Insurance Australia Limited t/as NRMA Insurance v Mrkela

[2024] NSWPICMP 503

DETERMINATION OF REVIEW PANEL

CITATION:

Insurance Australia Limited t/as NRMA Insurance v Mrkela [2024] NSWPICMP 503

CLAIMANT:

Radomir Mrkela

INSURER:

Insurance Australia Limited trading as NRMA Insurance

REVIEW PANEL

MEMBER:

Terence Stern OAM

MEDICAL ASSESSOR:

Mohammed Assem

MEDICAL ASSESSOR:

Margaret Gibson

DATE OF DECISION:

26 July 2024

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; whether the injuries sustained were threshold injuries; re-examination of the claimant; consideration of factors contributing to the injury; left shoulder injury was diagnosed as causally related to the motor vehicle accident; Held – Medical Assessment Certificate revoked; left shoulder injury referred for assessment and caused by the accident was not a threshold injury.

DETERMINATIONS MADE:  

CERTIFICATE OF DETERMINATION

The Panel revokes the certificate of Medical Assessor Shahzad and substitutes the determination to certify that the following injuries were each a threshold injury:

·        cervical spine;

·        lumbar spine;

·        left hip;

·        right hip;

·        left knee;

·        right knee, and

·        right shoulder.

The Panel further certifies that the following injury was not a threshold injury:

·        left shoulder.

STATEMENT OF REASONS

INTRODUCTION

1. Radomir Mrkela (Mr Mrkela), the claimant, was injured in a motor vehicle accident (the accident) on 3 May 2021, when his vehicle was rear- ended by a vehicle travelling allegedly at high speed, at about 110kmph.

2. Insurance Australia Limited ABN 11 000 016 722 trading as NRMA Insurance (NRMA) was the insurer.

3. Under the provision of the Motor Accident Injuries Act 2017 (MAI Act) in force at the time of the accident the statutory benefits for treatment and care cease after 26 weeks if “the person’s only injuries resulting from the motor accident were minor (threshold) injuries”.

4. Mr Mrkela submitted an Application for Personal Injury Benefits dated 27 May 2021.

Threshold injury dispute

1. NRMA determined that Mr Mrkela had sustained a minor (threshold) injury and denied liability for statutory benefits beyond 26 weeks after the accident.

2. He filed an application in the Personal Injury Commission (Commission) in respect of the dispute.

3. Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matters, including whether the injury caused by the motor accident was a threshold injury.

4. A medical assessment matter was determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.

THRESHOLD INJURY- STATUTORY PROVISIONS

1. Assent was given to the Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) on 28 November 2022 with various amendments commencing on 1 April 2023. From
   1 April 2023 the MAI Amendment Act provides that a “minor injury” was known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.

2. The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.

3. A threshold injury was defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “psychological or psychiatric injury that was not a recognised psychiatric illness”. Section 1.6(2) of the MAI Act defines a “soft tissue injury” as:

   “[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.”

4. Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a threshold injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.

5. Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident was a threshold injury for the purposes of the MAI Act. Version 9.2 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury was a threshold injury, the Guidelines relevantly provide:

   “5.3   The assessment will determine whether the injury related to the claim was a soft tissue injury or a threshold psychological 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 was a threshold injury. Diagnostic imaging was 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 was 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.”

6. In Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372, his Honour Justice Wright stated at [35]:

   “The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There was no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:

   ‘Causation of injury

   6.5 An assessment of the degree of permanent impairment was a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment was related to the accident in question was therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.

   6.6 Causation was defined in the Glossary at page 316 of the AMA4 Guides as follows:

   ‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it was necessary to verify both of the following:

   1.The alleged factor could have caused or contributed to worsening of the impairment, which was a medical determination.

   2.The alleged factor did cause or contribute to worsening of the impairment, which was a non-medical determination.”

   This, therefore, involves a medical decision and a non-medical informed judgement.

   6.7 There was no simple common test of causation that was applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it was a contributing cause, which was more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this was not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes’.”

ASSESSMENT UNDER REVIEW

1. The injuries referred for assessment to Medical Assessor Jonathan Shahzad (the Medical Assessor) in respect of the dispute as to threshold injury were:

   ·     whether the injury to the Injury to the cervical spine caused by the accident was a threshold injury for the purposes of the Act;

   ·     whether the injury to the Injury to the lumbar spine caused by the accident was a threshold injury for the purposes of the Act;

   ·     whether the injury to the Injuries to the left hip caused by the accident was a threshold injury for the purposes of the Act;

   ·     whether the injury to the Injuries to the right hip caused by the accident was a threshold injury for the purposes of the Act;

   ·     whether the injury to the Injuries to the left knee caused by the accident was a threshold injury for the purposes of the Act;

   ·     whether the injury to the Injuries to the right knee caused by the accident was a threshold injury for the purposes of the Act;

   ·     whether the injury to the Injuries to the left shoulder caused by the accident was a threshold injury for the purposes of the Act, and

   ·     whether the injury to the Injuries to the right shoulder caused by the accident was a threshold injury for the purposes of the Act.

2. At [3]-[4] in his reasons, Medical Assessor Shahzad noted the submissions made by
   Mr Mrkela and NRMA.

3. The Medical Assessor took a pre-accident medical history at [9]:

   “Mr Mrkela was involved in a motor vehicle accident on 26 June 2014. He sustained injuries to his neck, back, right and left shoulders. He reported that he was fully recovered from the accident and there was no pain in the shoulder after the first accident. He had mental health issues and was diagnosed with Post-Traumatic Stress Disorder. He has a history of hypertension, hyperlipidaemia, and a severely infected prostate and was seen by a specialist three weeks ago and was on medications for it. He was born in Zadar, Croatia, and moved to Belgrade due to the war, where he completed his education. He was a refugee in Siberia from 1995 until he migrated to Australia in 1999 with his family.”

4. The Medical Assessor took a history of the accident at [10] and a history of the symptoms and treatment following the accident at [11]:

   “Mr Mrkela was involved in a motor vehicle accident on 3 May 2021 at approximately 6:15 AM. He was seat belted and was driving Nissan-Patrol in a 110-kilometre per hour zone along M1, Ourimbah approximately 3 kilometres south of the Pacific Highway off-ramp. He reported that an accident had occurred in front, and as a result, the traffic was slow and was moving at around 20 kilometres per hour. Another vehicle behind him failed to stop and collided with his vehicle from the rear at a speed of about 110 kilometres per hour. The impact caused his car to be displaced by approximately 30 metres. He reported that the airbags were equipped but did not deploy upon impact. He remained conscious throughout the incident and was unable to exit the car through the window. Moreover, he was also unable to open the driver’s door. He waited for approximately 45 minutes for the fire brigade to arrive and assist. During this time, his car started to burn and emit smoke within the interior. He reported that the fire brigade cut him out of the vehicle 25 minutes later.”

5. Following the accident, he was transported by ambulance to Gosford Hospital. At the emergency department, he underwent a series of medical assessments, including X-rays of his neck and shoulders and CT of the brain and cervical spine. These scans did not reveal any bone injuries or fractures. Following a thorough evaluation, he was discharged from the hospital with a recommendation to utilise simple analgesia.

6. The Medical Assessor listed the current symptoms at [13].

7. Mr Mrkela reported pain in the lower back, neck, shoulders, and knees and limited range of movement in daily activities. He pointed out pain in his shoulders, lower back more on the right leg, right hip and into his right knee with pins and needles in his knees, and elbows, and numbness in his shoulders.

8. Mr Mrkela attended regular appointments with his general practitioner Dr Krisimir Tomka and orthopaedic surgeon, Dr Medhat Guirgis.

9. The Medical Assessor set out the clinical examination at [16] – [20]:

   “16. General Presentation

   All movements performed in today’s examination were active and voluntary. No movements were undertaken to the point that they would have caused or inflicted any further injury or pain.

   All measurements were done with a goniometer and inclinometer. All measurements were repeated three times for consistency if required. A tape measure was used. The active range of motion, ROM, was measured with the passive range of motion reserved for clinical and diagnostic verification. The claimant was advised that examination would be with all measured movements within a pain-free range and that there might be some discomfort at the upper limit of movement which should be reported immediately, and the movement will be discontinued.

   Mr Mrkela was a right-hand dominant. He presented as a 49-year-old male standing 191 centimetres tall and weighing 130 kilograms. He has a BMI of 35.6 kg/m².

   He needed assistance from his wife with taking off his shirt. He could not still for more than 10 minutes on his right side. He was leaning towards the right side when walking. He was able to walk on his tiptoes and on his heels. He was able to do a partial squat.

   17. Cervical spine (cervicothoracic)

   On examination, cervical rotation was normal. Lateral flexion of the cervical spine was half of normal. Flexion and extension of the cervical spine are half of normal.

   Cervical compression test was negative. This test was conducted with the patient in sitting, the examiner passively extends the cervical spine and applies axial compression to detect disc pathology.

   18. Lumbar spine (lumbosacral)

   On examination, he has pain around the L5/S1 area. When testing the range of movement, forward flexion up to knee level. He has loss of lordosis in the lumbar spine. Extension was half of normal on the lumbar spine movements. Lateral rotation was absent. Lateral flexion was up to the knee level bilaterally. Straight leg raise test could not be tested on the right side because of hip pain. The left leg straight leg raise test was a little bit better. He has shooting pain down the leg on the right side.

   19. Upper extremity

   The right and left shoulder has a and Neer impingement testing was positive on the right side, negative on the left side.

   He has pins, needles, and numbness in his hands 80% of the time. Dynamometer grip strength assessment showed 8.7kg on the right side and 11.2kg on the left side. He has weakness on both hands.

   Reflexes are good bilaterally. With sensory testing, sensation was more on the right side. He was able to cross his leg on other leg bilaterally.

   20. Lower extremity

   He had a good range of movement on the knee. Hip joint movements are painful. He has more pain in the right hip. Left hip movements are a little bit better but similar pain. He has occasional pins, needles, and numbness in the feet and toes.

   Hips

   Right, left hip acetabular impingement, patellofemoral crepitus, but normal range of movement.

   Knees

   There was no muscle guarding, swelling, rigidity or muscle spasm noted over both knees. There was no tenderness, effusion or deformity noted over the medial and lateral joint line, medial collateral ligament, lateral collateral ligament, pes anserine bursa, and patellofemoral joint.

Active Range of Motion - Knees
Movement	Normal Range	Right knee	Left knee
Flexion/ contracture	150°	150°	150°
Extension	0°	0°	0°
Varus	0°	0°	0°
Valgus	0°	0°	0°

Apley’s test was negative. The test was conducted with the patient in prone and the knee flexed to 90 degrees. The patient’s thigh was stabilised by the examiner and the tibia was laterally and medially rotated combined with distraction.

McMurray’s test was negative. The test was conducted with the patient in supine, knee fully flexed, the examiner palpates the joint line and applies varus or valgus stress, internal or external rotation and knee extension.

Anterior (sensitivity =0.92, specificity = 0.91) and posterior drawer (sensitivity =0.9, specificity = 0.99) tests were negative. This test was conducted with the patient in supine, knee flexed, and foot supported; the examiner immobilises the foot and applies pressure to the tibia anteriorly or posteriorly.”

1. The Medical Assessor provided a summary of relevant radiological and medical imaging at [22]-[23].

2. In his determination, the Medical Assessor considered the issue of causation:

   “Mr Mrkela was involved in a motor vehicle accident on 3 May 2021 at approximately 6:15 AM. He was seat belted and was driving a Nissan Patrol in a 110-kilometre per hour zone along M1, Ourimbah approximately 3 kilometres south of Pacific Highway off-ramp. He reported that an accident had occurred in front, as a result, the traffic was slow and was moving at around 20 kilometres per hour. Another vehicle behind him failed to stop and collided with his vehicle from the rear at a speed of about 110 kilometres per hour. The impact caused his car to be displaced by approximately 30 metres.

   He reported that the airbags were equipped but did not deploy upon impact. He remained conscious throughout the incident and was unable to exit the car through the window. Moreover, he was unable to open the driver’s door. He waited for approximately 45 minutes for the fire brigade to arrive and assist. During this time, his car started to burn and emit smoke within the interior. He reported that he experienced considerable pain in his hips, knees, and shoulders, as a result, he was unable to stand or walk at the scene of the accident.

   Following the accident, he was transported by ambulance to Gosford Hospital. At the emergency department, he underwent a series of medical assessments, including x-rays of his neck and shoulders. These scans did not reveal any bone injuries. Following a thorough evaluation, he was discharged from the hospital.

   He consulted his general practitioner, Dr Kris Tomka at Bathurst Street Medical Practice on 4 May 2021 with a complaint of pain in the neck, upper and lower back, both shoulders, hips, and knees. Dr Tomka noted that he had a reduced range of movement in the neck, shoulders and back, and hips, as well as his knees were swollen.”

3. He determined that the following injuries were caused by the accident:

   ·        cervical spine musculo-ligamentous injury;

   ·        lumbar spine musculo-ligamentous injury;

   ·        left shoulder rotator cuff syndrome;

   ·        right shoulder rotator cuff syndrome;

   ·        right hip musculo-ligamentous, tendinopathy;

   ·        left hip musculo-ligamentous, tendinopathy;

   ·        right knee musculo-ligamentous, chondromalacia patellae, tear, and

   ·        left knee musculo-ligamentous, chondromalacia patellae, tear.

4. Medical Assessor Shahzad concluded that the following injuries were a threshold injury:

   ·        cervical spine caused by the accident was a threshold injury for the purposes of the Act;

   ·        lumbar spine caused by the accident was a threshold injury for the purposes of the Act, and

   ·        right shoulder caused by the accident was a threshold injury for the purposes of the Act.

5. He further concluded that the following injuries were not a threshold injury:

   ·        left hip caused by the accident was not a threshold injury for the purposes of the Act;

   ·        right hip caused by the accident was not a threshold injury for the purposes of the Act;

   ·        left knee caused by the accident was not a threshold injury for the purposes of the Act;

   ·        right knee caused by the accident was not a threshold injury for the purposes of the Act, and

   ·        left shoulder caused by the accident was not a threshold injury for the purposes of the Act.

REVIEW PROCEDURE

1. Mr Mrkela lodged an application for review of the assessment of the Medical Assessor.

2. On 1 February 2024, the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).

3. 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.

4. The review was by way of a new assessment of all matters with which the medical assessment was concerned.

SUBMISSIONS

NRMA’s submissions, dated 4 December 2023

1. The Panel summarises NRMA’s submissions by reference to paragraph number;

   [4]     Mr Mrkela was involved in a previous motor vehicle accident in 2014 claiming injuries to the neck, bilateral shoulders and right arm.

   [5]     Dr Guirgis, on 4 February 2016, provided a diagnosis of injury to the neck, lower back, and right shoulder. Imaging confirmed significant pathologies to these areas.

   [6]     Mr Mrkela was involved in a motor vehicle accident on 3 May 2021. Mr Mrkela was ambulant at the scene and complaints of neck pain, right shoulder pain, and chest pain consistent with seatbelt.

   [7]     Mr Mrkela was transported by ambulance to Gosford Hospital and no abnormalities identified on CT of the brain and cervical spine given complaints of neck and chest pain.

   [8]     Mr Mrkela lodged a Claim on 27 May 2021 claiming injury to the neck, back, both shoulders, head, both knees, both elbows, both hips, and psychological.

   [9]     Mr Mrkela underwent further imaging which evidenced the following:

   (a)15 January 2022 MRI Left knee - Moderate proximal patellar tendinopathy with thickening and grey signal medial one half proximal patellar tendon. Moderate chondromalacia patellae and background patellar maltracking. No medial meniscal tear. Undisplaced horizontal/cleavage tear anterior body, anterior horn/body/ posterior horn lateral meniscus extending to the superior articular surface.

   (b)15 January 2022 MRI Right knee - Moderate proximal patellar tendinopathy. Moderate chondromalacia patellae with background patellar maltracking. No medial meniscal tear. Undisplaced cleavage tear anterior horn/body lateral meniscus extending to the inferior articular surface.

   (c)15 January 2022 MRI Right hip - Femoral acetabular impingement cam type with anterior labral tear and separate area of chondral labral separation posterior one half of superior labrum. There was pistol grip deformity femoral head neck Junction and dysplastic bony bump at the anterolateral aspect proximal femoral physical scar. Mild to moderate hamstring origin tendinopathy.

   (d)15 January 2022 MRI Left Hip - Femoral acetabular impingement cam type with anterior labial tear extending anterosuperior-laterally to involve the anterior one-half superior labrum. Mild degenerative change of the hip with acetabular chondral flap and mild to moderate chondral wear of the posteroinferior quadrant of the femoral head. Mild to moderate gluteus minimus insertional tendinopathy and greater trochanteric bursitis. Mild to moderate hamstring origin tendinopathy.

   Issue 1: left shoulder non-threshold pathology

   [11]   NRMA highlighted Dr Guirgis’ report dated 20 May 2022 stating in relation to the 26 June 2014 accident that there was MRI evidence of subscapularis tendonitis and a SLAP tear in the left shoulder. No injury or pathology was attributed to the left shoulder as a result of the subject accident in this report.

   [12]   NRMA submitted the Medical Assessor’s Certificate failed to identify the non-threshold pathology attributable to the subject accident with respect to the left shoulder.

   [13]   NRMA submitted that in the absence of imaging evidencing non-threshold pathology, the Medical Assessor had a heightened requirement to provide reasons for his finding that the alleged injury to the region satisfied the definition of non-threshold injury under the Act.

   [14]   NRMA submitted that the Medical Assessor had failed to discharge his obligation to provide reasons in sufficient detail to enable a court to determine whether the opinion does or does not involve any error of law.

   [15]   NRMA submitted the Medical Assessor’s reasons were inadequate to determine the issue of causation of the non-threshold pathology. NRMA highlighted the Medical Assessor’s reasons failed to discuss what the post-accident pathology was, what the pre-accident pathology was, any changes in the pathology, whether those changes were consistent with the passage of time over the intervening 7 years, or any other factor.

   [17]   NRMA submitted this was an impermissible approach to causation. NRMA highlighted clause 6.6 of the Guidelines highlighting the correct approach to causation as to whether the subject accident could have caused and whether it did cause the non-threshold pathology.

   Issue 2: Causation

   [19]   The Medical Assessor found the cervical, lumbar and right shoulder pathologies to be threshold injury.

   [20]   The Medical Assessor found the bilateral hip, bilateral knee, and left shoulder injuries to not be threshold injury.

   [21]   NRMA highlighted there were no reasons provided for each of these determinations.

   [22]   NRMA submitted that the Medical Assessor had failed to discharge his obligation to provide reasons in sufficient detail to enable a court to determine whether the opinion does or does not involve any error of law. This included as to whether the Medical Assessor considered irrelevant considerations, misconstrued his statutory obligations such as approach to causation, or whether the opinion was arbitrary, capricious, irrational, or not bona fide.

   [23]   NRMA submitted the Medical Assessor’s reasons with respect of the non-threshold determinations, or lack thereof, appeared to be redolent of the post hoc ergo propter hoc fallacy. In other words, because the alleged pathologies were identified following the subject accident, then they must have been caused by the subject accident.

   [24]   NRMA submitted this was an impermissible approach to causation. NRMA highlighted cl 6.6 of the Guidelines describes the correct approach to causation as to whether the subject accident could have caused and whether it did cause the non-threshold pathologies.

   [25]   NRMA submitted the Medical Assessor had a heightened requirement to provide reasons for his determinations given that NRMA’s position was that the non-threshold pathology was degenerative in nature. NRMA further submitted that it was not sufficient for the pathology to be rendered symptomatic, but that the non-threshold pathology must have been caused or further aggravated by the subject accident

   Issue 3: Inconsistency

   [26]   The Medical Assessor at [24] recorded Mr Mrkela reported “that he experienced considerable pain in his hips, knees, and shoulders, as a result, he was unable to stand or walk at the scene of the accident.”

   [27]   NRMA highlighted the 2 May 2021 Ambulance Report stating: Not c/o . Of any injuries […] Once pt released he go out and walked around scene despite Paramedics requesting pt stay still. After few moment pt do headache, 6/10 c spine Pain, r shoulder pain and cp from seatbelt.

   [29]   NRMA submitted the Medical Assessor failed to put to Mr Mrkela the inconsistency between the ambulance report stating Mr Mrkela was ambulant at the scene and his reporting to the Medical Assessor that he was unable to stand or walk at the scene due to the injuries to the hips, knee, and shoulders.

   [30]   NRMA submitted the Medical Assessor had failed to afford the parties procedural fairness given the inconsistencies were not put to the claimant.

Mr Mrkela’s submissions in reply, dated 15 January 2024

1. Mr Mrkela submitted that the reasoning of Medical Assessor Shahzad was evident from the passages on pages 6 and 7 regarding the history of symptoms and treatment following the motor accident:

   “On 12 October 2021, he underwent MRI of his right shoulder which showed the presence of mild acromioclavicular joint degeneration, along with labral detachment. His pre-existing condition was further aggravated by the accident.

   On the same day, he underwent x-rays of both hips and knees which revealed mild degeneration. Additionally, he had ultrasounds of his left and right hips which showed normal results.

   He consulted orthopaedic surgeon, Dr Medhat Guirgis on 26 October 2021 who noted signs of rotator cuff syndrome in both of his shoulders and injury to both hips with the onset of symptoms of greater trochanter pain syndrome, as well as injury to both knees, with the onset of symptoms of patellofemoral pain syndrome. Dr Guirgis referred him for an MRI of his hips and knees.

   He was referred for physiotherapy with Ms Luka Kaluderovic (Bodyhealth Physiotherapy). He commenced physiotherapy on 28 October 2021.

   Due to his persistent pain and cracking sensation in both knees, he underwent an MRI of both knees on 15 January 2022, which revealed injuries to his left and right knees. His left knee exhibited patellar tendinopathy, chondromalacia patella, and a lateral meniscal tear. Similarly, his right knee displayed patellar tendinosis, chondromalacia patella, and a lateral meniscal tear. These findings underscore the multi-faceted nature of his Injuries, affecting various parts of his body.

   He also underwent an MRI of bilateral hips which revealed the presence of acetabular impingement.

   He sought specialised medical attention in 2022 and underwent injections into both shoulders which helped him for a couple of months and then the pain recurred.

   He reported that he was recommended surgery on the lower back, right shoulder and C4 and C5 levels, but he was a bit scared. He had pain in the right hip, but he was unable to explain the strange pain in his hips.

   On 20 May 2022, he visited orthopaedic surgeon, Dr Medhat Guirgis who noted that he had recurrence and aggravation of right C6/7 cervicobrachial symptoms, pain and stiffness in bilateral shoulders, and right L5/S1 lumbosacral symptoms. He also noted pain, clicking and weakness with stiffness in bilateral hips and knees. Dr Guirgis assessed 21 % Whole Person Impairment including 11% of left lower extremity and 11% of right lower extremity.

   Following the accident, his mental health was affected significantly. He reported, "What I'm thinking I am going to burn in the car . . . because spark coming with the big grinder, my car starts burning ... fire and all the smoke come inside and I'm helpless to do anything ... it’s very bad."

2. Mr Mrkela submitted that the areas of injury which Medical Assessor Shahzad found to be non- threshold injuries, and therefore warranting common law damages, were his hips, where an MRI showed "acetabular impingement" and his knees, where MRl’s demonstrated "patellar tendinopathy, chrondromalacia patella, and a lateral meniscus tear".

3. Medical Assessor Shahzad noted that "these findings underscore the multi-faceted nature of his injuries, affecting various parts of his body”.

4. Mr Mrkela submitted that Medical Assessor Shahzad found that Mr Mrkela was "consistent in his clinical presentation" on page 9 of his certificate. Medical Assessor Shahzad finds the accident occurred at high speed, and that Mr Mrkela had to be extricated from his vehicle through the window of his vehicle he walked around the scene then "layed supine on stretcher".

5. Mr Mrkela submitted that the ambulance record dated 3 May 2021 and contained in his application, showed that once he had been extricated through the window of his vehicle, he walked around the scene then “layed supine on stretcher”;

   “THROUGH WINDOW. ONCE PT RELEASED. HE GO OUT AND WALKED AROUND SCENE DISBITE PARAMEDICS REQUESTING PT STAY STILL, AFTER FEW MOMENTS PT c/o HEADACHE, 6/10 C SPINE PAIN, R SHOULDER PAIN AND CP FROM SEATBELT, EQUAL BREATH SOUNDS. PT LAYED SUPINE ON STRETCHER, C SPINE COLLAR INSITU, IV ACCESS.GAINED, ONDANSATRON, MORPHINE ADMINISTERED WITH HARTMANS RUNNING, PT BP INITIALLY 90 SYSTOLIC ALL OTHER OBSERVATIONS STABLE. CODE 3 PASSED TO GDH. PT PAIN REDCUDED TO A 4/10. 2.5MG MORPHINE DISGARDED AT GDH WITNESSED BY OFFICER MALONE.”

6. NRMA's submissions seek to cast Medical Assessor Shahzad's acceptance of Mr Mrkela’s statement that he could not walk as erroneous, when there was evidence that after he had walked around the scene - which was common for those in shock - he laid supine on the ambulance stretcher.

7. Mr Mrkela submitted that as a matter of causation, there was abundant evidence that despite the earlier accident in 2014, the body areas found by Medical Assessor Shahzad to be non-threshold injuries were not significantly injured in the earlier accident - i.e. the left shoulder - and/or had fresh MRI evidence to support significant pathology which would make them non-threshold injuries – Mr Mrkela's left and right knee and left and right hip.

EVIDENCE BEFORE THE REVIEW PANEL

Personal Injury Claim Form dated 2 July 2014

1. In a Personal Injury Claim form dated 2 July 2014, Mr Mrkela noted injuries to his neck radiating to his right arm, right shoulder, left shoulder, middle, and lower back. He stated that he was unable to work fully as a carpenter, cannot complete domestic duties, and suffered from insomnia.

Personal Injury Claim Form dated 27 May 2021

1. On 27 May 2021, Mr Mrkela listed the following injuries on the form: neck, back, both shoulders, head, both knees, both elbows and both hips.

Dr. Guirgis' Medicolegal report dated 5 May 2016

1. On 5 May 2016, Dr Guirgis completed a medicolegal report noting pain involving his neck, right shoulder, left shoulder, tingling, and numb sensations more in the right than the left hand and fingers, low back pain and stiffness with radiation to the right leg and less in the left leg in the L5 distribution.

2. He had been off work since February 2016, suffering from acute, severe lumbar episodes that failed to resolve with usual treatment. The diagnosis for the cervical spine was mechanical derangement caused by musculoligamentous strain aggravating underlying spondylotic changes with a central posterior annular tear and broad-based disc protrusion at the C4-C5 level and left contralaterally oblique posterior disc osteophyte protrusion at C5-C6. The symptoms and signs of numbness and weakness in his right arm were consistent with right C6-C7 radiculopathy and electrophysiological evidence of mild right C6-C7 radicular irritation, as well as right and left carpal tunnel syndrome indicating a diagnosis of the double crush syndrome.

3. Symptoms were noted in both shoulders and lumbar spine. There was a broad-based disc/ridge complex at L5-S1 irritating the right S1 nerve root.

4. He was awarded a 6% whole person impairment for the right shoulder, 6% for the left shoulder, 5% for the cervical spine, and presumably 5% for the lumbar spine.

MRI and nerve conduction studies

1. An MRI scan of the right shoulder on 12 December 2014 showed subscapular tenderness with a tiny partial thickness tear, detachment of the labrum, and AC joint arthrosis.

2. Nerve conduction studies on 12 March 2015 showed moderate to severe bilateral carpal tunnel syndrome and cervical radiculopathy involving the right C6-C7.

MRI scan of the cervical spine on 2 February 2015

1. This scan showed mild cervical spondylosis with abutment of the cord at C5/6 and foraminal narrowing most significant on the left at C5/6 with potential C6 impingement.

MRI scan of the lumbar spine on 28 July 2017

1. An MRI scan of the lumbar spine on 28 July 2017 showed an extruded disc at L3-L4.

Dr Tomka's Medical Certificate, 2 August 2014

1. A medical certificate completed by Dr Tomka on 2 August 2014 stated that the patient had neck, upper middle, and lower back injuries, both shoulders affected, and right-sided sciatica.

Report of Medical Assessor Moloney, dated 13 June 2016

1. Medical Assessor Moloney examined Mr Mrkela on 9 June 2016, noting injuries to the cervical spine, lumbar spine, right shoulder, and left shoulder. At that time, he had lower back pain radiating to the right gluteal region and associated burning in the back of his calves, mild symptoms on the left side, as well as central neck pain radiating down to the interscapular area, pain radiating to his right arm, right shoulder pain, and numbness in his right thumb and index finger, occasionally in the middle finger. Shoulder pain increased when elevating his arm above shoulder height. He testified that he has not worked since the motor vehicle accident on 26 June 2014.

NSW Ambulance report, 3 May 2021

1. On May 3, 2021, a 46-year-old male, Mr Mrkela, was involved in a medium-speed motor vehicle accident while driving. He was hit from the rear and side, which resulted in his vehicle being pushed into the breakdown lane. At the scene, he was initially coded as a category 9 by confinement but did not complain of any injuries while still inside the vehicle. Despite paramedics' advice to remain still for assessment, Mr Mrkela exited the vehicle and walked around the scene.

2. Shortly thereafter, he began to experience several symptoms, including a headache, significant cervical spine pain rated at 6/10, right shoulder pain, and chest pain from the seatbelt impact. His breathing sounds were equal on both sides, indicating no immediate respiratory complications from the chest pain. Due to his symptoms, he was laid supine on a stretcher, and a cervical spine collar was placed to immobilize his neck. Intravenous access was established, and he was administered Ondansetron and Morphine for pain management, along with Hartmann's solution for fluid replacement.

Discharge Summary from Gosford Hospital, 3 May 2021

1. Mr Mrkela, a 46-year-old male, was admitted to the emergency department of Gosford Hospital on 3 May 2021 following the accident. During the incident, Mr Mrkela was the driver and was rear-ended, resulting in damage to the right rear end and right side of his car. Despite wearing a seatbelt, the airbags did not deploy. Initially, Mr Mrkela was unable to exit the vehicle due to the door being jammed from the impact but was extricated by emergency services.

2. Upon arrival at the hospital, Mr Mrkela complained of neck and chest pain. The medical examination conducted by Dr Katharine Yan revealed no evidence of head injury or intracranial pathology, as confirmed by a CT scan. Similarly, a CT scan of the cervical spine showed no fractures or acute injury. His vital observations were within normal limits, and he was alert and oriented with a full recollection of the event.

3. Physical examination indicated midline cervical spine tenderness at C3/4 but no evidence of chest injury or impaired air entry. The abdomen was soft, non-tender, and non-distended (SNT), and the pelvis was stable. There was no indication of limb, back injuries, or midline spinal tenderness in the thoracolumbosacral spine.

4. During his short stay in the emergency department, Mr Mrkela did not require further analgesia, was able to mobilize safely, and tolerated oral fluids well. The clinical team cleared his cervical spine, noting no significant midline pain on palpation and good range of motion without pain.

5. The plan upon discharge was for Mr Mrkela to return home and manage any residual pain with simple analgesia.

R30 Clinical records – Dr Tomka various dates

1. 9 December 2014: Initial consultation with Dr Krisimir Tomka; complaints of neck pain, pain in both shoulders, and upper and lower back pain. MRI recommended for neck, upper and lower back, and both shoulders.

2. 17 August 2015: Complained of low back pain; endoscopy performed with no malignancy found.

3. 6 November 2015 - 23 November 2015: Continued complaints of neck and back pain; treatment with physiotherapy and Mersyndol Forte initiated.

4. 7 January 2016 - 12 February 2016: Persistent back and neck pain; prescription for Tramal SR (sustained release) and treatment for haemorrhoids with Proctosedyl.

1. 9 March 2016 - 26 April 2016: Several consultations for lumbar-sacral pain; consistent prescriptions for Tramal SR.

2. 10 May 2016 - 14 June 2016: Ongoing back pain management with Tramal SR; no new symptoms reported.

3. 5 August 2016 - 22 September 2016: Continued chronic pain treatment; consistent use of Tramal SR for pain management.

4. 5 October 2016 - 3 November 2016: Regular treatment sessions for back pain; prescription adjustments for Tramal SR.

5. 20 January 2017 - 13 March 2017: Complaints of pain in the neck, upper and lower back, and both shoulders; began treatment with Cymbalta for depression and pain management.

6. 26 April 2017 - 2 June 2017: Regular follow-ups for back pain; adjustments to Tramal prescriptions.

INVESTIGATIONS

1. MRI of the lumbar spine (5 February 2016): Normal vertebral body alignment with no compression injury was found.

2. MRI of the right shoulder (12 December 2014): Showed subscapular tenderness with a tiny partial thickness tear, detachment of the labrum, and AC joint arthrosis.

3. MRI of the cervical spine (2 February 2015): Mild cervical spondylosis with abutment of the cord at C5/6, and foraminal narrowing significant on the left at C5/6, potential C6 impingement.

4. MRI of the lumbar spine (28 July 2017): Exhibited an extruded disc at L3-L4.

5. MRI of the bilateral hips and knees: Reported a labral tear in the context of degenerative signs of tendinopathy in the hips. The MRI of the bilateral knee scan reported the presence of an undisplaced cleavage tear in the context of degenerative signs of proximal patellar tendinopathy and patellar maltracking.

6. CT brain and cervical spine (3 May 2021): No acute intracranial haemorrhage, extra-axial collection, or recent cortical infarction. No mass effect, and normal alignment of the cervical spine was maintained without any acute fractures or dislocations.

7. MRI of the right shoulder (12 October 2021): Mild acromioclavicular joint degeneration and labral detachment consistent with findings from 2014.

8. X-rays of both hips and knees (12 October 2021): Revealed mild degeneration.

9. Ultrasound of both hips (12 October 2021): Normal results were reported.

10. MRI of the left knee (15 January 2022): Indicated patellar tendinopathy, chondromalacia patella, and a lateral meniscal tear.

11. MRI of the right knee (15 January 2022): Showed patellar tendinosis, chondromalacia patella, and a lateral meniscal tear.

12. MRI of the bilateral hips (date not specified): Revealed the presence of acetabular impingement.

REVIEW PANEL DIRECTIONS

1. On 14 May 2024, the Panel produced the following directions:

   “1.     The claimant on 30 April 2024, sought leave to lodge late documents.

   2.      The Insurer on 10 May 2024, objected to the admission of late documents.

   3.      The late documents consist of:

   (a) The report of Dr Guirguis dated 18 April 2024

   (b) The claimant’s bundle of documents (paginated 1 to 295)

   (c) A video of the accident

   4.      Significantly, the late documents include documents which could be important for the Panel’s decision. These documents include for example, a video said to depict the scene of the accident including a vehicle turned on its side.

   5.      There are other documents which could be material to the Panel’s decision, particularly without derogating from the relevance of others:

   (a) Police report

   (b) Ambulance report

   (c) Gosford Hospital clinical notes

   (d) Clinical notes of the treating medical practitioner, Dr Tomka, at Bathurst Street Medical Practice

   6.      The Panel refers to Procedural Direction PIC3, in determining an application for leave to admit late documents, the following matters will be considered:

   (a) The interests of justice;

   (b) the requirements of the PIC Rules;

   (c) the submissions of the parties including the adequacy of the moving party’s reason/s for the delay in lodging the document/s;

   (d) any prejudice that would result from granting or refusing leave to admit the documents;

   (e) the effect, if any, on the timely resolution of the dispute, and

   (f) the objects of the Commission under sections 3 and 42 of the PIC Act.

   The Panel directs as follows:

   7.      By 5pm on Friday 17 May 2024 the Claimant’s solicitor was to provide a full explanation for the delay, and how the Claimant’s case will be prejudiced if the application for late documents was rejected.

   8.      The Panel further directs the Claimant’s solicitor to clarify the circumstances of the accident and produce images of the damaged vehicle, in order for the Panel to assess the motor accident.

   9.      By 5pm on Friday 17 May 2024, the Insurer was to make a submission on whether or not the late document should be admitted and why or why not.”

2. On 16 May 2024, the Panel produced further direction to assist with the Panel’s deliberations:

   “1.     The Review Panel has not arrived at any conclusions in respect of the accident, as it was still missing documents and information which it requires before completing its deliberations.

   2.      The Review Panel considers it important that it have available any photographs, video or CCTV footage taken at the time of the accident.

   3.      The Review Panel will admit late documents going to the central issue of causation, and the extent of the damage done to the vehicle, or relevant vehicles at the time of the accident, and other matters relevant to the nature and extent of the injuries.

   4.      The Review Panel has considered the Channel 7 video provided by the claimant but does not know whether the claimant was directly involved in the incident depicted in the photograph.

   5.      The Review Panel still does not have the documents identified in its Direction on 14 May 2024, and requires them without further delay.

   The Panel directs as follows:

   6.      The Review Panel will allow until 5pm 31 May 2024, for the Insurer to make any further submissions, and in particular with respect to the late documents.

   7.      The Review Panel asks the claimant to clarify the circumstances of the accident and produce the relevant photographs, video or CCTV footage taken at the time of the accident, which will be necessary for the completion of the Medical Review.”

3. On 21 May 2024, the Panel made further directions to the parties:

   “1.     The claimant submitted an application to Admit Late Documents on 22 April 2024 and 30 April 2024.

   2.     The Panel made Directions on 14 and 16 May 2024, requesting submissions from both parties.

   Insurer’s submissions

   3.      The Insurer objects to the Claimant's report by Dr Guirgis dated 18 April 2024 and submitted it should not be admitted by the Review Panel.

   4.      The Insurer submitted that the report by Dr Guirgis dated 18 April 2024 appears to have been obtained by the claimant to respond to the PIC Certificates by Medical Assessor Shahzad dated 19 October 2023 concerning whole person impairment and 27 October 2023 relating to threshold injuries, the latter being the subject of this review application.

   5.      The Insurer further submitted that if the Panel grants leave to the claimant to admit the late report by Dr Guirgis, the Insurer will be denied procedural fairness because this leaves the Insurer without being afforded an opportunity to obtain a report in reply.

   6.      The Insurer submitted if the Panel admits the bundle of documents, including the video footage, it will be prejudicial to the Insurer because it has not, as a matter of procedural fairness, been afforded an opportunity to obtain any evidence in reply and verify the veracity of the footage.

   7.      The Insurer refers to the correspondence by the Claimant, on the portal, dated 15 May 2024, where the claimant consents 'to the medical assessment being delayed to allow the Insurer to obtain a report in reply' to Dr Guirgis' report dated 18 April 2024. The Insurer submitted this approach cannot be maintained because it will affect the timely resolution of the dispute and was not in accordance with the objects of the Commission under sections 3 and 43 of the PIC Act.

   Claimant’s submissions

   8.     The claimant submitted that it was in the interests of justice that the Panel have regard to the report of Dr Guirgis even if it means a delay was necessary to allow time for the Insurer to obtain a report in reply.

   9.      The report sets out Dr Guirgis’ assessment of WPI having regard to the Medical Assessment Certificates of Medical Assessor Shahzad and Roberts.

   10.    The claimant further submitted that it would be prejudicial to the claimant should this report not be admitted.

   11.    The claimant’s solicitor provided clarification of the circumstances of the subject accident: “An accident had occurred further along the road and the traffic had slowed to around 20km/h. A van behind the claimant's vehicle did not slow down and ran into the back of the claimant's vehicle at a speed the claimant understands to be around 11 5km/h. This caused the claimant's vehicle to move forward and to the left about 30 metres into the break down lane of the motorway. The van which collided with the claimant's vehicle turned over on to its side.”

   The Panel directs as follows:

   12.    Given the Insurer submissions, and taking all matters into consideration, on the balance of prejudice, there was little to no prejudice to the Insurer. However, the Panel considers a refusal of the documents could cause prejudice to the Claimant, as they are material to this Review. The Panel directs that the documents be produced to Pathways by 24 May 2024 at 5pm.

   13.    Noting the Insurer’s submissions as to an opportunity to obtain a report in Reply, and evidence in reply to verify the veracity of the footage, while it was considered that the Insurer did have ample opportunity to do this, the Panel allows the Insurer until 15 July 2024, to upload any report in Reply to Pathways.”

LATE DOCUMENTS

1. The Panel accepted the following late documents, taking into account the interests of justice and that any prejudice caused to NRMA, compared to that of the claimant, Mr Mrkela, would be minimal.

Dr Guirgis’ report, 18 April 2024

1. Dr Guirgis examined Mr Mrkela on 18 April 2024 and reported the following clinical findings:

   “●      Cervical spine: Normal cervical lordosis lost- active range of movements restrictions: 20 % of flexion/extension, 50 % of the side flexion/rotation to the right, 35 % of the side flexion/rotation to the left, and with guarding on trying to exceed this range - tenderness over the C5 and C6 spines & spaces - No neurological deficits.

   ·        Right shoulder: Active range of movements: Abd: 140 - Add: 30 - Flex: 150 - Ext: 20. Ext Rot: 70 - Int Rot: 70 with altered rhythm between glenohumeral and scapulothoracic movements; and positive Hawkins - Kennedy Impingement Test and The Neer's Impingement Tests.

   Left Shoulder: Active range of movements: Abd: 160 - Add: 40. Flex: 170 - Ext: 40 – Ext Rot: 50. Int Rot: 70 with altered rhythm between glenohumeral and scapulothoracic movements and positive impingement signs.

   ·        Lumbar Spine: Normal lumbar lordosis lost; restriction in the active range of movements 1/2 flexion/extension, and 2/3 side-flexion & rotation to the right and 1/3 side side-flexion & rotation to the left with guarding on trying to move beyond this range, and SLR: positive on the right at 50; and possible on the left to 70; tension signs positive on the right side, no demonstrable radicular involvement.

   ·        Right & Left Hip: Pain and tenderness were pointed to be felt over the trochanteric area and deep in the groin, active range of movements was flexion: 110, Extension: 20, Int Rot: 30, Ext Rot: 30, Abd 25, and add: 30.

   ·        Right & Left Knee: There was tenderness over the medial joint line and over the front of the knee. Movements of the knee joint were lacking the last degrees of flexion on the right side. The grinding test of the patella against the femoral condyles was positive and there was retropatellar crepitation and painful clicking heard and felt with flexion and extension of the knee.”

2. Dr Guirgis diagnosed that the 3 May 2021 road traffic accident resulted in the following injuries:

   “1. Further post-traumatic mechanical derangement of the cervical and lumbar areas of the spine including musculo-ligamentous sprain \ strain with possible further intervertebral disc involvement which had also triggered & aggravated the effects of underlying chronic posttraumatic and degenerative changes.

   2. Recurrence and aggravation of pain and stiffness that he used to feel dating back to an injury in 2014. The last time I saw him in this regard was in February 2016. He indicated that his right & left shoulder symptoms settled down to a symptomless state in 2018 and remained so until the 2021 road traffic accident happened.

   3. Post-traumatic symptoms in the right & left hip joints caused by contusion of the articular surfaces and spraining of the supporting capsular and ligamentous structures which had triggered & aggravated the effects of underlying asymptomatic age-appropriate and cam type femoral acetabular impingement degenerative changes. In the right hip there was MRI evidence of femoral acetabular impingement cam type with anterior labral tear and separate area of chondral labral separation involving the posterior one half of superior labrum. In the left hip, there was MRI evidence of anterior labral tear extending antero-superolaterally to involve the anterior one-half superior labrum.

   4. Post-traumatic symptoms in the right & left knee joints caused by contusion of the articular surfaces and spraining of the supporting capsular and ligamentous structures, which had triggered & aggravated the effects of underlying asymptomatic age-appropriate patellofemoral degenerative changes. In the right knee, there was MRI evidence of an undisplaced cleavage tear in the anterior horn/body of the lateral meniscus extending to its inferior articular surface. In the left knee, there was MRI evidence of an undisplaced cleavage tear in the anterior horn/posterior horn of the lateral meniscus extending to its superior articular surface.”

3. Dr Guirgis concluded that Mr Mrkela had suffered a total whole person impairment according to the combined charts of 21%.

Report of Dr Stephen Rimmer, orthopaedic surgeon, dated 6 June 2024

1. NRMA produced a report in reply to the report of Dr Guirgis of 18 April 2024.

2. Dr Rimmer took a history of the accident:

   “He describes driving his vehicle enroute to work. He was slowing down in traffic as there was a motor vehicle accident ahead. In so doing, he claims his vehicle was rear-ended. Airbags were not deployed. He required the jaws of life to be extricated. He was brought in by ambulance to Gosford Hospital. He claimed to have injured the following anatomic sites:

   (a)cervical spine;

   (b)thoracolumbar spine;

   (c)right and left shoulders;

   (d)right and left knees.

   After examination and investigations, he was discharged home the same day. He then sought medical attention through his general practitioner. He was assigned off work. He was referred to physiotherapy, which was still ongoing, i.e., 3 years post-subject accident. In approximately August 2021, he returned to work in management only. He ceased in February 2022 as he claims the pain was too much. He then closed his company. He has not worked since and was not looking for work. He was referred to Dr Murrell (Shoulder Specialist) in 2022. He described undergoing a cortisone injection to the right shoulder only with some beneficial effect. He claims he did not want to proceed with any surgical intervention.”

3. Dr Rimmer concluded that the history had remained unchanged since last assessed in October 2022.

4. He noted there were gross inconsistencies in the history and the claimant’s presentation, the latter showing normal clinical examination of all anatomic sites.

5. He made the following ‘updated diagnosis’:

   ·     resolved musculoskeletal strain, cervical spine;

   ·     resolved musculoskeletal strain, lumbar spine;

   ·     resolved soft tissue injury, right and left shoulders, and

   ·     resolved soft tissue injury, right and left knees.

6. Dr Rimmer further opined that:

   “I have now assessed Mr Mrkela on two occasions. Each time, it was clearly obvious he demonstrated abnormal illness behaviour for the purpose of personal financial gain.”

NRMA’s further submissions to the Panel, dated 9 July 2024

Early contemporaneous records

1. NRMA submitted that the early contemporaneous records supported a conclusion that

   
   

   Mr Mrkela only sustained soft tissue injuries:

   ·        page 4 of the police report dated 4 June 2021 stated as follows: 'The driver of the Patrol was conveyed to Gosford Hospital suffering minor injuries. The driver and the passenger of the Hiace which collided with the Patrol were conveyed to Royal North Shore suffering suspected leg injuries but were later cleared of any serious injuries.' NRMA highlighted the police report refers to both Mr Mrkela and Insured driver suffering only minor injuries (in the colloquial sense) as a result of the accident, and

   ·        the ED discharge report from Gosford Hospital dated 3 May 2021 recorded complaints by Mr Mrkela of neck pain only (again, our emphasis added). The CT brain and cervical spine report dated 3 May 2021 did not identify any injury to the cervical spine. NRMA submitted the initial evidence demonstrated Mr Mrkela did not sustain any injury from the accident and there was no injury identified or diagnosed on radiological investigations immediately following the accident.

Physical injuries

Cervical spine

1. NRMA submitted the Panel would be satisfied Mr Mrkela sustained a threshold injury to his cervical spine, for the following reasons:

   ·        Mr Mrkela’s expert, Dr Guirgis, in a report dated 22 April 2024, diagnosed him with 'post traumatic mechanical derangement of the cervical spine, including a musculoligamentous sprain/strain with possible intervertebral disc involvement.' (our emphasis added). NRMA submitted Dr Guirgis has assumed the presence of an intervertebral disc injury to the Claimant's cervical spine and does not refer to any medical evidence to support this assumption. Again, NRMA referred to the radiological investigations immediately undertaken in respect to the cervical spine at Gosford Hospital which did not identify any injury let alone a disc injury, and

   ·        

   Dr Rimmer, in a report dated 6 June 2024, diagnosed Mr Mrkela with a resolved musculoskeletal strain to the cervical spine (again, our emphasis added).

   
   

   Dr Rimmer did not observe any radiculopathy to either upper limb and Mr Mrkela demonstrated normal range of movement in the cervical spine without any obvious discomfort. NRMA submitted, as there was no radiculopathy and Mr Mrkela demonstrated normal range of movement, Mr Mrkela only sustained a threshold injury to his cervical spine.

2. NRMA highlighted that both Dr Guirgis and Dr Rimmer diagnosed Mr Mrkela with a musculoskeletal/musculoligamentous sprain/strain to the cervical spine which satisfied the definition of a threshold injury under s 1.6 of the MAI Act.

Lumbar spine

1. NRMA submitted that the Panel would be satisfied Mr Mrkela sustained a threshold injury to his lumbar spine, for the following reasons:

   ·        Dr Guirgis, in his report dated 22 April 2024 diagnosed Mr Mrkela with an 'aggravation of pain and stiffness in the lumbar spine that he used to feel dating back to an injury in 2014' (our emphasis added). NRMA highlighted, on page 2 of the report, Dr Guirgis did not observe any radicular symptoms in the Claimant's lumbar spine. Based on the Claimant's history and the findings of Dr Guirgis, NRMA submitted Dr Guirgis' diagnosis of 'aggravation of pain and stiffness' satisfies the definition of a threshold injury under section 1.6 of the Act as there was no radiculopathy nor any 'injury to the nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage';

   ·        Dr Rimmer, in his report dated 6 June 2024, diagnosed Mr Mrkela with a resolved musculoskeletal strain to the lumbar spine which was a threshold injury for the purposes of the Act, and

   ·        NRMA highlighted that Dr Rimmer did not observe the presence of any radiculopathy in the lumbar spine. Again, NRMA submitted that Dr Rimmer's diagnosis of the lumbar spine satisfied the definition of a threshold injury under the Act.

Right and left shoulders

1. NRMA submitted that the Panel would be satisfied Mr Mrkela sustained threshold injuries to his right and left shoulder, for the following reasons:

   ·        Dr Guirgis, in his report dated 22 April 2024, did not, on page 6 of this report, specifically diagnose Mr Mrkela with any injuries to either his left or right shoulder. NRMA submitted that Mr Mrkela’s own expert did not diagnose him with any shoulder injury arising from the accident, and

   ·        

   Dr Rimmer, in his report dated 6 June 2024, diagnosed Mr Mrkela with a resolved musculoskeletal strain to the left and right shoulder. NRMA submitted

   
   

   Dr Rimmer's diagnosis satisfied the definition of a threshold injury for the purposes of the Act.

Left and right hips

1. In relation to the assessment of the left and right hip injuries, NRMA submitted that

   
   

   Dr Rimmer's report dated 6 June 2024 should be preferred over Dr Guirgis' report dated

   
   

   22 April 2024, due to the following reasons:

   ·        

   Dr Guirgis, in his report dated 22 April 2024, refers to ongoing 'pain, clicking and a sense of weakness and stiffness in the right and left hips'. Dr Guirgis diagnosed

   
   

   Mr Mrkela with 'post traumatic symptoms in the right and left hip joints caused by contusion of the articular surfaces and spraining of the supporting capsular and ligamentous structures which had triggered and aggravated degenerative changes'. NRMA highlighted that Dr Guirgis appeared to have simply copied his findings of his previous report dated 20 May 2022 as his reference to Mr Mrkela’s ongoing hip symptoms in his current report dated 22 April 2024 was identical in wording to that recorded on page 2 of his previous report;

   ·        

   NRMA highlighted these ongoing symptoms recorded by Dr Guirgis were inconsistent with the fact Mr Mrkela did not report any hip symptoms at his examination with Dr Rimmer on 4 June 2024, less than two months later. NRMA submitted, in accordance with clause 5.6 of the Motor Accident Guidelines,

   
   

   Dr Guirgis' report dated 22 April 2024 should be given little weight as NRMA cannot be satisfied that Dr Guirgis' findings are based on the claimant's current symptoms;

   ·        Dr Rimmer, in his report dated 6 June 2024, did not refer to any ongoing symptoms reported by Mr Mrkela in his left or right hip and does not diagnose any hip injury arising from the accident, and

   ·        NRMA submitted Dr Rimmer's report should be preferred over that of Dr Guirgis' as it was more recent and Dr Rimmer's findings are based on Mr Mrkela’s presentation and reporting on the date of his examination.

Right and left knees

1. In relation to the right and left knee injuries, NRMA submitted Dr Rimmer's report dated

   
   

   6 June 2024 should be preferred over Dr Guirgis' report dated 22 April 2024, due to the following reasons:

   ·        Dr Guirgis, in his report dated 22 April 2024, referred to 'pain, clicking and a sense of weakness' in the right and left knees. Again, NRMA highlighted this was identical in wording to the bilateral knee symptoms recorded by Dr Guirgis in his previous report dated 20 May 2022. NRMA highlighted this was inconsistent with the Claimant's reporting to Dr Rimmer, less than two months later, of only intermittent pain in both knees with no clicking, swelling, locking or instability. For the reasons outlined in the above paragraphs of these submissions, NRMA submitted Dr Guirgis' report dated 22 April 2024 should be given little weight as it was not based on the claimant's current symptoms;

   ·        Dr Guirgis diagnosed Mr Mrkela with 'post traumatic symptoms in the right and left knee joints caused by contusion of the articular surfaces and spraining of the supporting capsular and ligamentous structures, which had triggered and aggravated the effects of underlying asymptomatic age-appropriate degenerative changes'. NRMA submitted this diagnosis cannot be accepted as Dr Guirgis fails to consider whether the claimant's degenerative conditions are the cause of his current knee symptoms, rather than the subject accident;

   ·        Dr Rimmer, in his report dated 6 June 2024, observed normal range of movement in both knees and diagnosed Mr Mrkela with resolved soft tissue injuries to the right and left knees. NRMA highlighted on page 6 of his report, Dr Rimmer refers to the MRI scan of the right and left knees dated 15 January 2022 which demonstrated moderate patellofemoral degenerative osteoarthritis. NRMA submitted Dr Rimmer's findings are based on his clinical findings, the medical evidence which includes the radiological imaging reports and Mr Mrkela’s current reported symptoms, as required under cl 5.6 of MAG, the latter two being features lacking in Dr Guirgis' report, and

   ·        NRMA submitted Dr Rimmer's report should be preferred over that of Dr Guirgis as Dr Rimmer's findings are based on Mr Mrkela’s presentation and reporting on the date of his examination on 4 June 2024 and Dr Rimmer has adequately considered the question of causation.

Video of the accident and photographs of the damaged vehicle

1. Pursuant to the Directions made by the Panel, Mr Mrkela’s solicitor produced media footage in order to assist the Panel to consider the magnitude and severity of the accident. The Panel acknowledged it did not have the relevant expertise to consider the mechanics of the accident but nevertheless as a matter of common sense could take into account the extent of damage done to the vehicles involved and use this to clarify the circumstances of the accident.

2. The images provided display damage to both the rear and both sides of the Nissan Patrol vehicle.

THE MEDICAL EXAMINATION BY THE PANEL

1. Mr Mrkela was examined by Medical Assessor Assem at the Commission’s rooms on

   
   

   7 May 2024.

2. Ms Dusica Jovanovic-Palic, official Serbian speaking interpreter #CPN2GH48J, was present for the entire duration of the assessment.

Pre-accident medical history and relevant personal details

1. Mr Mrkela was a 49-year-old right hand dominant man from Croatian city of Zadar. He worked in a glass factory, a job he held until 1999. The war in the Balkans prompted his move to Belgrade, and subsequently, he and his family sought refuge in Australia in 1999.

2. He qualified as carpenter and established his own building company in 2011/2012, TNT Building Services where he employed five to twelve individuals. After the subject motor vehicle accident, he was off work for approximately two months before returning on suitable duties at reduced hours. He was able to delegate tasks to other employees and subcontractors. The company ceased operating in around March 2022. He had remained off work since that time.

Past history

1. On 26 June 2014, he was involved in a motor vehicle accident while driving his Nissan Patrol tray top utility vehicle. He was stationary at a red traffic light on Woodville Road when his vehicle was abruptly struck from behind by a Toyota Camry.

2. He did not require immediate ambulance or police intervention and managed to drive himself to his general practitioner.

3. He reported injuries to his neck, including pain that radiated to his right arm, a back injury, and soft tissue injury to both shoulders.

4. He received physiotherapy treatment and was given an epidural injection into his lumbar spine.

5. Due to the severity of these injuries, he was unable to work for two years. He subsequently received a compensation settlement amounting to $500,000.

6. He was diagnosed with hypertension, hyperlipidaemia and an infected prostate. There were no other relevant medical or surgical conditions reported.

History of the motor accident

1. On 3 May 2021, Mr Mrkela was involved in a severe motor vehicle accident while driving his Nissan Patrol in a 110kmph along the M1 near Ourimbah. He had reduced his speed to approximately 20 kilometres per hour due to a prior accident when another vehicle, traveling at full highway speed, failed to decelerate and rear-ended him. The collision was extremely forceful, propelling his car forward by about 30m.

2. In the immediate aftermath, Mr Mrkela found himself unable to exit his vehicle as the driver’s door was jammed and the windows would not open. He was trapped inside the car, which started to emit smoke and eventually caught fire. The fire brigade arrived on the scene and used large pliers and a grinder to extricate him from the burning vehicle.

3. The Medical Assessor highlighted that the police report described the incident as causing minor injuries. However, Mr Mrkela mentioned that the freeway was closed, and a helicopter was dispatched to transport a driver and passenger, which he recalled was covered by Channel 7 news.

4. The Medical Assessor also noted that the ambulance report indicated that he was initially categorized as a Code 9 due to confinement but reported no injuries while inside the vehicle. Contrary to the paramedics' advice to remain stationary for assessment, Mr Mrkela left the vehicle and walked around the scene, although he said that he cannot recall these actions.

5. On 12 October 2021, an MRI of his right shoulder indicated mild acromioclavicular joint degeneration and labral detachment. Additional imaging of his hips and knees revealed mild degenerative changes, but ultrasounds of the hips showed no abnormalities. Physiotherapy treatment was commenced on 20 October 2021.

6. He was referred to Dr Medhat Guirgis, orthopaedic surgeon, who diagnosed rotator cuff syndrome in both shoulders, injuries to both hips manifesting as greater trochanter pain syndrome, and injuries to both knees indicated by symptoms of patellofemoral pain syndrome. Dr Guirgis recommended MRIs of his hips and knees, which upon review, revealed bilateral acetabular impingement, patellar tendinopathy, chondromalacia patella, and lateral meniscal tears in both knees. He was given cortisone injections into his shoulders that provided temporary relief.

7. He attempted to return to part-time work in August 2021 but had to cease completely by February 2022 due to his declining physical function, confirmed by a certification of no work capacity. He continued to receive physiotherapy treatment and hydrotherapy at his own expense. He took Mersyndol for pain when needed.

Current symptoms

1. Over the past two years, Mr Mrkela had reported some improvements in his condition, though the extent of these improvements has not been precisely detailed.

2. The Medical Assessor expressed concerns regarding the documentation of his personal injury benefits application, noting that the inclusion of his knee and hip issues was omitted. Mr Mrkela clarified that he was not responsible for determining the content of this application.

3. His main concern was constant neck pain that radiated to his right shoulder and arms, as well as lower back pain accompanied by a burning sensation that extends from his right buttock to the anterolateral aspect of his right knee.

4. He also experienced frequent numbness in his right arm, which he described as a sensation akin to a line of pain mixed with pins and needles, extending down to the palm of his right hand. He reported that previous symptoms in his knees and hips have been alleviated through the use of vitamins and minerals.

5. He continued to suffer from carpal tunnel syndrome, which affected his wrists. He lived with his wife and son. His physical limitations had led him to abstain from performing household chores.

Examination

1. Mr Mrkela presented in good health and did not display any obvious signs of physical distress during the evaluation. He remained comfortable while seated throughout the interview. His physical stature was noted as 190cm in height and 113kg in weight. He was advised at the outset not to participate in any movements beyond his comfort level that might cause harm or injury.

Cervical spine

1. On examination of his cervical spine, there was noted tenderness upon palpation of the spinous processes of the cervical vertebrae. The range of motion in his cervical spine was generally restricted to three-quarters of the normal range in flexion, extension, lateral flexion, and rotation, but there was no observed asymmetry or spinal dysmetria. Additionally, there were no signs of muscle guarding or spasm.

2. The neurological examination of his upper extremities indicated normal muscle power, tone, sensation, and reflexes. The circumference of his right forearm and upper arm was slightly greater than the left, which was consistent with his right-hand dominance. All neural tension signs were negative.

Lumbar spine

1. There was mild tenderness when palpated, although no muscle guarding or spasms were observed. The range of motion in the lumbar region was uniformly decreased to three-quarters of the typical range across flexion, extension, lateral flexion, and rotation movements. No asymmetries or spinal dysmetria were detected.

2. Mr Mrkela experienced no difficulties when climbing on or off the examination couch. The active straight leg raise test, performed while supine, showed a 60° range bilaterally. All neural tension tests yielded negative results. Reflexes in the knees, ankles, and hamstrings were symmetrically diminished. Muscle power, tone, and sensation remained normal, and there was no significant variance in the circumference of his calves.

Upper extremities

1. There was slight tenderness over the right AC joint. There were no joint crepitations and no instability. Provocative tests for impingement were negative. Active range of motion was slightly reduced to both shoulders. There were no symptoms reported in his left shoulder;

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	130°, 140° pain in axilla	160°
Extension	30°	40°
Adduction	10°, 30°	40°
Abduction	160° pain in right AC joint	160°
Internal Rotation	80°	80°
External Rotation	60°	60°

Lower extremity

1. He had a normal range of knee motion with occasional bilateral patellofemoral crepitations more prominent on the right. There was tenderness at the inferior pole of the right patella. There was no ligament laxity. Hip movements were slightly reduced as follows:

Hip Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	100°	100°
Extension	0°	0°
Adduction	20°	20°
Abduction	40°	40°
Internal Rotation	30°	30°
External Rotation	40°	40°

Consistency of presentation

1. There was a discrepancy in the information provided with regards to the severity of the motor vehicle accident. There were no inconsistencies in his physical presentation.

Diagnosis, causation, and reasons

1. Mr Mrkela had a history of injuries sustained in a previous motor vehicle accident in 2014. These injuries predominantly involved the cervical and lumbar spine, as well as the shoulders. MRI findings indicated degenerative changes typical for someone engaged in heavy manual labour, such as cervical spondylosis and lumbar disc degeneration. Imaging of his shoulders showed labral tears.

2. Following the accident in 2021, Mr Mrkela's claim of being extricated from the vehicle by cutting operations performed by the fire brigade does not align with the ambulance report, which does not mention such a procedure. Furthermore, the initial reports from the ambulance and hospital records shortly after the accident in 2021 do not mention immediate complaints involving the hips or knees. The first mention of these issues was noted during a subsequent assessment by Dr Tomka the following day, but his hip and knee complaints were not documented in his APIB. This delay in reporting could suggest that the symptoms might have been pre-existing and only aggravated by the accident, rather than directly caused by it. In any event, the alleged injuries to his hips and knees have now resolved.

3. The photographs that were subsequently provided of his damaged vehicle confirm a moderately severe impact causing the left side panel and bumper of the Nissan 4WD vehicle to be significantly dented and crumpled. The spare tyre at the back appears to be intact, but the window above the damaged area seems to be shattered or missing. The driver's side of the vehicle’s door was completely crushed and caved in with significant deformation of the metal consistent with the occupant being cut out of the vehicle.

Cervical spine

1. He sustained a whiplash injury following a motor vehicle accident in 2014. On

   
   

   12 March 2015, nerve conduction studies reported moderately severe bilateral carpal tunnel syndrome and mild cervical radiculopathy involving right C6/7. An MRI scan of the cervical spine on 2 February 2015 showed mild cervical spondylosis with abutment of the cord at C5/6 and foraminal narrowing most significant on the left side at C5/6 with potential C6 impingement.

2. On 5 February 2016, Dr Guirgis’ report noted dysmetria of the cervical spine with guarding and carpal tunnel syndrome of the right hand. On 19 February 2016, Dr Robinson noted dysmetria of the cervical spine and full range of movement of the left shoulder, near-normal range of movement of the right shoulder. He recorded some abnormal pain responses to touching his skull with one finger.

3. The above findings are consistent with pre-existing moderately advanced degenerative changes, which are common in a person of his age group and accelerated by trauma or heavy manual work.

4. After the motor vehicle accident in 2021, there were complaints of neck pain in the ambulance report and hospital records that would support an aggravation of pre-existing degenerative pathology. Examination of the cervical spine did not reveal any neurological deficit and no signs of radiculopathy. Based on the imaging report and examination findings, the Panel concluded that he had sustained soft tissue injury to the cervical spine, which was a threshold injury according to the Act.

Shoulders

1. There was a history of an injury to both shoulders following the motor vehicle accident in 2014. On 11 December 2014, an MRI of the right shoulder showed supero-distal subscapularis tendinosis with a tiny partial thickness tear, detachment of the antero-superior labrum, a recess at the base of the superior labrum considered an anatomical variation, and AC joint osteoarthritis with no evidence of recent injury. On 12 December 2014, an MRI of the left shoulder showed mild subscapularis tendinosis without a tear, a cleft at the base of the superior labrum consistent with a superior labral tear, and AC joint osteoarthritis. While Dr Robinson noted a full range of left shoulder motion in 2016, the right shoulder had a mild limitation.

2. After the motor vehicle accident in 2021, the ambulance and hospital records do not initially mention shoulder complaints. However, he later reported right shoulder pain. On

   
   

   4 May 2021, Dr Tomka documented pain in both shoulders associated with a limitation in motion.

3. The Panel was therefore satisfied that the accident caused an aggravation or exacerbation of pre-existing shoulder pathology. The imaging of the right shoulder before and after the 2021 accident shows a consistent finding of labral detachment and AC joint degeneration. There was no mention of significant progression in the subscapularis tendinosis or new traumatic pathology specific to the right shoulder. The injury to his right shoulder was therefore a threshold injury according to the Act.

4. With regard to the left shoulder, an MRI scan on 12 December 2014 revealed mild subscapularis tendinosis without a tear. A cleft at the base of the superior labrum was consistent with a superior labral tear. There was also AC joint osteoarthritis. After the 2021 accident, an MRI scan of the left shoulder on 12 October 2021 showed labral detachment.

5. The findings suggest that the labral tear noted before the 2021 accident had progressed to a detachment post-accident. This progression, coupled with the clinical context of the accident, suggests that the 2021 accident likely contributed to the worsening of the shoulder condition, indicating a traumatic impact. The force of the impact, which pushed his vehicle forward by about 30m and caused severe damage necessitating extrication, suggests a high level of trauma that most likely resulted in a labral tear and did materially contribute to the injury.

1. The consistency in the subscapularis tendinosis and the presence of AC joint degeneration also supports this conclusion. The labrum was a type of cartilage that stabilizes the shoulder joint. A detachment of the labrum involves a partial or complete rupture of this cartilage which falls under the category of a non-threshold injury according to the criteria outlined in the Act.

Lumbar spine

1. Mr Mrkela sustained significant lumbar spine injuries following the accident in 2014. An MRI scan of the lumbar spine on 28 December 2017 revealed disc desiccation at multiple levels, right paracentral disc extrusion at L2/3 affecting the thecal sac and right-sided exit foramen, and broad-based disc bulges at L4/5 and L5/S1 with disc/osteophytic encroachment on the left exit foramen at L5/S1, which are consistent with chronic degenerative changes. Several consultations between January 2016 and June 2017 highlighted persistent lumbar-sacral pain and the need for continuous pain management. Dr Guirgis and Dr Robinson both noted significant degenerative changes and chronic pain management strategies for the lumbar spine.

2. The above findings are consistent with pre-existing moderately advanced degenerative changes, which are common in a person of his age group and can be accelerated by trauma or heavy manual work.

3. After the 2021 accident, Mr Mrkela reported pain in the lower back. The ambulance report and hospital records document these complaints, indicating an aggravation of his pre-existing degenerative pathology.

4. Physical examinations by Dr Tomka and others noted restricted range of motion and pain in the lumbar spine area. Imaging reports post-2021 accident did not reveal new acute traumatic injuries but confirmed ongoing degenerative changes.

5. Examination of the lumbar spine did not reveal any neurological deficit and no signs of radiculopathy. Based on the imaging report and examination findings, the Panel concluded that he had sustained soft tissue injury to the lumbar spine, which was a threshold injury according to the Act.

Hips and knees

1. Immediately after the 2021 accident, Mr Mrkela did not report any hip or knee pain in the ambulance or initial hospital records. This delay in reporting symptoms could suggest that the acute pain from the accident masked the pain in the hips and knees initially or that these symptoms developed over time as the physical stress from the accident exacerbated the pre-existing degenerative conditions.

2. On 4 May 2021, he reported pain in his hips and knees during a consultation with Dr Kris Tomka. Physical examination revealed reduced range of motion and swelling in the knees. On 12 October 2021, X-rays of both hips and knees revealed mild degenerative changes. Ultrasounds of both hips showed normal results. On 26 October 2021, Dr Medhat Guirgis noted symptoms of greater trochanter pain syndrome in both hips and patellofemoral pain syndrome in both knees. He referred Mr Mrkela for an MRI scan of both knees on 15 January 2022, which showed patellar tendinopathy, chondromalacia patella, and lateral meniscal tears.

3. The lateral meniscal tear did not coincide with the symptoms reported in the patellofemoral compartment or mechanism of injury, direct trauma. Meniscal tears are commonly caused by forced twisting injuries and therefore unlikely to be related to the accident. The other pathological changes are predominately degenerative in nature. The injury to his knees was therefore a threshold injury according to the Act.

4. On 15 January 2022, an MRI of the right hip indicated a femoral acetabular impingement cam type with an anterior labral tear and a separate area of chondral labral separation involving the posterior one half of the superior labrum. There was also a pistol grip deformity of the femoral head-neck junction and a dysplastic bony bump at the anterolateral aspect of the proximal femoral physical scar. This suggests that the labral tear in Mr Mrkela's right hip was likely associated with the degenerative changes characteristic of FAI rather than being purely traumatic. The presence of a pistol grip deformity and dysplastic bony bump indicates long-standing structural abnormalities that predispose to labral tears, consistent with degenerative pathology.

5. Based on the imaging reports and examination findings, the Panel concluded that Mr Mrkela sustained an aggravation of his pre-existing degenerative conditions in the hips and knees due to the 2021 accident which are threshold injuries according to the Act.

Conclusion

1. Post- examination, the Panel came to the conclusion that while the 2021 accident likely exacerbated pre-existing conditions, the direct causation of new severe pathology specifically from this accident seemed limited to the left shoulder. The majority of the other symptoms could be attributed to a combination of Mr Mrkela’s extensive pre-accident orthopaedic history and his occupational exposures, rather than new traumatic injuries from the subject motor vehicle accident.

2. Taking into account the late documents, including the clarification of the circumstances of the accident with photographs and the video footage, the reports of Dr Guirgis and Dr Rimmer, the Panel concluded that the injury to the left shoulder was a non-threshold injury according to the criteria outlined in the Act.

Determination

1. The Panel revokes the certificate of Medical Assessor Shahzad and substitutes the determination to certify that the following injuries were a threshold injury:

   ·        cervical spine;

   ·        lumbar spine;

   ·        left hip;

   ·        right hip;

   ·        left knee;

   ·        right knee, and

   ·        right shoulder.

2. The Panel further certifies that the following injury was not a threshold injury:

   ·     left shoulder.