the actual radiology is likely to be sufficient and an assessment on the papers could be done.”
The Panel invited submissions from both parties in respect of any of the matters raised in the report and directions document but received none.
The Panel met again on 15 August 2023 to discuss the proceedings and the issues in dispute. The Panel considered whether a re-examination of the claimant was required or whether the proceedings could be determined on the papers.
It is the Panel’s decision that the proceedings can be determined on the basis of the written documentation for the following reasons:
(a)    the parties agreed to limit the injuries that need to be assessed (see paragraphs 36 and 38);
(b)    neither party has submitted that a re-examination is required;
(c)    there is a good and consistent history from the claimant of her pre-accident complaints and her post accident symptoms;
(d)    there are excellent and comprehensive treatment records from both before and after the accident;
(e)    both parties have had the claimant examined by medico-legal experts;
(f)    there is radiology from both before the accident and after the accident, and Medical Assessor Oates has been able to view the digital images, and
(g)    the issues in dispute between the parties are limited.

What shoulder injuries were caused by the accident?

Left shoulder injury

The claimant submits that the 6 July 2020 ultrasound[39] identified a partial thickness bursal surface tear of the supraspinatus tendon caused by the accident and that the 23 July 2020 MRI revealed two tears of the left labrum and that an MRI of 30 September 2020 showed a SLAP lesion. The claimant says this pathology was caused by the accident.
[39] Reported on 7 July 2020 and found at page 395 of A1.
The insurer says that at the time of Medical Assessor Cameron’s assessment the claimant has not been diagnosed with a SLAP tear following the accident and that the claimant’s injuries are soft tissue only.
Dr Powell diagnosed a soft tissue injury on a background of underlying rotator cuff pathology (tendinopathy and labral degeneration).
Dr Bodel diagnosed “rotator cuff pathology in the region of the left shoulder”.
The pre-accident ultrasound images of 10 February 2017 (performed by PRP imaging) were not available, but the report[40] indicated mild degenerative changes only, including bursitis and tendinopathy but no visible tears. Medical Assessor Oates obtained access to the post-accident shoulder radiology and has had the benefit of viewing the post-accident ultrasound images from 6 July 2020. Medical Assessor Oates agrees with the report and is of the view it clearly reveals a partial thickness surface tear of the anterior fibres of the supraspinatus tendon at the sub-acromial/subdeltoid bursa.
[40] Page 396 of A1.
The Panel notes that comparing say ultrasound images to MRI scans is not as ideal as comparing one ultrasound with another ultrasound. Comparing two ultrasound scans enables a true and fair comparison to be made. Medical Assessor Oates reported to the Panel that the post-accident ultrasound clearly demonstrates there is new pathology that has developed since the February 2017 ultrasound.
The MRIs of both 23 July and 30 September both showed a tear in the left shoulder labrum and a tear in the right shoulder labrum. Medical Assessor Oates agrees with the findings of these reports.

The test of causation

In Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance [2021] NSWSC 804, Kinchela. Justice Walton set aside the decision of a Medical Review Panel in a “minor injury” dispute and a question of causation in respect of an amputated toe. It was found that the Review Panel had denied the claimant procedural fairness relying on articles not provided to the parties to enable them to make submissions in relation to those articles. In relation to causation, at [40], his Honour said:
“The second defendant failed to apply the correct test of causation as set out in the relevant Guidelines informed by s 5D of the Civil Liability Act 2002 (NSW) and the common law. As result, the second defendant failed to apply the appropriate legal test in order to discharge its jurisdictional function.”
The relevant Guidelines referred to by Justice Walton are the Motor Accident Guidelines, a single volume of 8 parts governing all aspects of the motor accident scheme including premium determination, treatment and care, permanent impairment and threshold injury.
While Part 5 of the Guidelines addresses the assessment of whether an injury is a threshold injury, there is no definition of, or guidance for the assessment of “causation” in determining what injury (threshold or non-threshold) was caused by the accident. There are provisions concerning causation in Part 6 of the Guidelines[41] which is concerned with the assessment of permanent impairment.
[41] Clauses 6.5-6.7.
Justice Wright in Briggs v IAG Limited t/as NRMA Insurance [2022] NSWSC 372 Briggs (no 2) said in a judicial review application concerning a medical review of “minor” injury:
“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.”
Considering the guidance in clauses 6.5 – 6.7, the test to be applied and the questions to be answered involves a consideration of a medical decision and a non-medical informed judgment as follows:
(c) could the accident have caused the left and right injuries alleged to be non-threshold (medical determination), and
(d) did the accident in fact cause the injury alleged to be non-threshold (non-medical determination).
This is in keeping with the approach to causation in the permanent impairment chapter of the Guidelines, the provisions of the Civil Liability Act 2002 and the approach of the courts noting for example the High Court’s judgment in the lung cancer case of Amaca v Ellis.[42] In that case the Court determined that in circumstances where one substance “can” (on the basis of epidemiological evidence) cause an injury, causation will only be established if it is shown that it “did” cause the injury assessed on the balance of probabilities.
[42] Amaca Pty Limited v Ellis; The State of South Australia v Ellis; Millennium Inorganic Chemicals Limited v Ellis [2010] HCA 5.
The Panel notes the unchallenged mechanism of accident:
(a)    high speed (100 – 110 kmph);
(b)    the claimant was in the left passenger seat and it was this side of the car that impacted with the rear of the parked vehicle;
(c)    the claimant was wearing a seat belt which was placed over her left shoulder;
(d)    the claimant’s airbags went off and she wrangled with them as she got out of the car, and
(e)    the claimant had turned in her seat talking to those in the rear seats and when she turned back the collision was imminent, and she put her hands out in front of her.
It is the clinical judgment of the Medical Assessors on the Panel that the above mechanism could have caused the bursal, labral and ligament tears seen in the claimant’s left shoulder radiology. The speed of the impact was significant. If the claimant had her arms outstretched or she was in the process of stretching, her arms would have received significant force from both the collision and the airbag deploying which would have been transferred to her shoulders. The seat belt over her shoulder would have exerted a significant holding force while her unrestrained right shoulder would have meant rotational forces were transferred to the left shoulder.
The medical members of the Panel have no doubt that the mechanism of this accident could have caused the injury to the claimant’s left shoulder and in particular the bursal, labral and ligament tears seen on radiology dated July and September 2020.
The Panel is satisfied that the accident did cause the left shoulder injuries and in particular bursal, labral and ligament tears for the following reasons:
(a)    the claimant has had previous left shoulder symptoms, these were investigated and treated. The investigations resulted in a diagnosis of bursitis (inflammation of the left shoulder bursa) and tendinopathy (inflammation of the supraspinatus tendon) but no tears of any ligament, tendon, bursa or labrum were reported. The claimant does not appear to have any treatment for it since February 2017;
(b)    the claimant says she has had left shoulder symptoms since the accident;
(c)    the first mention of specific left shoulder symptoms in Dr Reid’s notes occurs on 29 November 2019, seven weeks after the accident. The claimant had other distracting injuries before that time;
(d)    the claimant has been consistent in her complaints of neck and thoracic pain since the accident, and much of the investigation and treatment occurring in the early months after the accident was focussed on that;
(e)    the claimant had a significant seat belt injury with bruising not yet resolved five or six weeks after the accident and was medicated with analgesics which in the clinical judgment of the medical assessors is likely to have masked pain including her shoulder pain, and
(f)    it is the clinical experience of the medical members of the Panel that shoulder symptoms may not become prominent until a person resumes normal activities of daily living. The claimant was hospitalised and inactive the night of the accident. She then remained in the Grafton area before returning home. Ms Gilbey had significant seat belt bruising and limited neck movement and it is likely she was not moving her left shoulder normally as a result until the bruising subsided.

FINDINGS

The Panel is satisfied that the claimant sustained in the accident a partial thickness surface tear of the anterior fibres of the supraspinatus tendon at the sub-acromial/subdeltoid bursa in her left shoulder. The Panel is also satisfied that the claimant sustained a tear of the labrum of her left shoulder in the accident.
The Panel notes Dr Powell had diagnosed an aggravation injury. The Panel agrees that the claimant had degenerative changes in her shoulders before the accident, but the Panel accepts that the claimant sustained a new injury in addition to the degenerative changes already present.
The Panel also notes that Dr Bateman referred to “minor” labral pathology in the shoulder and that radiology reports refer to “no major rotator cuff” pathology. Whether pathology is minor and small or major and large is not the question for this Panel. The Panel is required to decide whether an injury is threshold or non-threshold in accordance with the statutory definition.
Section 1.6(2) provides that a complete or partial rupture of tendons, ligaments menisci or cartilage is not a soft tissue, threshold, injury for the purposes of the MAI Act.
The Panel has found that the claimant sustained a partial thickness tear of the supraspinatus tendon. That injury is a partial rupture of a tendon and is not a threshold injury.
The Panel has also found that the claimant sustained a tear of the labrum. The labrum is a fibrous cartilage that surrounds the head of the humerus bone. A tear of it is a partial rupture of cartilage and is not a threshold injury.
Because of these findings, the Panel does not consider it necessary to address causation of the right shoulder labral tear other than to repeat that the labrum is a soft tissue of fibrous cartilage and that any tear of it, partial or complete is, if caused an accident, not a threshold injury for the purposes of the MAI Act.
As the Panel has arrived at a different outcome to Medical Assessor Cameron, it follows therefore that his certificate must be revoked, and a fresh certificate issued.

[2023] NSWPICMP 403

21 August 2023