Idrees v Insurance Australia Limited t/as NRMA Insurance

[2022] NSWPICMP 359

DETERMINATION OF REVIEW PANEL
CITATION:	Idrees v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMP 359
CLAIMANT:	Muhammad Idrees
INSURER:	Insurance Australia Limited t/as NRMA Insurance
REVIEW Panel
PRINCIPAL MEMBER:	John Harris
MEDICAL ASSESSOR:	Dr Drew Dixon
MEDICAL ASSESSOR:	Dr Trudy Rebbeck
DATE OF DECISION:	14 September 2022
CATCHWORDS:	MOTOR ACCIDENTS – The claimant suffered injury in a motor accident on 22 September 2019 when another vehicle collided into the rear of his vehicle; the issue was whether the claimant suffered a non-minor injury; the claimant sustained a soft tissue injury to the cervical and lumbar spine with no two signs of radiculopathy at any time: David v Allianz Australia Ltd applied; Panel otherwise not satisfied that the cyst shown on scan evidence was caused by the motor accident; the claimant did not suffer injuries to shoulders and the symptoms were more likely emanating from the cervical spine; factors in reaching this conclusion include the mechanism of injury, examination by the Medical Assessors, response to shoulder injections and nature of the pathology shown on scans in light of the claimant’s age; Held – claimant sustained minor injuries caused by the motor accident.
DETERMINATIONS MADE:	The Review Panel confirms the certificate dated 22 May 2022.

REASONS

BACKGROUND

1. Mr Muhammad Idrees (the claimant) suffered injury in a motor accident on
   22 September 2019 when another vehicle collided into the rear of his vehicle.

2. The insurer insured the owner and driver of the other motor vehicle for liability to pay to Mr Idrees any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act).

3. The issue presently in dispute is whether Mr Idrees’ injury is classified as a “minor injury” within the meaning of the MAI Act. Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is a minor injury for the purposes of the Act”.

4. A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[1] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.

   [1] Section 7.20 of the MAI Act.

5. The dispute was referred to Medical Assessor Cameron who issued a medical assessment certificate dated 24 May 2022. Medical Assessor Cameron concluded that Mr Idrees sustained injuries to the lumbar and cervical spine which are a minor injury for the purposes of the MAI Act.

6. Whether a person has only suffered minor injuries as a result of a motor vehicle accident affects the entitlement to both statutory benefits and damages. 

7. Statutory benefits by way of loss of earnings and treatment and care expenses cease after 26 weeks if “the person’s only injuries resulting from the motor accident were minor injuries”[2]. An injured person otherwise cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were minor injuries”.[3]

   [2] Sections 3.11 and 3.28 of the MAI Act.

   [3] Section 4.4 of the MAI Act.

THE REVIEW

1. The application for referral of the medical assessment to a review panel was made by Mr Idrees within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.

2. The President’s delegate referred the medical assessment to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[4]

   [4] Section 7.26(5) of the MAI Act.

3. Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after
   1 March 2021, the new review provisions apply.

4. The review provisions provide[5] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Person Injury Commission (the Commission).

   [5] Section 7.26(5A) of the MAI Act.

5. Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[6]

   [6] Section 41(2) of the PIC Act.

6. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[7]

   [7] Rule 128 of the PIC Rules

7. The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[8] 

   [8] Section 7.26(6) of the MAI Act.

8. The Panel issued an initial direction to the parties requiring the provision of respective bundles of documents to be considered.

STATUTORY PROVISIONS

1. A minor injury is defined in s 1.6 of the Act and includes a “soft tissue injury” or a “minor psychological or psychiatric 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.”

2. Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines minor injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder.

3. Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a minor injury for the purposes of the Act. Version 8 of the Guidelines commenced on 29 October 2021 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a minor injury, the Guidelines relevantly provide:

   “5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a minor psychological or psychiatric injury caused by the motor accident.
   5.4 Diagnostic imaging is not considered necessary to assess minor injury.
   5.5 A diagnosis for the purpose of a minor injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
   5.6 The assessment of whether an injury caused by the accident is a minor injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:

   (a)a comprehensive accurate history, including pre-accident history and pre-existing conditions

   (b)a review of all relevant records available at the assessment

   (c)a comprehensive description of the injured person’s current symptoms

   (d)a careful and thorough physical and/or psychological examination

   (e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”

4. Clauses 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a minor injury. An injury resulting in radiculopathy will not be classified as a minor injury.

5. Clause 5.7 of the Guidelines provides:

   “In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”

6. Radiculopathy is defined in cl 5.8 of the Guidelines as follows:

   “Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.

   (a)loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)

   (b)positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)

   (c)muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)

   (d)muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution

   (e)reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”

7. Neurological symptoms that do not meet the assessment criteria for radiculopathy means that the injury will be assessed as a minor injury.[9]

   [9] Clause 5.9 of the Guidelines.

8. Sections 5D and 5E of the Civil Liability Act 2002 apply to the Act[10].

   [10] See s 3B(2) of the Civil Liability Act 2002.

ASSESSMENT UNDER REVIEW

1. The Medical Assessor concluded that Mr Idrees suffered soft tissue injuries to the cervical and lumbar spine but had not sustained an injury to either shoulder. It was otherwise concluded that the supraspinatus tears were not caused by the motor accident.

SUBMISSIONS

Claimant’s submissions dated 15 November 2021[11]

[11] Claimant’s bundle, page 35.

1. These submissions were filed seeking leave to review the certificate issued by Medical Assessor Cameron. The claimant submitted that he consulted his general practitioner on the day following the motor accident complaining of back, neck, right and left shoulder pain.

2. The claimant referred to the opinions expressed by Dr John Korber, Dr Neil Berry,
   Dr Sher (9 April 2020) and Dr Geoffrey Rosenberg.

3. Dr Behary was the treating general practitioner for 20 years prior to the motor accident. There had never been a prior complaint of shoulder symptoms. 

4. It was submitted that the claimant suffered the following non-minor injuries:

   ·        lumbar spine – traumatic cyst with nerve compression, and

   ·        left shoulder – partial tear of the supraspinatus and AC changes.

Claimant’s submissions dated 14 June 2022[12]

[12] Claimant’s bundle, page 7.

1. These submissions were filed seeking a review of Medical Assessor Cameron’s decision. The submissions largely repeat the earlier submissions although they emphasise that there were contemporaneous complaints of shoulder pain which were not considered by the Medical Assessor.

2. The claimant noted that the opinion of the treating specialist, Dr Sher, correlated the clinical findings with the MRI findings. Dr Korber opined that the findings shown on the MRI scan for the left shoulder could be a non-minor injury if they were clinically correlated.

Insurer’s submissions undated[13]

[13] Insurer’s bundle, page 5.

1. The insurer submitted that the Medical Assessor considered the medical evidence and concluded that the pathology of the scans was related to degenerative changes and common in asymptomatic people of Mr Idrees’ age. It was submitted that when the reasons are read as a whole, the Medical Assessor considered the clinical records and did not make a finding that there was no contemporaneous support for the shoulder injuries.

Insurer’s internal review dated 20 May 2021[14]

[14] Insurer’s bundle, page 66.

1. The insurer’s internal review referred to the evidence and concluded that the claimant did not sustain a non-minor injury in the motor accident. In particular, it referred to the opinion expressed by Dr Korber that the shoulder pathology was degenerative.

Insurer’s submissions dated 17 December 2021[15]

[15] Insurer’s bundle, page 12.

1. The insurer noted that Dr Rosenberg considered that it was unlikely that the lumbar spine cyst was of traumatic origin.

2. It submitted that Dr Korber considered the partial tear of the left supraspinatus to be degenerative and he did not consider that it would have been possible to injure the mid substance of a tendon without affecting either the bursal surface or the under surface of the right shoulder.

3. The insurer referred to the opinion of Associate Professor Shatwell that it was highly unlikely that the current symptoms in the neck, back or either shoulder were attributable to the motor accident. The doctor noted abnormal illness behaviour. Examination showed no objective signs of nerve root irritation from either the back or the neck. With respect to the shoulders the doctor opined that the scans showed age related degenerative changes which were unrelated to the motor accident.

4. It was submitted that based on the photographs the motor accident was minor. The claimant may have sustained soft tissue injuries which resolved within a short period.

MATERIAL BEFORE THE REVIEW PANEL

1. The parties filed bundle of documents in accordance with the initial direction.

Pre-accident medical records

1. The pre-accident clinical notes of the general practitioner do not show problems to the shoulders.[16] Mr Idrees has a prior right foot/ankle work injury and history of depressive symptoms.

   [16] Claimant’ bundle, pages 134 – 185.

2. A CT scan of the lumbosacral spine dated 16 July 2013 referred to degenerative changes at L3/4 facet joint with osteophytes compressing the L3 left recess.[17]

   [17] Insurer’s bundle, page 306.

Motor accident

1. Mr Idrees completed a claim form dated 24 September 2019.[18] He stated that he sustained “really bad pain across my upper shoulders, lower neck and lower back” from the motor accident.

   [18] Insurer’s bundle, page 20.

2. The driver of the insured vehicle provided a statement dated 8 February 2020.[19]
   

   [19] Insurer’s bundle, page 73.

   Mr Walia denied that he was attempting to turn right at the lights although he stated that he moved to the left around cars waiting to turn right when Mr Idrees overtook him on the left-hand side.  It is unclear from the statement what part of the cars collided with each other.

3. A photograph shows an indentation over the driver’s side rear wheel.[20]

   [20] Insurer’s bundle, page 880.

Medical evidence

1. The claimant attended his general practitioner on 23 September 2019 who recorded:[21]

   “MVA on 22/9/19 – hit by another vehicle into the back of the driver side – c/o neck pain, lower back pain R and L shoulder pain.”

   [21] Insurer’s bundle, page 93.

2. The doctor noted restricted movement in both shoulders.

3. On 27 September 2019 the doctor again referred to pain in the neck, lower back and both shoulders and referred the claimant for physiotherapy. A certificate of capacity at that time provided the following diagnosis:[22]

   “?? Soft tissue injuries, neck, lower back, R and L shoulder.”

   [22] Insurer’s bundle, page 342.

4. On 10 October 2019 the general practitioner referred Mr Idrees for MRI scans of the cervical and lumbar spine.[23]

   [23] Insurer’s bundle, page 126.

5. The Allied health recovery request dated 12 November 2019 referred to neck strain, bilateral shoulder strain and discogenic low back pain at L4.[24]

   [24] Insurer’s bundle, page 358.

6. Dr Doron Sher, orthopaedic surgeon treated the shoulder condition. In a report dated
   

   [25] Claimant’s bundle, page 129.

   [26] Claimant’s bundle, page 129.

   9 April 2020 Dr Sher noted that the left shoulder was worse than the right “with pain mainly in the trapezius and AC joint region” with limited forward elevation.[25]  The doctor noted subacromial crepitus with positive impingement and general weakness due to pain. The doctor opined that the MRI scanning showed a partial tear on the right and an almost full thickness tear on the left.[26]

7. On 7 September 2020 Dr Sher noted that clinical examination on the left side remained very irritable with rotator cuff weakness. Operative procedure was recommended on the left shoulder if Mr Idrees gave up smoking.[27]

   [27] Claimant’s bundle, page 130.

8. Dr Geoffrey Rosenberg, orthopaedic surgeon provided a report dated 7 April 2020 noting normal neurological examination of the cervical spine with poor effort due to pain.[28] In respect of the back, Dr Rosenberg noted the cyst at L4 tightly impinging on the nerve root. The doctor opined:

   “I believe his back problems relate to the cyst and the nerve compression. I am not aware that traumatic cyst can occur, but whether it was there or not, it certainly was asymptomatic prior to the accident, and is causing problems now.”

   [28] Insurer’s bundle, page 88.

9. Dr Rosenberg noted some weakness of the left gluteal muscles, supine straight leg raising caused back and left thigh pain and weakness of left toe dorsi flexion. Reflexes were preserved. The doctor did not believe that there was a discrete problem within the shoulders.

10. In a report dated 14 May 2020 Dr Rosenberg suggested facet joint injections at L4/5 for ongoing back pain.[29] The doctor noted that the bone scan showed increased uptake in the left L4/5 facet joint. He suspected that the motor accident may have caused a contusion in this area by causing a hyper extension injury into the lumbar spine. 

    [29] Claimant’s bundle, page 119.

11. On 4 September 2020 Dr Rosenberg noted ongoing back and left leg pain arising from the pathology at L3/4 caused by the facet joint cyst compressing the L4 nerve root.[30] The doctor proposed that the cyst be excised, and nerve roots be decompressed. In a subsequent report Dr Rosenberg stated that the claimant’s problems and symptoms relate to the motor accident.[31]

    [30] Claimant’s bundle, page 123.

    [31] Claimant’s bundle, page 124.

Qualified opinions

1. Dr Neil Berry, surgeon was qualified by the claimant and provided a report dated
   

   [32] Claimant’s bundle, page 83.

   19 March 2021.[32] The doctor noted a significant degree of illness behaviour. No neurological signs were reported on examination. He diagnosed soft tissue injuries from the motor accident to the neck, low back and both shoulders.

2. Dr Berry stated:[33]

   “Dr Korber has done a careful examination of the films and found that the claimant has a partial tear of the left supraspinatus and therefore considered it a non-minor injury.”

   [33] Claimant’s bundle, page 88.

3. Dr Korber, radiologist, was qualified by the insurer and provided a report dated
   9 June 2020. The doctor noted the absence of contemporaneous documents which he described as “important”.

4. Both parties relied on extracts of Dr Korber’s opinion. In these circumstances the doctor’s opinion is set out in some detail. Dr Korber stated:[34]

   “There is very little clinical information on this claimant prior to six months after the accident. In my opinion, the contemporaneous history is important.

   I agree with the MRI reports issued by Dr Abdelrahman. Basically, the changes are osteoarthritis in both acromioclavicular joints. On the right side, there is minor intrasubstance tear of supraspinatus. On the left side, there is long-standing abnormality at the insertion of supraspinatus into the greater tuberosity as evidenced by the bony irregularity (Fig 1), being associated with a partial articular surface tear of the tendon.

   It is common to find degenerative changes in the shoulders of patients of this age.

   Bilaterally, the osteoarthritis in the acromioclavicular joints are long-standing. Whether the claimant has aggravated a pre-existing condition is a matter for clinical examination.

   On the balance of probability, the partial tear of left supraspinatus is degenerative. It would not be possible radiologically to say whether the claimant extended such a tear or not. On the right side the appearances in the supraspinatus are degenerative. I do not think it is possible to injure the mid substance of a tendon without affecting either the bursal surface or the under surface.”

   [34] Claimant’s bundle, page 96.

1. Dr Korber provided a supplementary report dated 1 September 2020.[35] The doctor then opined that the partial tear of the left supraspinatus and AC joint changes could be a non-minor injury if clinically correlated.

   [35] Claimant’s bundle, page 98.

2. Associate Professor Shatwell was qualified by the insurer and provided a report dated 21 September 2020.[36] The doctor noted minor damage in the motor accident as shown in photographs with no significant force transferred to Mr Idrees in the motor accident.

   [36] Insurer’s bundle, page 805.

3. Associate Professor Shatwell opined that there was no injury sustained in the motor accident because none of the passengers were injured, the car was driveable,
   Mr Idrees continued to work for an hour and a half and did not seek medical attention until the following day.  Further the general practitioner did not refer Mr Idrees for any investigations and certified him fit for usual duties on 27 September 2019.

4. The doctor noted Dr Rosenberg’s conclusion that that the cyst could be responsible for the low back and left leg symptoms. Examination did not reveal objective signs of nerve root irritation. He opined that the cyst was probably present for many years.  

5. Associate Professor Shatwell opined that the scans showed age-related degenerative changes in the shoulders which had not been caused by the motor accident.

6. Dr Roberts, psychiatrist, was qualified by the insurer and opined that there was no organic basis for the reports of pain. However, the doctor noted that he was not provided with the opinions of the treating specialists, Dr Sher and Dr Rosenberg.[37]

   [37] Claimant’s bundle, page 276.

7. Dr Rastogi was qualified by the claimant and opined that Mr Idrees suffered from a major depressive disorder.[38]

   [38] Claimant’s bundle, page 266.

Radiology

1. The MRI scan of the lumbar spine dated 30 October 2019[39] showed a synovial cyst arising from the left facet joint at L3-4 leading to moderate/marked left recess narrowing potentially causing impingement on the left L4 nerve. The MRI scan of the cervical spine showed mildly degenerative spondylotic changes at various levels.

   [39] Insurer’s bundle, page 116.

2. Bilateral shoulder scan dated 1 April 2020[40] showed cuff attrition of the left shoulder with no gross plain film pathology of the right shoulder evident.

   [40] Insurer’s bundle, page 90.

3. A bone scan dated 23 April 2020[41] suggested low-grade arthroplasty in the cervical spine and lumbar spine most marked in the left C2/3, right C5/6 and left L3/4 and L4/5 facet joints. Possible arthritic changes were noted in the AC joints and the hips.

   [41] Insurer’s bundle, page 86.

4. The MRI scan of the left shoulder dated 17 February 2020[42] showed osteoarthritis of the acromioclavicular articulation with a partial tear of supraspinatus tendon articular surface extending to the footprint with irregularity at its bony attachment.

   [42] Insurer’s bundle, page 107.

5. The MRI scan of the right shoulder dated 16 March 2020[43] showed osteoarthritis of the acromioclavicular articulation with a partial intrasubstance tear of the supraspinatus tendon.

RE-EXAMINATION

[43] Insurer’s bundle, page 95.

1. The Panel determined that Mr Idrees be re-examined by Medical Assessor Rebbeck on 1 September 2022. The re-examination report is as follows:

   “Mr Muhammad Idrees was assessed at my rooms, Level 1 50 York St on 1^st September 2022. Mr Idrees was accompanied by his wife to the assessment. Prior to commencing the assessment, I asked Mr Idrees if he understood the point of this assessment. He stated it was to get advice on treatment. I explained to Mr Idrees that the point of this assessment was to try and figure out what was causing the neck and shoulder pain rather than provide advice on treatment, which (as independent assessors appointed by the PIC) we were unable to do. He understood this purpose once I had explained it to him.
   History

   1.    Pre-accident medical history and relevant personal details

   Mr Idrees stated that he lives at home with his wife and their children aged 14, 20, 21, 23, and 24. Prior to the accident, Mr Idrees worked as an Uber driver. He stated he was independent in undertaking activities of daily living including odd jobs around the house and mowing the grass.
   Mr Idrees had two previous injuries which are outlined in the documentation and confirmed by himself. They include an injury to the right foot where a car drove over his right foot, as well as an amputated right index finger due to an accident when he was younger. Despite these two injuries he was independent prior to the subject accident and ability and activities of daily living.

   2.    History of the motor accident

   Mr Idrees told me that he was involved in a motor vehicle accident on 22 September 2019.
   Mr Idrees explained that on the day of the subject accident he was an Uber driver and had three passengers in the car.  He recalled that he was stationary at the time when he was involved in a rear end accident. He recalled that he drove the car to the left-hand side of the curb and remembered immediately feeling sweaty. He rang his wife, and his wife advised him to drive home. He was able to drive the vehicle home after the accident. He recalled feeling, (in addition to the initial shock and sweating) neck pain, shoulder pain and low back pain. At this point I asked him to indicate where the pain was, and he demonstrated the posterior neck to the shoulder, and this is represented in the body chart attached.

   3.    History of symptoms and treatment following the motor accident

   General practitioner
   Mr Idrees said that he initially attended his General Practitioner (GP). He recalled that the GP gave him pain relief (Panadol), advised him to let the workplace know and gave him a certificate to be off work. He was advised to have an MRI for his low back, shoulder and neck. He then lodged a claim with the insurer.
   Physiotherapy
   Mr Idrees said he was then referred to physiotherapy. He stated that he attended physiotherapy for around four months. This initially commenced two times a week then reduced to once per week. When asked what physiotherapy sessions consisted of, he stated that he had “machines on his shoulders and his low back” for one session and the other session he was “massaged with oil”. When asked about the effect of this treatment, he stated it gave him temporary relief (for one to two hours), then the symptoms returned. I asked whether he had been given exercises he stated that he was given some theraband exercises and demonstrated upper limb theraband exercises. He also offered at this point, that his pain is always worse in the winter. .
   Mr Idrees stated that as Covid hit in 2020 and 2021, he really didn't undertake much treatment during this time. Work as an Uber driver was understandably reduced / non-existant during COVID lockdowns. He then stated that once the lockdown lifted, he returned to work as a Uber driver and sustained a second motor vehicle accident on December 2021. He stated that there was no recovery between the first accident and the second accident and that the second accident further exacerbated his symptoms.
   Mr Idrees then stated that he had a second course of physiotherapy after the second  accident. He also stopped work for three months after the second accident and then tried to return to work around three months later. He stated that he tried to work for about four to six weeks and then stopped and has not worked ever since.
   Psychology
   Mr Idrees has also attended a psychologist. I asked him if he had been provided a diagnosis by the psychologist. He stated he did not know the diagnosis, and neither did his wife (who was in attendance).  He said that the psychologist had given him strategies to help manage the pain over about 6 to 8 sessions. He stated that he thought the psychologist was going to “move to the next level” of psychological treatment, however this was denied by the insurer.
   Surgery
   Mr Idrees stated that he had been referred to an orthopaedic surgeon whom he named as Dr Sher. He stated that he was referred for injections. He stated that he has had injections into his neck, his shoulder, and his lower back. When asked about the effect of these injections he stated that these injections did not help his pain. Specifically, when asked about the effect of the shoulder injections he stated these did not help his pain. Mr Idrees also mentioned an orthopaedic surgeon he was referred to for his low back, he could not recall the name however I understand this to be Dr Rosenberg. Dr Rosenberg has recommended he be referred for surgery for his lower back. Dr Sher has recommended he be referred for surgery for his left shoulder.

   4.    Details of any relevant injuries or conditions sustained since the motor accident

   Mr Idrees stated that he had a second motor vehicle accident on around December 2021. He stated that there was no recovery between the first accident and the second accident. He stated that the second accident was also a rear end motor vehicle accident, and it exacerbated the symptoms from the first accident.

   5.    Current symptoms

   Mr Idrees completed a body chart which indicates where his current symptoms are. This has been a scanned and placed in the figure below. He described his current symptoms as follows:

   ·     Posterior neck and shoulder pain, described as constant and present 24 hours a day

   ·     Posterior headache

   ·     Left sided lower back pain referred into the posterior thigh.

   Mr Idrees stated that he feels the neck and shoulder pain are related. He feels that when the neck pain increases, the shoulder pain increases as well. He is not sure if these two areas of pain are the same or different, and offered this information independently of my asking. Mr Idrees restated that the neck and shoulder pain is aggravated by activities involving the upper limb such as driving or lifting, and sustained neck postures. He also stated that cold increases his pain, including the neck and shoulder pain and the back pain. He stated that walking and prolonged sitting aggravates the lower back pain.
   He is unable to find anything that eases his pain but tends to rest if pain gets too unbearable for him. Current medications include Panadol osteo (which he takes three times a day), Brufen and Zoloft.
   Mr Idrees denied any symptoms into the lower arms, denied any anterior arm or chest symptoms, and denied any right  sided leg symptoms. He also denied any symptoms into the anterior leg on the left side.
   [image not displayed]

   Current function
   Mr Idrees stated that he feels very debilitated due to the pain and currently his wife does many of the daily activities for him. Specifically, he stated his wife helps him with dressing and with showering. His wife does all the cooking and cleaning, as do the children at times.  He stated that prior to the subject accident, he was able to do the lawn mowing, would often play cricket with his children. He is unable to do any of these activities at the moment. He stated that he is able to walk for short distances around the house, however this is about the extent of his exercises.
   As stated previously due to his injuries he no longer drives his Uber, as he found it too painful.
   Current goals are to be more independent at home.
   Mr Idrees stated that he usually just lies down in his room, he does not want to show his children the pain that he is in.
   Questionnaires and beliefs
   Mr Idrees completed the following questionnaires after the examination.
   The Orebro Musculoskeletal Pain Screening Questionnaire (Orebro). He scored 85/100. This indicates high risk of a poor outcome. Of note is that he scores maximally on every item on the Orebro. The Orebro questionnaire captures beliefs and psychological distress, in particular he scores high on beliefs around persistent pain time fear avoidance, anxiety and depression. 
   I asked Mr Idrees what he thought was causing his pain. He stated he had no understanding of why his pain persisted nor what might be the cause of his pain at this point. I then asked him what he felt needed to happen for him to achieve his current goals of being independent. He stated that he wasn't sure what treatment he needed. He explained that the injections did not help and that the surgeons had recommended he has surgery, but he is not sure whether this will help his pain or not.

Clinical Examination

6.    General presentation

Mr Idrees presented with some indication of illness behaviours.  By this I mean, as he walked into the rooms there was obvious limping as he weight bear on the left leg and some facial grimacing.

7.    Cervical spine (cervicothoracic)

In regard to the cervical spine there was noticeable reduction in range of motion in all planes of movement that was symmetrical. There did appear to be voluntary muscle guarding of these movements. Movement would be judged to be around 50% of normal range for his age.
There was some inconsistency in the range of motion observed. For example, during non-formal components of this assessment, that is just observing Mr Idrees as he was speaking to his wife and speaking to me, there did appear to be greater range of cervical rotation observed informally.
There were no adverse neural tension signs. I assessed this informally by asking Mr Idrees to stretch his arms out to the side bilaterally and he was able to do this without increased pain.

8.    Thoracic spine

There was a noticeable reduction of thoracic range of motion when observed during formal testing. This again would be observed to be reduced to around 50% of normal range in rotation left and rotation right. Once again this did appear to be associated with facial grimacing and some illness behaviours.

9.    Lumbar spine (lumbosacral)

There was noticeable reduction of range of motion in the lumbosacral spine. During formal testing, Mr Idrees was able to perform movements to around 20% of anticipated normal range. Similar to the cervical spine, this loss of range of motion was symmetrical and there was no dysmetria, but there was some observable muscle guarding. Once again however, during informal components of this examination Mr Idrees was able to move through what would be considered a more normal range of motion for the lumbar spine. For example,  as he had to get on and off the bed, he needed to flex his lumbar spine to around 40 or 50 degrees and was able to do so, although reported as painful.

10. Shoulder

There was noticeable reduction of range of motion in bilateral shoulder movement. During formal testing, the ranges of motion measured are indicated in the table below. Specifically, with shoulder flexion and abduction Mr Idrees was unable to flexor or abduct more than 80 degrees before he stopped the movement due to pain.
Similar reduction in range of motion in internal and external rotation was not observed. This was tested by his side (that is in neutral shoulder flexion and extension) and he was able to achieve full external and internal rotation range in this position.

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	80°	80°
Extension	20°	20°
Abduction	80°	80°
Internal Rotation	90°	90°
External Rotation	90°	90°

During muscle testing of the shoulder, Mr Idrees was unable to fully resist any shoulder movement. This included shoulder internal rotation, shoulder external rotation, shoulder flexion and shoulder extension. He was also unable to fully resist elbow flexion and elbow extension. The reason he gave for this was pain. This pattern of inability to resist or muscle weakness in every direction is consistent with a pattern observed due to pain inhibition and is unusual with a discrete rotator cuff tear causing this weakness in my opinion.

11. Arm and elbow

There was full range of elbow motion, with no complaint of pain.

12. Knee and leg

There was full range of motion of the knee.

13. Neurological assessment

A neurological assessment was undertaken for both the lower and upper limbs.

·     Lower limb neurological examination. There were normal reflexes, normal dermatomal sensation, and normal myotomal strength exhibited.

·     Upper limb neurological examination. There were normal reflexes, normal dermatomal sensation, and normal myotomal strength.

There was some pain reported during muscle testing of the myotomal strength particularly in the upper limb. I undertook this examination very carefully to minimise the pain. Hence, pain may have reduced the ability for Mr Idrees to resist the muscle tests fully and  mild weakness was observed. However this was not myotomal in nature but was consistent across all muscles tested.
There was no observed muscle wasting in the upper or lower limbs.
Comments on consistency
Mr Idrees presented inconsistently. As stated above, there were increases in range of motion noted during informal components of this examination both in the cervical and lumbar spine and to a certain extent in the shoulders. When I asked Mr Idrees why this might be like this, his answer was that the pain varies, hence the range of motion varies. 
OPINION on DIAGNOSIS
With respect to the body area: cervical spine
The diagnosis’ is consistent with Whiplash Associated Disorder Grade II.
I based this decision on the fact that there was observable reduced range of motion in the cervical spine. When reduction in range of motion is observed, this is consistent with whiplash associated disorder grade II.
Given there was no clinical evidence of radiculopathy, that being normal upper limb neurological examination and no observable wasting in the upper and lower limbs, radiculopathy, whiplash associated disorder grade III can be excluded. For the purpose of this examination therefore the body area of the cervical spine can be considered a minor injury.
With respect to the body area -left and right shoulder.
The decision regarding what is causing the shoulder symptoms is the dispute requiring resolution by this review panel. In the last medical assessment conducted by Professor Ian Cameron, the opinion was that the shoulder supraspinatus tears were not “caused” by the subject accident. This opinion is consistent with that of Dr Korber (radiologist report dated 9 June 2020), Dr Rosenberg (treating orthopaedic surgeon report dated 7 Apr 2020) but differs from the opinion of Dr Sher (orthopaedic surgeon, report dated 7 Sept 2020).  The panel are also asked to consider the GP contemporaneous notes of report of shoulder “injury” after the accident.
In this assessment, my opinion would concur with that of Professor Ian Cameron, Dr Korber and Dr Rosenberg and differ from that Dr Sher.  The reasons are summarised as: area of symptoms, claimant report, mechanism of injury, relationship of imaging findings to pain, injection response, balance of medical information on file, and physical examination findings. Each of these points are considered separately.
1. Area of symptoms.
I took some time to be very clear about where the area of symptoms were felt by Mr Idrees.  The body chart that he completed has been cut and pasted into this document. This body chart was verified several times with Mr Idrees to be certain that it was accurate. What is evident from the body chart, is that the neck and shoulder pain are continuous pains and are considered as one by Mr Idrees. Specifically, he is unsure whether they are separate areas of pain or in fact part of the same pain.
When shoulder pain is felt in the posterior region of the neck (as indicated on this body chart), it is more commonly associated with referral from the cervical spine and less commonly associated with a discrete injury to a rotator cuff.  More commonly if a rotator cuff tear was to cause pain, it usually presents as anterior shoulder pain, rather than posterior shoulder pain felt in the area of the upper trapezius.
2. Claimant report
The claimant reported that the neck and shoulder pain is almost considered the same pain area. He is unsure whether it is discrete or in fact the neck refers to the shoulder. The claimant was able to say that when the neck pain gets worse the shoulder pain gets worse, describing a relationship between the two regions.  This posterior shoulder regions is a known and common area that the neck refers to. Hence, in my opinion, it is more likely that the neck is referring to the area where Mr Idrees reports pain, than it is a discrete shoulder injury causing this pain.

3. Mechanism of injury.
The third point to consider is the mechanism of injury. This was a rear end motor vehicle accident. In the first accident, Mr Idrees was able to drive the vehicle away. He reports that the shoulder pain occurred after the accident. A mechanism of injury for rotator cuff injury in a rear end motor vehicle accident is very unlikely. Rotator cuff injuries usually occur when there is direct force upon the shoulder that transfers to the rotator cuff through a resisted load eg, a fall onto an arm or a similar mechanism. Hence, it is my opinion that it is unlikely that rear end motor vehicle accident can cause a rotator cuff injury.
4. Relationship of imaging to findings.
The findings on MRI of the shoulder do in fact indicate that there is partial tear of the left supraspinatus and A/C joint changes on the left shoulder. It is agreed that the AC joint changes are likely to be degenerative. What is not agreed prior to this examination is that the partial tear of the left supraspinatus could also be degenerative. It is known that imaging findings of partial tear of the supraspinatus is a common finding. In fact, it is found in around 60% of people in this age group. Given this, it is quite likely that the supraspinatus tears on imaging could have been present prior to the subject accident.
Similarly in the right shoulder a partial intra-substance tear of the supraspinatus is mentioned on the MRI. A similar argument could apply to the right shoulder. Specifically, it is known that intra-substance tears of the supraspinatus tendon are a common finding in asymptomatic shoulders in this age group. Once again, this finding could have been present prior to the subject accident without the claimant’s knowledge.
The documentation on file would also suggest that this is the opinion of Dr Korber (radiologist).  Specifically in the report dated 9 June 2020, Dr Korber states that on the balance of probability it is likely that both the right and left side supraspinatus tears are degenerative in nature.
5. Lack of response to injections
The claimant reports no response to shoulder injections. It may be expected that if a discrete shoulder injury were present that injections may result in some reduction of pain. In the absence of this occurring, it is more likely in my opinion that a discrete injury to the shoulder tendon is not in fact the cause for the shoulder pain that Mr Idrees experiences.
6. Balance of medical information in the documentation.
The review panel were asked to consider the contemporaneous notes of the General Practitioner. It is noted in the entry dated 23 September 2019 that's the contemporaneous notes mention “shoulder pain”. The contemporaneous notes do not mention “shoulder injury”. Hence, in my opinion it's important to determine whether the cause of shoulder “pain” is an actual shoulder “injury” or could be referred from another source. Having reviewed the contemporaneous notes of the General Practitioner, it is clear that report of shoulder pain was present soon after injury. However, it is not clear that this “pain” is due to a discrete “shoulder injury”. In fact, the diagnosis of tendon tear or likely diagnosis of tendon tear is not provided in the contemporaneous notes.
It's the opinion of Dr Korber (radiologist-report dated 9 June 2020) that on the balance of probability both tendon tears seen on imaging are likely to be degenerative in nature. This opinion is consistent with that provided by
Dr Rosenberg (7 April 2020). Once again, his opinion is that there no discrete problem with the shoulder. There is a note of “pain behind the shoulders”, once again, this is a common area referred to from the cervical spine. The only report that differs from this is the report of Dr Sher (report dated 7 Sept 2020). Specifically, it is noted that Dr Sher writes that the presence of both limited active and passive movement may be consistent with the tears seen on imaging. However, these symptoms did not respond to injection as indicated above. Doctor Sher has recommended shoulder surgery. Having conducted this examination carefully, knowing that the cause of the shoulder pain was important and material to this review panel, and having considered all the medical information on file, the presentation in this instance of this claimant on the date of the review examination is consistent with the opinions of Dr Cameron, Dr Korber and Dr Rosenberg. The contemporaneous notes of the GP are also consistent with the panel opinion. The only opinion that differs from this is that of Dr Sher.
7.  Physical examination findings.
The physical examination findings are, in my opinion, less consistent with a rotator cuff tendinopathy / supraspinatus tear and more consistent with a generalised pain disorder. With high levels of pain and some evidence of pain sensitivity, all movements are painful. Mr Idrees reports all movements of the shoulder to be painful. In particular, shoulder elevation, flexion and abduction were the most painful movements. Mr Idrees was unable to elevate the shoulder above 80 degrees.  Interestingly, there was full range of shoulder external rotation, internal rotation. In the presence of a rotator cuff tear, it would be expected that shoulder rotation might also be limited.
Weakness was observed in resisted movements to every direction in the shoulder. Again, this is inconsistent with a supraspinatus tear.  In contrast, it would be expected that certain movements would be weak but other movements may not and should exhibit normal strength. For example, the supraspinatus tendon has the action of external rotation. Hence, external rotation would be expected to be weak, however internal rotation, shoulder flexion and elbow flexion may typically exhibit normal strength. This was not the case in this examination, where every resisted movement was reported as painful. This pattern is more commonly seen with whiplash and referred pain from the neck than it is with a discrete shoulder injury.
In summary therefore, the seven points taken together above would lead to the opinion that the supraspinatus tear is not caused by the subject accident, and I am not convinced that the tear seen on the MRI is the “cause” of the shoulder pain.  Rather, it is more likely in my opinion that the shoulder pain experienced is referred from the cervical spine.
To reiterate, on the balance of evidence and this examination, it is more likely than not that the supraspinatus tears seen on imaging are not “causing” the shoulder pain that Mr Idrees reports.
Lumbar spine and lower limbs.
In my opinion lumbosacral spine diagnosis is consistent with nonspecific low back pain with referral into the left lower limb. That is there are complaints of symptoms, there is observable loss of range of motion that appears to be due to pain inhibition, in my opinion.
There is no clinical evidence of radiculopathy, there is no clinical evidence of nerve tension signs, and this would exclude lumbar radiculopathy being present.
In my opinion therefore the lumbar spine and lower limbs are caused by the motor vehicle accident, and consistent with a soft tissue injury.”

FINDINGS

1. The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to the injuries sustained in the motor accident were minor or non-minor as defined under the MAI Act.

2. The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion:  Insurance Australia Group Ltd v Keen[44] and Insurance Australia Ltd v Marsh.[45] 

   [44] [2021] NSWCA 287 at [40], [41] and [45].

   [45] [2022] NSWCA 31 at [11], [21] and [64].

3. The Panel adopts the reasoning in David v Allianz Australia Ltd[46] that radiculopathy can be present at any time to establish that the injury is not minor for the purposes of the MAI Act.

   [46] [2021] NSWPICMP 227 at [84] – [104].

4. We adopt the reasoning in Lynch v AAI Ltd[47] that the claimant bears the onus of proof in establishing that any injury is not a minor injury for the purposes of the MAI Act.

   [47] [2022] NSWPICMP 6 at [44] – [62].

5. The Panel adopts the examination report of Medical Assessor Rebbeck and adds the following reasons.

Low back injury

1. The Panel in its medical expertise does not accept that the cyst was caused by the motor accident. There is no medical basis that a rear end collision could cause a traumatic cyst to develop. That conclusion is consistent with the opinion expressed by Dr Rosenberg.

2. There is no evidence of traumatic changes in the lumbar spine. The nature of the lumbar spine injury is a soft tissue injury possibly aggravating the pre-existing cyst.

3. Based on the examination findings of Medical Assessor Rebbeck, Mr Idrees did not have two objective signs of radiculopathy at the recent examination. We could not otherwise identify within the materials, two objective signs of radiculopathy in the lumbar spine as defined by the MAI Act and the Guidelines. The radicular pain into the legs identified by Medical Assessor Rebbeck is not the same as the signs of radiculopathy defined in cl 5.8.

4. The motor accident did not cause or aggravate any pathology in the lumbar spine capable of being classified as a non-minor injury.

Cervical spine injury

1. There is no evidence of traumatic changes in the cervical spine. The nature of the cervical spine injury is soft tissue injury possibly involving aggravation of degenerative changes.

2. The motor accident did not cause or aggravate any pathology in the cervical spine capable of being classified as a non-minor injury.

3. There are no recorded observations of two signs of radiculopathy as defined in cl 5.8 of the Guidelines. The radicular pain into both shoulders identified by Medical Assessor Rebbeck is not the same as radiculopathy defined in cl 5.8.

4. Based on the examination findings of Medical Assessor Rebbeck, Mr Idrees did not have two objective signs of radiculopathy at the recent examination. We could not otherwise identify within the materials, two objective signs of radiculopathy in the lumbar spine as defined by the Guidelines.

5. For these reasons we conclude that Mr Idrees has not satisfied, at any time, two clinical signs of radiculopathy from the cervical spine.

Left shoulder injury

1. The nature of the cause of left shoulder symptoms have been discussed in detail by Medical Assessor Rebbeck.

2. We add some further observations particularly as various doctors and the lawyers in this case have either selectively quoted or misconstrued Dr Korber’s opinion.[48]

   [48] The parties’ submissions have been set out earlier and they do not properly analyse the opinion.

3. Dr Korber noted the nature of the left shoulder pathology was pre-existing but noted that whether Mr Idrees had aggravated a pre-existing condition was a matter for clinical examination. Accordingly, he opined that the pathology was not caused by the motor accident but could have been aggravated if this was otherwise clinically established.

4. If the motor accident had aggravated or extended the left supraspinatus tear, then the injury is not a minor injury as defined in the MAI Act as it would involve a partial rupture of tendons or ligaments. The weighing of whether the tear was aggravated by the motor accident involves a clinical exercise against the factual background.

5. Accordingly, the determination of the issue is not solely dependent upon Dr Korber’s opinion. However, the radiologist has articulated cogent reasons which we accept that the supraspinatus tear was pre-existing given the pathology shown on the scan and the claimant’s age.

6. In these circumstances the issue is whether the motor accident extended the supraspinatus tear.

7. The absence of prior left shoulder symptoms is not determinative as these tears can be asymptomatic.

8. We accept that Mr Idrees immediately complained of left shoulder pain. However, an equally plausible explanation is that the left shoulder symptoms emanate from the cervical region.

9. We note that Dr Sher was clinically satisfied that the left shoulder problems were due to rotator cuff pathology. However, we are not bound by the doctor’s opinion, and given the contest we must decide the issue. 

10. Against that background, the clinical examination undertaken by Medical Assessor Rebbeck was a critical aspect as to whether we were satisfied that the left shoulder symptoms were due to rotator cuff pathology. In those circumstances and given the other matters discussed by the Medical Assessor such as the nature of the motor accident, we are not satisfied that the supraspinatus tear was aggravated by the motor accident.

Right shoulder injury

1. The claimant’s submissions did not contest the right shoulder injury/symptoms constituted a non-minor injury. Accordingly, our reasons on the right shoulder are brief.

2. We are not satisfied that any right shoulder tear was caused or aggravated by the motor accident.  Dr Korber expressed the opinion, which we agree that the pathology in the right shoulder was not caused or aggravated by the motor accident.

CONCLUSION

97.We are satisfied that the injuries sustained in the motor accident by Mr Idrees are minor injuries as defined by the MAI Act and the Guidelines. For these reasons we conclude that the certificate issued by Medical Assessor Cameron is confirmed.