Gulic v QBE Insurance (Australia) Limited
[2025] NSWPICMP 284
•24 April 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Gulic v QBE Insurance (Australia) Limited [2025] NSWPICMP 284 |
CLAIMANT: | Milos Gulic |
INSURER: | QBE Insurance (Australia) Limited |
REVIEW PANEL | |
MEMBER: | Terence Stern OAM |
MEDICAL ASSESSOR: | Drew Dixon |
MEDICAL ASSESSOR: | Thomas Rosenthal |
DATE OF DECISION: | 24 April 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); threshold injury dispute; physical injury; Medical Assessor (MA) considered the injuries to the cervical spine, left shoulder, right shoulder, thoracic spine, lumbar spine, right knee, and left knee; MA found that the injuries to the cervical spine, lumbar spine, and bilaterial knees were caused by the motor accident and threshold injuries; re-examination; Review Panel found that the injuries to the cervical spine, lumbar spine, and right knee were caused by the motor accident and were threshold injuries; Review Panel found that the injury to the left knee was caused by the motor accident and a non-threshold injury; Held – Review Panel found left knee was not a threshold injury; MAC revoked; new certificate issued. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the determination of Medical Assessor Raymond Wallace of · Left Knee and substitutes the determination that the injury to the left knee was a non-threshold injury for the purposes of the Act. 2. The Review Panel confirms the Certificate of Medical Assessor Raymond Wallace of |
STATEMENT OF REASONS
INTRODUCTION
The Claimant, Milos Gulic (Mr Gulic), was injured in a motor vehicle accident (the Accident) on 23 January 2022.
Mr Gulic was wearing a seatbelt, his vehicle stopped at a red light when it was hit with some force from behind and Mr Gulic was apparently pushed five metres down the road. The airbags did not deploy, and neither the police nor ambulance attended the scene.
The vehicle was still driveable after the Accident, and Mr Gulic drove home after exchanging details with the Insured driver.
Mr Gulic alleges that he sustained injury to his cervical, thoracic, and lumbar spine areas, to his left and right shoulders, and to his left and right knee.
Medical Assessor Raymond Wallace was asked to and did assess the claimant for the Personal Injury Commission (the Commission) on 28 May 2024 and he found that the following injuries:
· Cervical Spine;
· Lumbar Spine;
· Bilateral Knees
were all caused by the Accident but were Threshold Injuries for the purposes of the Motor Accident Injuries Act 2017 (the Act).
A medical dispute about whether Mr Gulic’s injuries were threshold injuries has arisen in connection with his claim and Mr Gulic referred that dispute to the Commission for assessment.
On 6 June 2024 Medical Assessor Wallace certified that the injuries to the cervical spine, lumbar spine, and bilaterally to the knees were all Threshold Injuries.
QBE Insurance (Australia) Limited (the Insurer) lodged an application with the Commission seeking a review of the Medical Assessor’s decision.
On 15 August 2024, 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. The delegate convened this Review Panel (the Panel) to conduct the Review.
LEGISLATIVE FRAMEWORK
Jurisdiction
Mr Gulic’s claim is governed by the provisions of the Act. This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the Act, there are some disentitling provisions and limits to the amount and extent of benefits and compensation available. One of these restrictions is that if the only injuries sustained by the injured person are “threshold” injuries, the injured person cannot receive statutory benefits beyond 26 weeks after the accident and cannot recover damages
Threshold Injury
A threshold injury is defined in s 1.6(1) of the Act as a “soft tissue injury”. Section 1.6(2) of the Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
If a person injured in a motor accident sustains soft tissue injuries only then, unless one of those soft tissue injuries falls within the exclusion contained in s 1.6(2) (highlighted in italics in paragraph 9 above), the injured person’s statutory benefits cease in accordance with ss 3.11 and 3.28 of the Act.
Section 1.6(4) provides that regulations may be made to deem a specified injury as a soft tissue injury or not a soft tissue injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) says that “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” is a threshold injury.
Clause 5.8 of the Motor Accident Guidelines (the Guidelines) defines radiculopathy and adopts the method of assessment provided for in the whole person impairment chapter of Part 6 of the Guidelines. Clause 5.9 then provides:
“Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury”.
In summary, if the person injured in the car accident sustains a spinal nerve injury this is a threshold injury unless that particular nerve injury manifests in two of the five signs of radiculopathy.
Method of Assessment
Part 5 of the Guidelines contain the procedure for assessing whether an injury resulting from the motor accident is a threshold injury for the purposes of the Act. In respect of the medical assessment of whether an injury is a threshold injury or not, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clause 5.4 suggests that the method of assessment set out above appears to be directed to the insurer and the medico-legal or other experts retained by the insurer.
There are no other provisions with respect to the assessment of threshold injuries by claimants, their medio-legal experts or Medical Assessors. The Panel is proceeding on the basis that the provisions in Part 5 apply in this Review.
Dispute resolution
If there is a dispute about whether an injured person’s injuries are threshold injuries or not, that matter is declared a medical assessment matter which may be referred to the Commission for determination.
Chapter 7, Division 7.5 of the Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Home’s, further medical assessments and the Review of medical assessments by this Panel.
Applications for review of a medical assessment under s 7.26 are made to the President of the Commission on grounds that the assessment “was incorrect in a material respect” (s7.26(1)). If the President, or his delegate is satisfied “there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect” then the President arranges to the application to be referred to a review panel consisting of a member of the Commission and two medical assessors (s 7.26(2) and (2B)).
The review is not necessarily confined to the issues raised in the application (or the reply) but is “a new assessment of all the matters with which the medical assessment is concerned” (s7.26(3A)).
Rule 128 of the Personal Injury Commission Rules 2021 (the Rules) permits the Panel to determine its own proceedings and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.
ASSESSMENT UNDER REVIEW
Medical Assessor Wallace examined Mr Gulic on 28 May 2024 and issued his Certificate on 6 June 2024.
Medical Assessor Wallace at [3]-[4] summarises the submissions from both parties.
Medical Assessor Wallace at [5]-[6] summarised the documents which he received and in particular, the opinions of Dr Dugal, radiologist, and Dr Chien, orthopaedic surgeon.
Medical Assessor Wallace outlines the history of the accident, symptoms, and treatment at [8]-[14]:
[8] Pre-accident medical history and relevant personal details - Mr Gulic is 58 years of age and worked as a self-employed full-time Boiler Maker/Welder since 2014. He notes no previous history of significant injuries. He has had no medical problems. He has had previous eye laser for treatment of a glaucoma. He is currently taking no other medication. He has no known allergies. He was born in Croatia and came to Australia in 1999. He currently lives alone in Riverwood.
[9] History of the motor accident - Mr Gulic was involved in a motor vehicle accident on 23 January 2022. At that time, he was a driver and wearing a seat belt in a Holden Rodeo utility travelling in Northmead. Whilst his vehicle was stationary at a traffic light intersection at a red light, another utility collided with the rear of his vehicle and pushed his vehicle some 5 metres forwards.
[10] History of symptoms and treatment following the motor accident - Police and ambulance did not attend the scene. Mr Gulic exchanged details with the other driver and then drove home. The following day, he was reviewed by his Local Medical Officer complaining of pain at his neck, shoulders, back and left knee. He was prescribed Panadol analgesic medication. He was subsequently referred for physiotherapy completing 4 programs of 8 sessions of physiotherapy. He has had no other treatment.
[11] Details of any relevant injuries or conditions sustained since the motor accident - Mr Gulic suffered no relevant injuries or conditions since the motor vehicle accident.
[12] Current symptoms - At his cervical spine, he notes intermittent aching pain at the C5, C6 and C7 spinous processes radiating to the superior border of the trapezius muscles bilaterally with no radiation to his shoulders or arms. The pain is worse at night or on rotating his head and is relieved by Panadol or rest. He notes no paraesthesia or numbness at his upper limbs. He complains of weakness at his bilateral upper limbs and stiffness at his cervical spine. At the lumbar spine, he notes a constant aching pain at the L5 spinous process radiating to the paravertebral regions bilaterally at this level, worse on the left side with radiation of pain into the posterior aspects of his thighs to the level of the knees bilaterally. The pain has no precipitating factors and is relieved by medication. He notes no paraesthesia or numbness at his lower limbs. He complains of weakness at his bilateral lower limbs and stiffness at his lumbar spine. At his left knee, he notes intermittent aching pain at the peripatellar region. The pain is worse on walking down stairs or running and is relieved by rest. He notes no swelling, locking or giving way or stiffness at his left knee. His right knee symptoms have resolved.
[13] Current and proposed treatment - Mr Gulic is currently continuing with the use of Panadol analgesic medication.
[14] Clinical examination - Mr Gulic is 173cm tall and severely overweight with truncal obesity at 118kg with a BMI of 39.
Medical Assessor Wallace summarised the relevant documentation and materials at [16]-[17]:
[16] Summary of relevant documentation - I note the report of Specialist Radiologist, Dr Dugal dated 30 May 2023. Dr Dugal has concluded, based on the investigation findings, that the pathology identified at the left knee and lumbar spine predated the index motor vehicle accident. I note the report of Dr Chin, Orthopaedic Surgeon dated 6 June 2022. Dr Chin concludes: “Based on the clinical findings, Mr Gulic would have substantially aggravated his knee (left) from the injury. The axial loading force to his knee would have further torn the menisci as well as caused further chondral injury.” I further note the report of Dr Chin dated 5 September 2022. Dr Chin concludes that: “The mechanism of injury is consistent with left shoulder pathology occurring from the posterior portion of the humeral head impacting the posterior glenoid labrum. This occurs when the hand is firmly placed on the steering wheel and there is a sudden forward force or reciprocal posterior force to the body. For the left, a sudden forceful contraction of the rotator cuff may cause the pathology.”
[17] Summary of relevant radiological and medical imaging and other investigations Instructions for Summary of relevant radiological and medical imaging and other investigations Examination of his bilateral shoulders shows no swelling or deformity. He has an active range of movement at his bilateral shoulders of flexion 130°, extension 20°, abduction 120°, adduction 20°, external rotation 40° and internal rotation 20°. At the left shoulder, there is tenderness at the anterior aspect of the rotator cuff. His biceps tendons are intact. He has normal strength in abduction and external rotation. Examination of the right shoulder shows tenderness at the anterior aspect of the rotator cuff. His biceps tendons are intact. He has normal strength in abduction and external rotation.
Medical Assessor Wallace set out his determinations at [18]-[19]: -
[18] Diagnosis and reasons 23 January 2022 - Motor vehicle accident
1. Musculoligamentous strain cervical spine.
2. Aggravation of pre-existing multilevel degenerative cervical spondylosis.
3. Musculoligamentous strain lumbar spine.
4. Aggravation of pre-existing multilevel degenerative lumbar spondylosis.
5. Soft tissue injury left knee.
6. Aggravation of pre-existing degenerative osteoarthritis left knee.
7. Soft tissue injury right knee - now resolved.
The diagnosis is based on the history, examination and investigation findings at the time of review on 28 May 2024.
[19] Causation and reasons Mr Gulic suffered injuries at his cervical spine, lumbar spine and bilateral knees as a result of the index motor vehicle accident of 23 January 2022. There is no objective medical evidence that Mr Gulic suffered any direct injuries to his bilateral shoulders or thoracic spine at the time of the index motor vehicle accident. He does not complain of any current symptoms at his bilateral shoulders or thoracic spine. The mechanism of injury described of a rear end motor vehicle collision is not consistent with being the cause of any significant direct pathology at his bilateral shoulders or thoracic spine. His right knee injury has resolved.
Medical Assessor Wallace concluded that Mr Gulic had sustained a soft tissue injury to the right knee, and soft tissue injuries to his cervical spine, lumbar spine and bilaterally to his knees.
There was no evidence of radiculopathy at his upper or lower limbs upon clinical examination.
Medical Assessor Wallace concluded at [23] that the following injuries were threshold injuries:
•Cervical spine
•Lumbar spine
•Left knee
•Right knee
SUBMISSIONS
Claimant’s submissions of 23 February 2024
The Panel briefly summarises Mr Gulic’s submissions of 23 February 2024 by way of reference to paragraph numbers: -
[1] Mr Gulic was involved in a motor vehicle accident on 23 January 2022, sustaining multiple physical and psychiatric injuries.
[2] On 17 May 2022, the Insurer accepted liability for statutory benefits after 26 weeks and acknowledged that Mr Gulic sustained non-threshold injuries, advising he may lodge a common law claim.
[3] However, on 8 September 2022, the Insurer issued another notice denying liability, alleging Mr Gulic only sustained threshold injuries.
[4] An internal review of the decision was requested on 24 April 2023.
[5] On 12 May 2023, following the review, the Insurer accepted that Mr Gulic sustained non-threshold injuries and accepted liability.
[6] On 15 May 2023, Mr Gulic submitted a common law damages claim.
[7] On 14 August 2023, the Insurer issued two separate liability notices, denying liability for common law damages and statutory benefits after 26 weeks, both on the basis that the claimant sustained threshold injuries only.
[8] Mr Gulic submits that the Insurer’s conduct has been unacceptable and in breach of its duty to act in good faith under section 6.3 of the MAI Act.
[9] Mr Gulic submits many of the documents relied upon by the Insurer to again deny the claimant’s claim on 14 August 2023 were available to them at the time the internal review was requested on 24 April 2023 and/or at the time they once again accepted liability on 12 May 2023.
[10] The only additional evidence was obtained on 30 May 2023—reports by Dr Tony Antoun, GP, and Dr Tej Dugal, radiologist, both from the Medical Assist Network.
[11] Dr Antoun’s report included MRI reports and correspondence with radiologists regarding Mr Gulic’s left knee and lumbar spine.
[12] Mr Gulic notes on page 5 of his report, Dr Antoun noted that the lateral meniscus tear was recent but the timing was difficult to determine and required clinical correlation.
[13] Both radiologists cited by Dr Antoun noted causation was “difficult to determine” and “need clinical correlation”.
[14] Dr Antoun concluded there were no traumatic findings and deemed the injuries to be soft tissue under MAIA 2017 criteria.
[15] Mr Gulic submits these correspondences are hearsay, inadmissible, and should not have been relied upon.
[16] Mr Gulic submits that his symptomology and clinical presentation are consistent with documented injuries in treatment records.
[17] In his 6 June 2022 report, orthopaedic surgeon Dr Calvin Chien noted acute bilateral meniscal tears, bone bruising, and opined that the accident substantially aggravated Mr Gulic’s knee injuries.
[18] In his 5 September 2022 report, Dr Chien also attributed Mr Gulic’s left shoulder pathology to the accident’s mechanics.
[19] Mr Gulic submits his symptoms and clinical presentation remain consistent with sustained injuries, and Mr Gulic submits the Insurer has provided no evidence to dispute the existence of non-threshold physical injuries.
[20] Mr Gulic suffered the following injuries:
i.Cervical spine: soft tissue injury, disc degeneration, radiculopathy, pain, reduced range of movement
ii.Upper thoracic spine: soft tissue injury, compression fracture, pain, reduced range of movement
iii.Right shoulder: soft tissue injury, labral tear, pain, reduced range of movement
iv.Left shoulder: soft tissue injury, bursal fraying, pain, reduced range of movement
v.Lumbar spine: radiculopathy, disc extrusions, canal narrowing, nerve impingement, pain
vi.Left knee: meniscal tears, pain, reduced range of movement
vii.Right knee: soft tissue injury
viii.Psychological injury: PTSD and other undiagnosed non-threshold injuries per DSM-5
[21] Mr Gulic submits that several of the abovementioned injuries are non-threshold injuries under the MAI Act and the Guidelines.
Claimant’s submissions of 5 July 2024
The Panel briefly summarises Mr Gulic’s submissions of 5 July 2024 by way of reference to paragraph numbers: -
[1–2] Mr Gulic was injured in a motor vehicle accident on 23 January 2022. A dispute arose over whether the injuries were threshold or non-threshold under the Act.
[3–5] The dispute was referred to the Commission, with Medical Assessor Raymond Wallace examining the claimant on 28 May 2024 and issuing a certificate on 6 June 2024. Mr Gulic seeks a review of the assessment under s7.26 of the Act.
[6] The claimant contends there is reasonable cause to suspect the certificate contains material error and seeks review under s 7.26 of the Act.
[7] –[9] Mr Gulic sets out the Statutory test and case law upon which his submissions rely.
[10] Mr Gulic submits material error of the assessment on two main grounds:
(A) Failure to engage with claimant’s argument.
(B) Failure to disclose path of reasoning and/or failure to provide adequate reasons.
A. Failure to engage with claimant’s argument.
[11–13] Mr Gulic submits that Medical Assessor Wallace failed to address his submissions of 23 February 2024, particularly concerning the admissibility of the Medical Assist Network reports, which were argued to be hearsay. Despite relying on those reports in his certificate, Medical Assessor Wallace did not comment on their admissibility or respond to the claimant’s arguments.
[14–15] Mr Gulic referenced an admission by Dr Antoun that the “lateral meniscus tear although recent, was difficult to determine the time frame. And needed clinically correlation”. Mr Gulic argued this correlation was provided by treating doctors, including Dr Chien and physiotherapists, all attributing the injury to the accident.
B. Failure to Provide Reasons / Disclose Reasoning
[16–18] Mr Gulic submits in AAI Ltd v Fitzpatrick [2015] NSWSC 1108, and Wingfoot v Kocak [2013] HCA 43, an Assessor’s failure to give required reasons is of itself a sufficient basis for concluding that there is reasonable cause to suspect that the assessment was incorrect in a material respect.
[19–22] Mr Gulic submits that Medical Assessor Wallace’s conclusion, that a rear-end collision could not have caused shoulder pathology, lacked reasoning and failed to consider contrary expert evidence from Dr Chien. If he disagreed with Dr Chien, he did not explain why, despite accepted mechanisms of injury being recognised in the Commission precedents, e.g.:
·Jarrar v GIO [2023] NSWPICMP 519
·Kovacs v AAMI [2023] NSWPICMP 627
·Al Kalash v GIO [2023] NSWPICMP 249
·Hilyander v NRMA [2022] NSWPICMP 465
[23] Mr Gulic further submits that a lack of symptoms at the time of the assessment is irrelevant and not a criteria under the Act or Guidelines for determining threshold injury.
[24–25] Mr Gulic submits that, regarding lumbar spine injuries, the Medical Assessor concluded soft tissue injury and spondylosis aggravation but did not explain why more severe pathology (e.g. annular tears, disc extrusions) was excluded. This conclusion relied on the Medical Assist Network report, quoting a radiologist who said the disc extrusion timing should be clinically correlated.
[26–27] Mr Gulic argues that Medical Assessor Wallace failed to justify preferring the Medical Assist Network’s opinion over treating providers, despite Mr Gulic’s clinical presentation and treatment history supporting causation. Mr Gulic submits there was no evidence of pre-existing symptoms.
The Panel has also read the submissions of the claimant dated 23 February 2024.
Insurer’s reply submissions of 18 March 2024
The Panel briefly summarises the Insurer’s reply submissions of 18 March 2024 by reference to paragraph numbers: -
[1]Mr Gulic has sought medical assessment for the purposes of determining whether he suffered a “threshold injury” to his neck, thoracic spine, right shoulder, left shoulder, lumbar spine, left knee, right knee as well as psychological injuries.
[2]-[4] The Insurer sets out the background of the Accident and dispute.
[5]-[8] The Insurer sets out the legislation in the MAI Act and the Guidelines upon which it refers to.
Psychological Injuries
[9]The Insurer submits Mr Gulic’s psychological injuries are minor per s 1.6(3), which defines minor injuries as those not constituting a recognised psychiatric illness.
[10]The Guidelines specify that acute stress disorder and adjustment disorder are minor psychological injuries.
[11]Causation is defined as a factor that contributes to a medical condition per the AMA4 Guides glossary.
Alleged Cervical Spine Injury
[12] Mr Gulic submits the Accident caused “cervical spine (soft tissue injury, aggravation of multilevel degenerative disc disease/degenerative changes, aggravation of cervical spondylosis, C4/5 thecal sac compression, cervical radiculopathy, pain, reduced range of movement)”
[13] Mr Gulic relies on records from Dr Eric Lim, who began treatment on
16 February 2022 and diagnosed Mr Gulic with cervical sprain.[14] A 26 July 2022 MRI of Mr Gulic revealed:
“Mild to moderate degenerative spondylosis of the mid and lower cervical spine. There is active degenerative disc disease located at the C4-5, C5-6 and C6-7 levels. (Modic type 1 degenerative changes located within the anterior-inferior endplates of C4, C5 and C6.”
[15] The Insurer submits these are soft tissue injuries under s 1.6 of the MAI Act and only a temporary aggravation of pre-existing pathology.
[16] The Insurer submits an aggravation of underlying pathology is a soft tissue injury within the definition in s 1.6(2) of the MAI Act.
Alleged Upper Thoracic Spine Injury
[17] Mr Gulic alleges the accident caused upper thoracic spine “(soft tissue injury, aggravation of multilevel degenerative disc disease/degenerative changes, compression fracture/deformity of the body of T1, pain, reduced range of movement)”
[18] The Insurer submits that treating physiotherapist Linda Tran recorded no thoracic spine symptoms, only neck, low back, and knee issues.
[19] The Insurer submits that reports from Dr Chien on 6 June 2022 and
5 September 2022 make no mention of thoracic injury.[20] A 26 July 2022, a cervical MRI of the claimant noted
“There is a large age indeterminate Schmorl node located within the superior endplate of T1. Large area of oedema located within the body of T1 located adjacent to the above described Schmorl’s node possibility due to inflammation of the schmorl’s node versus age in determinate compression fracture/deformity of the body of T1. No evidence of loss of the anterior body height of T1”
[21] The Insurer submits there is no evidence linking the Schmorl’s node or T1 findings to the accident, and no proof of accident-related thoracic injury.
Alleged Shoulder Injuries
[22] Mr Gulic relies on records from Dr Lim and a report from Dr Chien dated
5 September 2022 to support shoulder injury claims.[23] A 26 July 2022, an MRI of Mr Gulic’s right shoulder revealed:
“There is a large multiseptated ganglion cyst located just inferior to the right glenohumeral joint/6 O’clock position of the Glenoid labrum possibly emanating from a tear of the 6 O’ clock position of the glenoid labrum or from the inferior aspect of the right glenohumeral joint. An MRI arthrogram examination of the right shoulder could be performed for further assessment of the above findings if clinically indicated. Moderate to marked hypertrophic degenerative osteoarthritis of the right acromioclavicular joint. Moderate to large size areas of oedema located within the lateral aspect of the right clavicle and medial aspect of the right acromion process adjacent to the right acromioclavicular joint”
[24] A 27 July 2022, an MRI of Mr Gulic’s left shoulder revealed:
“There are features of supraspinatus and infraspinatus tendinosis without any discrete thickness or full thickness tear. NO significant rotator cuff muscle bulk atrophy. AC joint capsular hypertrophy/degenerative OA changes with indentation at the supraspinatus musculotendinous junction. Minor bursal thickening. Correlate clinically if patient has any impingement symptoms and consider imaging -guided injection. There is intra-articular long head of biceps stenosis possibility secondary to localised irritation at site of cortical irregularly in the proximal bicipital groove. Features of chronic superior labral injury”
[25] The Insurer submits that the above-mentioned MRI scans do not reveal any labral tear, and instead suggest pre-existing, age-related changes.
[26] Dr Chien, in his report of 5 September 2022, diagnosed Mr Gulic with “right posterior labral tear – secondary adhesive capsulitis”. At page 2 of the report, the doctor then says “an MRI scan demonstrate left biceps tendinopathy with mild cuff tendinosis. For the right there is a posterior labral tear”.
[27] The Insurer submits:
(a)The MRI scans of the 26 July 2022 and 27 July 2022 do not reveal any labral tear as claimed by the Claimant.
(b)The MRI scans confirm that the Claimant suffered from significant pre-existing degenerative changes in the left and right shoulder.
(c)The Claimant has not annexed any other radiological imaging to confirm that after 26 July 2022 and 27 July 2022, the MRI scans revealed labral tear as claimed.
(d)It is unclear what MRI scan Dr Chien is referring to in his report of
5 September 2022.(e)It is unclear whether Dr Chien had reviewed the MRI scan of the
26 July 2022 and 27 July 2022. The Insurer submits there is no documented evidence proving the accident caused labral tears.[28] The Insurer submits that it should not be accepted that the accident caused a labral tear to the left and right shoulder because the Claimant has not annexed any documented evidence and in particular any evidence to dispute the findings of the 26 July 2022 and 27 July 2022 MRI scans.
Alleged Lumbar Spine Injury
[29] Mr Gulic alleges the accident caused “lumbar spine (soft tissue injury, lumbar radiculopathy, multilevel disc protrusion/extrusions, lumbar spondylosis, aggravation of degenerative changes, moderate to severe central canal narrowing at L3/L4 with crowding of the cauda equina, impingement of L5/S1 nerve root secondary to extruded disc material at L5/S1, pain, reduced range of movement.”
[30] An MRI of Mr Gulic’s lumbar spine on 24 March 2022 revealed:
“There is multilevel, multifactorial lumbar spondylosis. Moderate- to serve central canal narrowing at T/npsp; L3/4 with crowding of the cauda equina. There is impingement of the descending right S1 nerve root at the level of the L5/S1 secondary to extruded disc material”
[31] The Insurer relies on reports from Dr Antoun and Dr Dugal, and submits that Mr Gulic suffered soft tissue injuries to his lumbar spine.
[32] Dr Antoun and Dr Pereira agreed the lumbar pathology was degenerative in nature and that there was no evidence of any traumatic features related to the lumbar spine
[33] Dr Dugal opined:
“On balance, in my opinion, given the multiple levels of disc pathology and disc bulges, annular tears at L4/L5, and L5/S1 with a right paracentral focal disc’s protrusion right L5/S1 without periodical signal alteration is likely degenerative in nature and longstanding. Given the time frame related to the motor vehicle accident dated 23 January 2022, the findings are unlikely to be related to the subject accident”
[34] Mr Gulic has not submitted any evidence to disputing the findings of the 24 March 2022 MRI scan or how those findings relate to the subject accident.
[35] The Insurer submits that aggravation of underlying pathology is classified as a soft tissue injury under s 1.6(2) of the MAI Act.
Alleged Knee Injuries
[36] Mr Gulic alleges:
(a) Left knee (soft tissue injury, intrasubstance tears of the anterior horn lateral meniscus, vertical/oblique tear of the medial meniscus with extrusion of the body, meniscal tear, pain, reduced range of movement)
(b) Right knee (soft tissue injury), which is considered to be a threshold injury for the purposes of the accident. A 4 May 2022 MRI of the left knee revealed osteoarthritic changes and meniscal tears.
[37] An MRI scan of Mr Gulic’s left knee on 4 May 2022 revealed:
“There are advance osteoarthritic degenerative changes. There are meniscal tears within both the medial and lateral meniscus. There are features of strain involving the medial retinaculum where it merges with the MCL.”
[38] The Insurer relies on Dr Dugal’s opinion that these findings predate the accident.
[39] Dr Dugal recorded:
“Overall findings of the MRI of the left knee are consistent with a longstanding degenerative basis and the tears of the anterior horn of the lateral meniscus associated with parameniscal cyst and the oblique tear of the medial meniscal body and degeneration of the anterior horn with regional osteophytes in the medial femorotibial compartment are all longstanding. These changes include interosseous ganglia are also evidence in relation to the medial plateau adjacent to medial meniscal tear confirmed the findings would predate the timing of the accident and hence are unrelated to the MVA”.
Psychological Injury
[40] The Insurer submits the psychological injury caused by the Accident is a threshold injury, noting lack of contemporaneous symptoms.
[41] The Insurer submits there is insufficient evidence of a casual connection between the subject accident and the onset of psychological symptoms and notes:
(a)No police nor ambulance attended; Mr Gulic was not taken to hospital; the incident was reported to police a week later; medical attention was not sought until three weeks post-accident;
(b)The accident was not of significant severity and does not satisfy DSM-5 Criterion A for PTSD.
[42] The Insurer submits that without satisfying diagnostic criteria, Mr Gulic cannot be considered to have a non-threshold psychological injury.
[43] The Insurer further submits that in the absence of recognised psychiatric illness per DSM-5, any psychological injury is threshold under the MAI Act.
[44] The Insurer relies on psychiatrist Dr Robert Gertler’s 30 August 2022 report diagnosing adjustment disorder which is considered to be a threshold injury.
Conclusion
[45] The Insurer submits the 14 August 2023 decision should be affirmed and that Mr Gulic sustained threshold injuries.
Insurer’s treatment submissions of 18 March 2024
The Panel briefly summarises the Insurer’s reply submissions of 18 March 2024 by way of reference to paragraph numbers:
[1] Mr Gulic is seeking an assessment of whether physiotherapy treatment requested on 21 April 2023 is reasonable and necessary under the MAI Act.
[2] On 21 April 2023, the Insurer denied liability for the proposed treatment on the basis:
(a)It was not reasonable and necessary; and
(b)There was no demonstrated improvement from treatment undertaken to date.
[3] On 26 May 2023, the Insurer’s decision was affirmed on internal review.
[4] The Insurer maintains the proposed treatment is not reasonable and necessary and submits that:
(a)Mr Gulic’s Allied Health Recovery Request (AHRR) demonstrates minimal functional improvement despite 30 physiotherapy sessions; and
(b)The proposed treatment fails to observe the guiding principles outlined by SIRA’s Clinical Framework for the delivery of health services when treating individuals injured in motor vehicle accident.
On 14 August 2023, the Insurer issued an updated Liability Notice determining that Mr Gulic sustained a threshold injury under the MAI Act.
Mr Gulic subsequently applied to the Personal Injury Commission for a determination on whether his injuries are threshold injuries (Application No: M20712/24-01-01).
[5] The Insurer submits that the requested physiotherapy is not reasonable or necessary due to minimal functional improvement in Mr Gulic’s condition.
[6] The Insurer relies on the opinion of Mr John Silcock, Independent Physiotherapy Consultant, who in his report dated 24 June 2022 stated:
(a)"‘…continuing to insist that Mr Gulic requires intensive physiotherapy more than five months post injury might inadvertently reinforce perceptions of disability and reliance on external assistance that may be unhelpful"
(b)"Submitted allied health recovery request forms have not outlined treatment goals that are specific, measurable, achievable, relevant and timely. The service providers action plan outlined in allied health recovery request form number two is identical to that outlined in allied health recovery request form number one"
(c)"Submitted allied health recovery request forms have not outlined discharge expectations. Outlining discharge expectations is a requirement of a compliant allied health recovery request form. Patient education and outlining treatment expectations is an important component of treatment. This is especially the case when psychological and psychosocial factors are evident"
(d)"Submitted allied health recovery request forms have not outlined any information regarding Mr Gulic’s pre-injury recreational or fitness pursuits. This is important in all cases but is especially important when psychological and psychosocial factors have been recognised as being significant"
[7] The Insurer compares the AHRRs dated 4 July 2022 and 21 April 2023, submitting that they show minimal changes in symptoms, capacity, goals, and action plans. Key comparisons listed are driving tolerance, cervical spine ROM, goals, work capacity, home and community, and date of discharge.
[8] The Insurer submits that the comparison above demonstrates no significant functional gains and unchanged work/daily function.
[9] The Insurer further submits that Certificates of Capacity from Dr Siddiqui and Dr Dickson also reflect no change in Mr Gulic’s inability to work, despite 30 physiotherapy sessions. The action plan in all AHRRs remained the same throughout.
[10] The Insurer refers to the Clinical Framework for the Delivery of Health Services and emphasises:
(a) Principle One – Measure and demonstrate treatment effectiveness
(b) Principle Five – Base treatment on best available research evidence
[11] The Insurer submits the proposed treatment breaches Principle One as there is no demonstrated sustained benefit or improvement.
[12] The Insurer submits it also breaches Principle Five, as the treatment plan has remained unchanged despite consistent ineffectiveness.
[13] The Insurer submits that no evidence supports that further physiotherapy is reasonable and necessary, especially considering the lack of progress after 30 sessions.
[14] The Insurer submits:
(a) Mr Gulic has undergone 30 physiotherapy sessions.
(b) The Insurer submits that the records show little functional gain from these sessions.
[15] Therefore, the Insurer submits further physiotherapy would not benefit Mr Gulic and is not reasonable and necessary.
Insurer’s reply submissions of 29 July 2024
The Panel briefly summarises the Insurer’s reply submissions of 29 July 2024 by way of reference to paragraph numbers:
[1] Mr Gulic submits that the Certificate of Medical Assessor Raymond Wallace of 6 June 2024 involves a material error and seeks a review.
[2]-[3] The insurer submits that Mr Gulic’s application should be dismissed
[4]-[7] The Insurer sets out the applicable law
[8] Mr Gulic submits that the Medical Assessor failed to engage with his submissions of 23 February 2024, specifically related to the “admissibility of the reports obtained by the respondent from the Medical Assist Network on the basis that they are hearsay and should not be admissible”
[9] The Insurer submits that the basis for Mr Gulic’s submission is not related to any inconsistencies or inaccuracies of the reports, but rather that the Medical Assist Network report is hearsay. The Insurer strongly disputes this.
[10] Mr Gulic submits that Medical Assessor Wallace did not comment on the submissions regarding the hearsay nature of the Medical Assist Network reports despite confirming that he had reviewed the documents. The insurer submits that this confirms the Assessor did consider the evidence. Mr Gulic’s submission seems to be that the Assessor did not expressly agree or disagree with his legal arguments on admissibility.
[11–12] The Insurer submits that issues of admissibility and hearsay are legal questions, outside the jurisdiction of a Commission’s Medical Assessor. The Medical Assessor’s role concerns medical questions for a limited purpose, in this case, assessing whether the Claimant’s injuries were threshold injuries. The Insurer submits that Medical Assessor Wallace was entitled to independently interpret the medical evidence without ruling on its legal admissibility.
[13] The Claimant disagrees with Dr Antoun’s findings and references opinions from treating practitioners (GP, specialist, physiotherapists), but this reflects a disagreement with the conclusion rather than a genuine error.
[14] Citing Wehbe v Insurance Australia Ltd [2015] NSWSC 1506, the Insurer notes that a Medical Assessor is required to apply their own expertise and is not obliged to choose between competing arguments or cite every competing argument. The Insurer submits that Assessor Wallace reviewed all materials provided and determined the injuries were threshold injuries under the Act.
The Panel has also read the submissions of the Insurer dated 18 February 2024.
The Panel notes the Insurer said this in its submissions at [36] with respect to Mr Gulic’s claim that he had injured his left and right knees in the accident. [36-39]
RE-EXAMINATION BY THE PANEL
Medical Assessor Thomas Rosenthal examined Mr Gulic on behalf of the Panel on 11 December 2024. His findings are set out below: -
Mr Gulic attended on 11 December 2024 accompanied by a Serbian interpreter, Bratislav Stankovic (CPN4U0076). The interpreter was present throughout the interview and examination.
Mr Gulic attended for re-examination following an Application for Review of the Medical Assessment Certificate of Assessor Raymond Wallace dated 6 June 2024. Medical Assessor Wallace found the cervical spine, lumbar spine and bilateral knees were all threshold injuries for the purposes of the Act. The appeal from the claimant proposed that radiology showed evidence of non-threshold injuries.
History
Mr Gulic is a 59-year-old male who was involved in a motor vehicle accident on 23 January 2022. He was driving a Holden Rodeo and had his seatbelt on. The vehicle was stopped at a red light when it was hit with some force from behind and was reportedly pushed 5m down the road. No airbags deployed. No police or ambulance attended. The car was still drivable after the accident and he drove home after exchanging details.
The next day, he saw his GP. He said his left leg was on the clutch at the time of the accident because he had a manual vehicle and he said his knees had hit the dashboard. He had sore knees, neck, back and shoulders which he reported to his GP. He was sent for physiotherapy and x-rays. He only received short term relief from physiotherapy.
He subsequently changed doctors to the Workers Doctors. He was referred to Dr Calvin Chien, an orthopaedic surgeon. Various MRIs were performed. He did not have any injections into any joints and no surgical procedures occurred. He continued taking painkillers. Physiotherapy treatment stopped because funding from the insurer was ceased.
He said the specialist told him that his left knee was damaged and he would require a total knee replacement in the future.
Overall, the symptoms in his neck, back, shoulders and knees have got worse and he has continued to take painkillers to manage his symptoms.
He said he was working until the motor vehicle accident occurred and then he had to stop work. He is not receiving any Centrelink benefits and he is not on a Disability Support benefit. He is living off his savings.
Current Symptoms
He has neck pain and back pain which is constant. He cannot sleep. He gets very stiff if he does not move. The right side of his lower back and also his neck are particularly affected.
His left knee is painful with clicking but the right knee is also painful. The left is worse. He gets no swelling. Going downstairs is painful, particularly on his knees. He has to hang onto the handrail.
Both his shoulders are painful. The right is worse than the left. He gets pins and needles and numbness in all his fingers. He is right-handed.
After walking for 5-10 minutes he gets cramps in his legs. He is particularly concerned about the cramps in his calves. Sitting is generally OK.
The left knee gives way occasionally and he has had the occasional fall. He sometimes uses a walking stick.
Current Treatment
He takes Naprosyn about five times a week and Panadol when required but not every day.
Past Medical History
He reported no pre-existing conditions.
Occupational History
He was working as a boilermaker, building carports, self-employed which he was doing up until the Accident.
Social History
He lives in Riverwood on his own. His son assists with cleaning but he can drive short distances and go to the shops.
He likes going to the swimming pool using the sauna and spa. He does no other significant physical activity.
Investigations
He did not bring any x-rays with him.
Physical Examination
Mr Gulic appeared to sit comfortably when conversing with the interpreter for over 30 minutes. On formal examination he tended to stiffen up and there were inconsistencies and pain behaviours. He was very pain focused. He grabbed body parts as he moved them. It was difficult to get maximal ranges and consistency in movement.
At the neck he was generally tender but there was no spasm or guarding. Neck movements were all reduced at the extremes in a symmetrical pattern.
At his lumbar spine, there was no spasm or guarding. Normal lumbar lordosis. Lumbar movements were decreased by one-quarter in all directions. No asymmetry present.
He could not get up on his heels or toes but he do a half squat. He kept grabbing various body parts during the movements.
His straight leg raise was 50° on both sides. Lasegue’s signs were negative.
There were no neurological deficits in his lower limbs.
There was a lot of grimacing and grabbing on attempts to move the knees but when distracted in a sitting position he could flex his knees to 110° with 0° of extension. Ligaments were intact. Alignment was normal. Medical Assessor Rosenthal did not detect any retropatellar crepitus.
Thigh measurements were 57cm on the right and 56.5cm on the left, 10cm above the superior patellar pole. Calf measurements were 46cm on both sides, 10cm below the inferior patellar pole.
There was no indication of any wasting in his upper or lower extremities.
There were no neurological deficits in the upper limbs. Muscle, power, tone and reflexes were normal and there were no sensory changes.
Upper arm measurements were 37cm on the right and 36cm on the left, 10cm above the olecranon. Forearm measurements were 33cm on the right and 31.5cm on the left, 10cm below the olecranon.
The shoulders had restricted movement which was inconsistent and difficult to measure. He would not abduct or flex past 100°. There was a lot of grabbing and grimacing. Assessor Rosenthal could not get an accurate range of shoulder movements with a goniometer due to the pain behaviours and inconsistencies.
He weighed 115kg. He was 172cm tall.
The inconsistencies were brought to his attention through the interpreter. He said he has pain everywhere and it is affecting his movements. When he tries to move the pain increases.
Discussion
Mr Gulic was involved in a motor vehicle accident on 23 January 2022 when his Holden Rodeo was rear-ended. He has sustained soft tissue injuries to his neck, back and knees. The shoulder presentation now appears to be related to a degenerative condition most likely unrelated to trauma from the motor vehicle accident.
Medical Assessor Rosenthal was unable to view the radiology.
In terms of the dispute, the MRI of the left knee had shown meniscal tears. His left knee reportedly struck the dashboard and became symptomatic. The left knee had previously been asymptomatic. On the balance of probabilities, he extended a pre-existing meniscal tear in his left knee which then became symptomatic. This classifies the left knee as a non-threshold injury.
In terms of any shoulder pathology, Medical Assessor Rosenthal did not accept that there were any traumatic tears to his rotator cuff. The shoulder symptoms were originally referred from his neck. If there were any injuries to the shoulders, they would be threshold injuries. Medical Assessor Rosenthal agreed with Assessor Wallace that the shoulder presentation was not causally related.
The injuries to his neck and back were soft tissues injuries and aggravation of pre-existing degenerative changes. There was no evidence of radiculopathy in regard to his cervical spine or lumbar spine injuries.
SECOND MEETING OF THE PANEL
The Panel convened on 28 January 2025 to discuss the matter.
Medical Assessor Rosenthal confirmed that he had assessed Mr Gulic on 11 December 2024.
There was a discussion of Medical Assessor Rosenthal’s report.
Medical Assessor Dixon commented that there was a substantial aggravation to the pre-existing degenerative medial meniscus with an oblique tear.
The effect of the discussion was that the Panel would agree with the conclusions arrived at by Medical Assessor Rosenthal.
In the course of the discussion, the Panel formed the view that Mr Gulic probably had struck his left knee on the dashboard. Further, it noted that there had been no pre-existing symptomatology of meniscal tears or strains in the left knee, and that prior to the Accident, the left knee had been asymptomatic.
The Panel was of the view that there was no evidence of shoulder injury, just a pre-existing degenerative condition.
DOES THE CLAIMANT HAVE A NON-THRESHOLD INJURY?
The Panel is satisfied as a result of the history-taking by and the clinical examination of Medical Assessor Rosenthal that the meniscal pathology in respect of the left knee was, as concluded by the orthopaedic specialist Dr Chien, probably a result of an injury sustained in the Accident.
Dr Chien, orthopaedic surgeon, was of the opinion in respect of Mr Gulic’s left knee injury, that the MRI had revealed bilateral meniscal tears of which some were acute. Dr Chien referred to the presence of bone bruising and to approximal fibula ganglion and generalised cartilage loss of the left knee.
The Panel sets out the findings of Dr Chien dated 6 June 2022 below:
“Thank you for referring Milos to see me for his left knee. He is a 56 year old gentleman who was involved in a motor vehicle accident on the 23rd January this year. He was the driver of a car stopped at traffic lights when he was rear ended by a utility truck. He had his left foot on the clutch and the right on the brakes. The force of the impact drove his body forwards essentially axially compressing his knees.
Both his legs were affected but the left was more symptomatic. The pain is mainly felt over the medial and anterior aspects and worse with activity. In particular with stairs or trying to get up after a prolonged period being seated. There has been associated clicking and "cracking".
Prior to the incident he did not have any symptoms in his knee. He was even able to play soccer.
The knee pain is limiting his function. He can only walk for about 15min before he gets the pain. He takes regular ibuprofen and panadol.
On examination he has an antalgic gait. There is a moderate effusion in the knee. Range of motion was 0 to 90 degrees. The ligaments were stable.
MRI revealed bilateral meniscal tears of which some are acute. There is presence of bone bruising. There is a proximal fibular ganglion and generalised cartilage loss of the knee.
Based on the clinical findings Mr Gulic would have substantially aggravated his knee from the injury. The axial loading force to his knee would have further torn the meniscii as well as caused further chondral injury.
At this stage, I would like Milos to continue analgesia and physiotherapy. These treatment modalities do not address the internal knee derangements but may provide him with symptomatic relief. When non operative management fails, surgical management would be a total knee replacement or an arthroscopic partial meniscectomy. Given the presence of osteoarthritis my recommended option is to go straight for a knee replacement. An arthroscopy is less predictable and will relief will also be temporary. I will see him again in 3 months.”
The Panel referred to Dr Chien’s clinical findings that Mr Gulic would have substantially aggravated his left knee in the Accident and the axial loading force to his left knee would have further torn his menisci as well as have caused further chondral injury.
The Panel noted that in his report of 5 September 2022, Dr Chien Calvin did not accept the explanation with respect to the mechanism of the injury to the shoulder.
The Panel found Dr Chien’s conclusions including at the aetiology of the injury to the left knee persuasive
HOW THE PANEL DEALT WITH THE INSURER’S SUBMISSIONS
The Insurer made three sets of Submissions, dated 29 July 2024, reply submissions of
18 March 2024, and treatment dispute submissions of 18 March 2024.The Insurer deals with the alleged left and right knee injuries of Mr Gulic in its reply submissions of 18 March 2024 at [36].
The Insurer at [37] refers to the MRI over the left knee performed on 4 May 2022 and that it revealed degenerative changes: -
“There are advance osteoarthritic degenerative changes. There are meniscal tears within both the medial and lateral meniscus. There are features of strain involving the medial retinaculum where it merges with the MCL.”
The Insurer continues at [38] that it relies on the opinion of the radiologist Dr Dugal and submits that any findings on the MRI pre-dated the injury.
Further, the Insurer quotes Dr Dugal at [39]:
“Overall findings of the MRI of the left knee are consistent with a longstanding degenerative basis and the tears of the anterior horn of the lateral meniscus associated with parameniscal cyst and the oblique tear of the medial meniscal body and degeneration of the anterior horn with regional osteophytes in the medial femorotibial compartment are all longstanding. These changes include interosseous ganglia are also evidence in relation to the medial plateau adjacent to medial meniscal tear confirmed the findings would predate the timing of the accident and hence are unrelated to the MVA”
The Panel did not accept the Insurer’s Submission that it should adopt the findings of Dr Dugal. Rather, it was persuaded by the opinion of Dr Chien as set out above, and concluded that on the balance of probabilities, Mr Gulic substantially aggravated his left knee in the Accident when the axial lading force to his left knee would have further turn the menisci as well as caused further chondral injury.
CONCLUSION
The Panel was satisfied that the claimant had an injury to the left knee which was a non-threshold injury.
The Panel concludes that to this extent, it disagreed with the conclusion of Medical Assessor Wallace and concludes that the injury to the left knee was a non-threshold injury.
In other respects, the Panel confirms the Certificate of Medical Assessor Wallace.
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