Kvackovski v Allianz Australia Insurance Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Kvackovski v Allianz Australia Insurance Limited [2025] NSWPICMP 740
CLAIMANT:	Dobre Kvackovski
INSURER:	Allianz Australia Insurance Limited
REVIEW PANEL
MEMBER:	Bianca Montgomery-Hribar
MEDICAL ASSESSOR:	Michael Couch
MEDICAL ASSESSOR:	Tai-Tak Wan
DATE OF DECISION:	25 September 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); treatment and care dispute; proposed surgery relates to left shoulder injury; pre-existing left shoulder injury; consideration of whether proposed surgery related to injury caused by the accident; Held – the accident did not make a material contribution to the need for the surgery; as the injury was not caused by the accident the proposed surgery is not reasonable and necessary in the circumstances; MAC confirmed.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 1. The Review Panel confirms the certificate of Medical Assessor Rapaport dated 17 December 2024. A statement setting out the Panel’s reasons for the assessment is included with this certificate.

STATEMENT OF REASONS

INTRODUCTION

On 28 August 2023, Dobre Kvackovski (claimant) was involved in a motor vehicle accident at the traffic lights on Campbell Street, Liverpool. He was stationary in the right lane before a red traffic light. There was a broken-down truck in the left lane, which was requiring cars to merge from the left lane into the right lane. Upon the traffic light turning green, Mr Kvackovski let a vehicle merge ahead of him. The vehicle that was behind the merging vehicle also attempted to merge in front of Mr Kvackovski’s vehicle and scraped the passenger side of his vehicle (accident).
Allianz Australia Insurance Limited (insurer) is the third-party insurer liable to pay Mr Kvackovski statutory benefits under the Motor Accident Injuries Act 2017 (NSW) (MAI Act).
Mr Kvackovski sought approval for a treatment and care request from the insurer to undergo a left arthroscopic rotator cuff repair and open subpectoral biceps tenodesis (the surgery). The insurer declined the treatment and care request on the basis that it said the surgery is not related to injuries sustained by Mr Kvackovski in the accident and is therefore not reasonable and necessary in the circumstances.
Mr Kvackovski sought review of this decision by the Personal Injury Commission (Commission). The issue in dispute is whether the surgery relates to an injury causally related to the accident and whether the surgery is reasonable and necessary in the circumstances.
The dispute was referred to Medical Assessor Adam Rapaport. By certificate dated 17 December 2024,[1] Medical Assessor Rapaport determined the surgery does not relate to the injury caused by the accident and is not reasonable and necessary in the circumstances.
[1] The Panel notes that the certificate of Medical Assessor Rapaport refers to the assessment having been conducted on 20 December 2024. The Panel assumes that these dates should be reversed, but for clarity, has adopted the date used in Medical Assessor Rapaport’s certificate.
On 24 January 2025, Mr Kvackovski lodged a review application in relation to the Certificate of Medical Assessor Rapaport under s 7.26 of the MAI Act.
On 3 March 2025, a delegate of the President determined there was reasonable cause to suspect that the medical assessment of Medical Assessor Rapaport was incorrect in a material respect and referred the application to a review panel.
This review panel (the Panel) has been constituted to conduct a review of Medical Assessor Adam Rapaport’s certificate dated 17 December 2024 (Review).

LEGISLATIVE FRAMEWORK

Treatment and care

The MAI Act governs Mr Kvackovski’s claim and entitlements to benefits and compensation. Statutory benefits are payable by the insurer in accordance with Part 3 of the MAI Act and include weekly loss of income benefits for “earners” and treatment and care benefits.
Section 3.24 of the MAI Act refers to an injured person’s entitlement to statutory benefits for treatment and care and provides as follows:
“(1) An injured person is entitled to statutory benefits for the following expenses (treatment and care expenses) incurred in connection with providing treatment and care for the injured person—
(a) the reasonable cost of treatment and care,
(b) reasonable and necessary travel and accommodation expenses incurred by the injured person in order to obtain treatment and care for which statutory benefits are payable,
(c) if the injured person is under the age of 18 years or otherwise requires assistance to travel for treatment and care, reasonable and necessary travel and accommodation expenses incurred by a parent or other carer of the injured person in order to accompany the injured person while treatment and care for which statutory benefits are payable is being provided.
(2) No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.
(3) The Motor Accident Guidelines may provide for—
(a) circumstances in which the cost of treatment and care is taken to be reasonable for the purposes of this section, and
(b) circumstances in which treatment and care is taken to be reasonable and necessary for the purposes of subsection (2).”
Note—
See Part 7 and Schedule 2 for provisions relating to disputes about whether treatment and care, or the cost or treatment and care, provided or to be provided to an injured person is reasonable and necessary.”
Version 10 of the Motor Accident Guidelines (Guidelines) does not make provision for the circumstances contemplated in s 3.24(3) of the MAI Act.
Section 3.24 provides that the issues of “reasonable and necessary in the circumstances” and whether any such treatment “did not relate to the injury resulting from the motor accident” are different concepts.
That conclusion is consistent with sub-cl 2(b) of Schedule 2 of the MAI Act which defines a medical assessment matter as “whether any treatment and care provided or to be provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24 (Entitlement to statutory benefits for treatment and care)”.
The provisions of the Civil Liability Act 2002 (NSW) (CL Act) apply in determining causation.[2] It is therefore necessary to consider whether the accident caused or contributed to the injuries. The accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.[3]
[2] Sections 5D and 5E CL Act.
[3] Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 at [50].

Dispute resolution

Part 7 of the MAI Act provides for the resolution of disputes that arise in respect of motor accident claims.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. Section 7.1 defines a medical assessment matter as “a matter declared by Schedule 2 to be a medical assessment matter for the purposes of this Part”.
Pursuant to Schedule 2, cl 2(b) of the MAI Act, whether any treatment and care provided or to be provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of s 3.24 (Entitlement to statutory benefits for treatment and care) is a medical assessment matter. Accordingly, the current dispute about Mr Kvackovski’s surgery is a medical assessment matter pursuant to Part 7 of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act, at first instance by a Medical Assessor,[4] and on review by a review panel.[5]
[4] Section 7.20, MAI Act.
[5] Section 7.26, MAI Act.
Section 7.26(5A) of the MAI Act provides that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
Part 5 of the Personal Injury Commission Act 2020 (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: s 41(2) PIC Act. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5. A review panel determines how it conducts and determines the proceedings.

Procedural history before the panel

On 5 March 2025, the Panel made directions for the filing of a bundle by each of the parties containing the documents and submissions they relied on for the purposes of the Review.
Mr Kvackovski did not comply with the 5 March 2025 directions. Accordingly, the insurer requested an extension of time to lodge its review bundle. This extension was not objected to by Mr Kvackovski and, accordingly, on 17 April 2025 the Panel made direction varying the 5 March 2025 directions to provide the insurer with an extension of time.
On 14 May 2025, the Panel met in relation to the Review. The Panel determined that a medical examination of Mr Kvackovski was required and made directions for Mr Kvackovski to attend an examination before Medical Assessor Couch at the Commission’s medical suites on 27 June 2025. The Panel also directed the production of additional documents that were not included in the bundles lodged by the parties.
On 16 June 2025, a subset of the additional documents requested by the Panel were provided. The Panel noted that this bundle did not contain the requested clinical notes. As the Panel did not wish to delay its determination if this could be avoided, Mr Kvackovski’s medical examination by Medical Assessor Couch proceeded as scheduled on 27 June 2025.
Following that examination, the Panel reiterated its request for the outstanding clinical records and noted that it may need to re-examine Mr Kvackovski following the production and consideration of those records.
A summary of the medical examination was prepared by Medical Assessor Couch and provided to Medical Assessor Wan and Member Montgomery-Hribar in advance of the second meeting of the Panel for their consideration and evaluation. Medical Assessor Couch’s summary appears below in the Panel’s reasons.
The Panel was scheduled to meet for a second time to discuss the medical examination and make its findings on 16 July 2025, but stood over this meeting until after the production of the outstanding clinical records.
On 22 July 2025, the outstanding clinical records were provided to the Panel.
On 25 August 2025, the Panel met for a second time to discuss the medical examination and additional clinical records, and to make its findings.

ASSESSMENT UNDER REVIEW

Medical Assessor Rapaport examined Mr Kvackovski on 20 December 2024.[6] Mr Kvackovski attended the examination in the company of his wife. Mr Kvackovski’s wife was asked to wait outside the medical suite after the early part of the interview, as it was reported she often took the lead in answering questions posted to Mr Kvackovski. A Macedonian interpreter was present throughout the entire interview and physical examination.
[6] See fn 1 above.
The Medical Assessor was asked to assess whether the left arthroscopic rotator cuff repair and open subpectoral biceps tenodesis:
(a) is reasonable and necessary in the circumstances, and
(b) relates to the injury caused by the accident.
The Medical Assessor noted Mr Kvackovski’s psychosocial and pre-accident history. Relevantly, it was noted that Mr Kvackovski was involved in a motor accident on 12 October 2013 in which he was injured but not hospitalised (the 2013 accident). He received a lump sump compensation payment. After the 2013 accident, he stopped work as a carpenter and did not work for an ensuing period of five years. He was supported by his wife who was a cleaner.
Mr Kvackovski subsequently obtained employment as a cleaner for two years. He stopped working in early 2021, claiming that chronic back pain and sciatica were the main impetus for his stopping work. Mr Kvackovski has suffered back pain with sciatica since the 2013 accident.
The Medical Assessor noted the history of the accident, including that Mr Kvackovski was not examined or assessed at the accident scene as he presented with no apparent injuries and was able to drive from the scene. Mr Kvackovski noted he did not experience pain until the evening following the accident. Currently, Mr Kvackovski’s main symptom regards sharp pains in his left shoulder that interferes with sleep.
The Medical Assessor examined Mr Kvackovski and undertook a review of the documentation before him. The Medical Assessor concluded that, as the left supraspinatus tendon tear and other demonstrable left shoulder pathology were pre-existing and unaffected by the accident, it follows that the left arthroscopic rotator cuff repair and open subpectoral biceps tenodesis does not relate to the injuries caused by the motor accident, and is neither reasonable nor is it necessary.

SUBMISSIONS

Claimant’s submissions

Mr Kvackovski’s submissions dated 23 January 2025 in respect of his application for review have been considered. Mr Kvackovski did not put on submissions addressed to the Panel.
Relevantly, for the purposes of the issue before the Panel, it is noted that Mr Kvackovski submits that his treating orthopaedic surgeon, Dr David Lieu, expressed that there was a progression of the tear following the accident, with worsening upper subscapularis tendinopathy and medial subluxation of his biceps tendon.
Mr Kvackovski submits that, despite the delay in him reporting symptoms, the accident could still have contributed to the exacerbation of his left shoulder injury. Applying AAI Limited v Phillips [2018] NSWSC 1710 at [29], Mr Kvackovski submits that the accident need only be a material contribution and there can be other non-related causes for the need for treatment.
Mr Kvackovski submits that the exacerbation of the left shoulder injury would not have occurred but for the accident. This is demonstrated in Mr Kvackovski’s consistent reports of an asymptomatic left shoulder around the time of the accident.

Insurer’s submissions

The insurer’s submissions dated 26 April 2025 have been considered. The insurer’s submissions dated 13 February 2025 in reply to Mr Kvackovski’s application for review have also been considered, which are incorporated as part 8 of the submissions dated 26 April 2025.
The insurer submits that the accident was a very minor, low-speed accident. The insurer disputes that any physical injuries could have been caused by the accident.
The insurer disputes that Mr Kvackovski sustained any new injury to his left shoulder in the accident and disputes that the accident caused any aggravation or progression of his left shoulder pathology. The insurer submits that the available medical evidence demonstrates that the surgery proposed by Dr Lieu arises from Mr Kvackovski’s work as a carpenter in the construction industry over many years and not from his involvement in the accident.
The insurer submits that it is significant that Mr Kvackovski did not make any immediate complaints with respect to his left shoulder following the accident. The insurer submits that the radiological evidence has not altered significantly since the accident and the changes, if any, are not inconsistent with the progression of Mr Kvackovski’s longstanding condition.
The insurer refers to extracts of the GIO claim file from Mr Kvackovski’s 2013 accident, where he alleged injuries to his neck, right shoulder, thoracic spine, lumbar spine, right leg, right knee and right hip, as well as depression. The Medicare Notice of Settlement reports this claim resolved for $800,000. The insurer refers to the ambulance and medical records of Mr Kvackovski shortly after the 2013 accident, as well as the medicolegal reports of Dr Drew Dixon dated 9 October 2014 and Dr Medhat Guirgis dated 20 November 2014.
The insurer also referred to the certificates of Medical Assessor Gregory McGroder dated 26 February 2015 where he assessed 15% whole person impairment based on Mr Kvackovski’s physical injuries, and that of Medical Assessor Andrew McClure dated 10 February 2015 where he assessed 1% whole person impairment based on Mr Kvackovski’s psychological injuries.
The insurer notes that Mr Kvackovski was a patient of Dr Surinder Mohan, general practitioner, prior to the accident and had attended upon Dr Mohan for problems including those involving the left shoulder. The insurer refers to the findings of an X-ray and ultrasound that was performed on Mr Kvackovski’s left shoulder on 12 September 2022, the injection carried out on 7 October 2022, and the referral to Dr David Lieu on 4 November 2022 for “management of painful left shoulder worse with movements”.
The insurer refers to the clinical notes of Dr Lieu and the report of a CT arthrogram and MR arthrogram of the left shoulder undertaken on 19 January 2023. The insurer refers to the opinion of Dr Lieu that a rotator cuff repair can be considered if Mr Kvackovski fails to improve. The insurer also refers to the various imaging and scans that Mr Kvackovski underwent in 2023.
The insurer submits that it is evident Mr Kvackovski had significant longstanding pathology affecting the left shoulder prior to the accident. The insurer submits that Mr Kvackovski’s history has been complicated by the fact Mr Kvackovski consulted different general practitioners prior to and after the 2023 accident.
The insurer refers to Mr Kvackovski’s description of the accident and his attendance upon Dr Mohan shortly after the accident. The insurer notes that the X-ray of Mr Kvackovski’s left shoulder and cervical spine on 23 October 2023 revealed AC joint arthropathy a small loose body superiorly and Type I acromion process. There was no acute fracture or dislocation. The AHRR 1 completed on 6 November 2023 by Jonathan Lagrange, physiotherapist, does not refer to left shoulder symptoms.
The insurer refers to the consultation with Dr Andrew Kako on 13 November 2023 and submits that it is evident from Dr Kako’s notes that he undertook a thorough clinical assessment of Mr Kvackovski. The insurer submits it is significant that Dr Kako did not record Mr Kvackovski having made any complaint of injury to his left shoulder or thoracic spine in the accident. The insurer submits it was not until 20 November 2023 that Mr Kvackovski made a complaint to Dr Kako of left shoulder pain.
The insurer refers to the MRI of the left shoulder performed on 23 January 2024 and submits that the findings of this MRI do not identify any new injury nor exacerbation of Mr Kvackovski’s existing condition as a result of the accident.
The insurer refers to the reports of Dr Lieu dated 6 March 2024 and 24 June 2024. The insurer submits that Dr Lieu considers Mr Kvackovski sustained an exacerbation of pre-existing pathology as a result of the 2023 accident.
The insurer refers to the report of Dr Drew Dixon dated 22 May 2024 and submits that it is evident that Dr Dixon was not provided with any details of Mr Kvackovski’s pre-accident medical history, nor does Dr Dixon recall having previously examined Mr Kvackovski in 2014. The insurer submits that Dr Dixon’s diagnosis, through no fault of his own, is not forensically reliable in the absence of a proper medical history.
The insurer submits that the certificate of Medical Assessor Rapaport should be confirmed.

EVIDENCE BEFORE THE PANEL

Application for personal injury benefits

In Mr Kvackovski’s application for personal injury benefits 5 October 2023, he has drawn a picture of a person and notes the words “neck, right shoulder, back”. There is no reference to his left shoulder in the diagram, nor in the description of the injuries.

Mr Kvackovski has not responded to the question asking whether he was suffering an illness or injury affecting the same or similar parts of his body at the time of the accident.

Statement of Mr Kvackovski

The statement of Mr Kvackovski dated 1 August 2024 has been considered.
Mr Kvackovski describes the 2013 accident, in which another vehicle collided into his vehicle, which was stationary at the time. He injured his leg, back, shoulders, neck and experienced depression. He did not undergo surgery and states that at the time of the subject accident, the symptoms arising from the 2013 accident had resolved.
Mr Kvackovski notes that he consulted Dr David Lieu on 8 March 2023 as his left shoulder was “a bit sore”. He was put on an exercise program. Mr Kvackovski reports that no surgery was suggested at the time and he was told the left shoulder could fix itself with exercises. Mr Kvackovski says at the time of the accident he had no symptoms.
Mr Kvackovski says he immediately felt pain in his neck, left shoulder and back following the accident.
Mr Kvackovski says he has undergone physiotherapy and ultrasound guided injections with no significant improvement. He reports that Dr Lieu has stated that the surgery will significantly improve his pain.
Mr Kvackovski reports that he is in so much pain that he barely sleeps at night. He relies heavily on his wife to assist with all daily living activities and no longer has independence. Mr Kvackovski lists the disabilities that he says he suffers from as a result of the accident. He also outlines the impact his injuries have had on his life, including being in constant pain and having terrible sleep as a result.
Mr Kvackovski notes that his pain is so bad that he has put his name on the waitlist for the surgery, even though he cannot afford it and the insurer has declined it.

Pre-accident medical records and imaging records

Dr Surinder Mohan

The clinical records of Dr Surinder Mohan, general practitioner, under cover letter dated 18 July 2025 have been considered.
These records include numerous attendances pre-accident dating from August 2010. Several are illegible due to the quality of the scan and the handwritten nature of the records and the Panel has used its best endeavours to interpret these records.
It is noted that a number of the records simply include a date stamp with no written notes. It is therefore not possible for the Panel to determine the reason for Mr Kvackovski’s attendance on Dr Mohan on those occasions.
On 5 October 2012, it is recorded “MVA today”.
In around June 2018, it is recorded that there is a disc lesion which is the cause of his pain.
On 3 September 2018, Mr Kvackovski attended with left arm pain.
On 30 September 2019, Mr Kvackovski attended due to left shoulder pain, and on 18 October 2019 it is noted “sub deltoid bursitis”.
In May 2021, it is recorded that Mr Kvackovski attended for pain in his neck and hip joint.
On 4 November 2022, it is recorded “painful L shoulder”.
The Panel did not identify any other entries of note.

Dr Medhat Guirgis

The consultation report of Dr Medhat Guirgis, orthopaedic surgeon, has been considered. This report regards the 2013 accident. It is noted “the shoulder was giving him too much grief”. Dr Guirgis’ diagnosis is:
“Post-traumatic mechanical derangement of the cervical area of the spine, thoracic area of the spine and lumbar area of the spine; post-traumatic occipital headache attacks felt in association with tension of the muscles of the neck; and post-traumatic symptoms in the right shoulder joint caused by contusion of the articular surfaces and spraining of the supporting capsular and ligamentous structures, a small juxta-insertional tear in the foot print of the supraspinatus tendon.”

Dr David Lieu

The clinical records of Dr David Lieu, orthopaedic surgeon, have been considered.
The letter dated 16 December 2022 to Dr Surinder Mohan has been considered. This letter regarded a referral due to Mr Kvackovski’s left shoulder pain. It noted a two-year history of worsening pain in the shoulder, and that Mr Kvackovski has a constant pain deep within his shoulder. There is some radiation to his neck. It is always present, including at night. He struggles with all activities of daily living and leads a sedentary lifestyle. It is noted that cortisone injections and physiotherapy has not helped.
It is noted there is wasting of his shoulder girdle, significant tenderness around his bicep region and his biceps and supraspinatus were very irritable. It is noted “X-rays show some subacromial changes, and an ultrasound reports only a low-grade partial rim tear of supraspinatus. His symptoms are significantly worse than his ultrasound would suggest, and he has been referred for an MRI arthrogram.”
The letter dated 8 March 2023 to Dr Mohan has been considered. This notes that his MRI scan shows significant tendinopathy of his supraspinatus, with a rim tear and full thickness perforation. There is also involvement of his subscapularis. It was noted that Mr Kvackovski may have some improvement with a rotator cuff retraining program and surgical rotator cuff repair can be considered if he fails to improve. If there is no improvement in two months, then surgery can be discussed and planned.

Radiological imaging reports

The MRI of the cervical spine and MRI of the thoracic spine dated 10 December 2013 has been considered.
The X-ray and ultrasound report of the left shoulder dated 12 September 2022 has been considered. The ultrasound of the left shoulder reports a rim tear of the supraspinatus, subacromial-subdeltoid bursal inflammation, and evidence of AC joint arthropathy. The X-ray of the left shoulder reports degenerative AC joint arthropathy, no glenohumeral arthropathy, no reduction in the subacromial interval and no cuff calcification. Type II acromion process.
The report of the left shoulder ultrasound guided injection dated 7 October 2022 has been considered.
The CT arthrogram and MR arthrogram report dated 20 January 2023 addressed to Dr Lieu was considered. The Panel notes that in places this document refers to the “left shoulder” and in others the “right shoulder”. Based on the letter from Dr David Lieu dated 16 December 2022, the Panel assumes that the references to “right shoulder” should be read as “left shoulder”. Relevantly, the report noted:
(a) in respect of the CT arthrogram that “there is degenerative AC joint arthropathy with a small loose body superiorly measuring 5mm. There is no os acromiale. Type I acromion process. No contrast in the subacromial-subdeltoid bursa. Minor glenohumeral osteophytic lipping in keeping with early osteoarthritis. No Hills-Sachs fracture nor Bankart lesion”, and
(b) in respect of the MR arthrogram that “hypertrophic degenerative AC Joint arthropathy with synovitis and articular surface oedema. There is a defect in the AC joint capsule with contrast entering the AC joint in keeping with a developing Geyser sign. There is certainly contrast in the subacromial-subdeltoid bursa. Type 1 acromion process. Subacromial-subdeltoid bursal inflammation. There is no os acromiale. The long head of biceps tendon is normally located and intact. There is a tear of the rotator cable and biceps pulley”.
The Regional Bone Scan with SPECT/CT report dated 8 May 2023 has been considered. This records “apart from severe focal spondylosis at the right side of T12/L1, no further bone or joint abnormality demonstrated”.
The report of the CT scan of the abdomen and pelvis and the CT scan of the lumbar spine dated 11 May 2023 has been considered.

Pre-accident medico-legal reports

Dr Drew Dixon

The medico-legal report of Dr Drew Dixon, orthopaedic surgeon, dated 9 October 2014 has been considered. This notes Mr Kvackovski’s 2013 accident. Dr Dixon noted that Mr Kvackovski was working as a formwork carpenter at the time of the accident. He had not been able to return to his work following the accident. Dr Dixon notes Mr Kvackovski had a bilateral shoulder overuse condition in the 1990s, for which he underwent arthroscopic review.
Mr Kvackovski’s present symptoms were reported to be pain and stiffness in his neck with right shoulder brachialgia and radicular complaint, with pain at times extending down his upper arm. Pain in his lower back was also recorded. It was noted that his back pain disturbs his sleep, and he had difficulties with prolonged sitting and standing, heavy lifting, doing heavy household chores, doing gardens and lawns, difficulty with putting on shoes and socks, and walking on uneven terrain.
Dr Dixon diagnosed the following, which he opined to be causally related to the 2013 accident:
(a)    “whiplash injury to the neck with post traumatic stiffness with dysmetria, residual facet arthralgia and interspinous ligament laxity with radicular complaint with right-sided occipital frontal headaches and right shoulder brachalgia with trapezial muscle pain;
(b)    thoracic back strain injury with post-traumatic stiffness with dysmetria with aggravation of pre-existing thoracic spondylosis (DISH syndrome) which is ongoing;
(c)    low back strain injury with post traumatic lumbar stiffness with dysmetria, facet arthralgia and radicular complaint and aggravation of pre-existing lumbar spondylosis which is ongoing with residual right sided lumbosacral facet arthralgia more marked on the right with radicular complaint with right buttock, thigh and leg sciatica with intermittent paraesthesia and limitation of straight leg raise;
(d)    post-traumatic stiffness of his right shoulder with trapezial muscle pain;
(e)    impaction of his injuries on his activities of daily living;
(f)    reliance on analgesia;
(g)    post-traumatic anxiety and depressive disorder requiring Valium and psychological counselling, and
(h)    impaction of his injuries on his activities of daily living.”
Dr Dixon opined 19% whole person impairment and that Mr Kvackovski had reached maximum medical improvement.
The Panel notes there is no specific reference to pain or injury regarding his left shoulder.

Other pre-accident documents

GIO 2013 accident file

The Medicare Notice of Judgment or Settlement dated 29 April 2015 has been considered. Under “Brief description of the injury or injuries” it is noted “Neck, right upper extremity, thoracic spine, lumbar spine, right lower extremity, right hip, depression & psychiatric.”
The ambulance report dated 12 October 2013 has been considered.
The report of the X-ray of the cervical spine, X-ray of the thoracic spine and X-ray of the lumbar spine dated 8 November 2013 has been considered.
The report of the multi-positional MRI of the lumbo-sacral spine dated 11 December 2013 has been considered.
The letter of Dr Nikola Tomic, clinical psychologist, dated 24 February 2014 has been considered.
The Liverpool Health Service discharge referral dated 14 October 2013 has been considered.
The Certificate issued by Medical Assessor Gregory McGroder dated 26 February 2015 has been considered. Medical Assessor McGroder opined that Mr Kvackovski’s cervical spine – aggravation of underlying spondylosis changes; thoracic spine – aggravation of underlying spondylosis changes; lumbar spine – aggravation of underlying spondylosis changes, and right upper extremity (right shoulder) – soft tissue injury were caused by the 2013 accident. The Medical Assessor noted that there is no evidence of an injury to the left shoulder and Mr Kvackovski does not claim that the left shoulder was injured. He certified that the left upper extremity – musculoligamentous strain was not caused by the 2013 accident.

Post-accident medical and imaging records

Certificate of capacity / certificate of fitness

Mr Kvackovski’s certificate of capacity / certificate of fitness dated 4 October 2023 has been considered. This lists a diagnosis of “injury neck, upper and lower back, left shoulder” and under pre-existing factors states “osteo-arthritis – spine, aggravated pain ever since accident”.
Mr Kvackovski’s certificates of capacity / certificates of fitness dated 20 November 2023, 18 December 2023, 16 January 2024 and13 February 2024 have been considered. These list a diagnosis of “1. WAD; 2. Lower back injury; 3. Insomnia; 4. Intrusive thoughts and flashbacks. 5. Left shoulder pain”. The question regarding pre-existing conditions has been left blank. The certificates note Mr Kvackovski has no capacity for any work.

Dr Surinder Mohan

The records of Dr Surinder Mohan, general practitioner, printed 2 December 2024 and 18 July 2025 have been considered.
On 25 August 2023 it is recorded “MVA today. Driver of another car scratched his car badly. Pain in back, Lt shoulder and worse than before”.
On 13 September 2023 it is recorded “pain worse in joint ever since accident”.
In October 2023, it is recorded that Mr Kvackovski was involved in a motor vehicle accident. It is recorded “Injury neck, upper back and lt shoulder. Aggravation of pre-existing [illegible].”
On 3 November 2023, it is recorded “very painful lt side neck”.
On 23 October 2023, it is recorded “pain worse since accident esp neck left side”.
There is a subsequent visit on an unclear date in October 2023. The notes of this visit are illegible.
There are visits noted on 6 November 2023, 2 April 2024 and 5 April 2024 which record “No change. Nurofen”.

Genesis Health Centre

The clinical records of Genesis Health Centre printed on 6 March 2024 have been considered.
On 13 November 2023, Mr Kvackovski attended upon Dr Andrew Kako. It is noted “MVA – hit from the left – left passenger. Dx: Acute Stress Disorder, WAD, Lower back pain”. There is no reference to shoulder pain.
On 20 November 2023, Mr Kvackovski attended upon Dr Kako. “Left shoulder pain” is included in the list of issues. It is also noted “le[f]t [sic] shoulder pain particularly painful”.
On 24 November 2023, 27 November 2023, 4 December 2023, 18 December 2023, 19 December 2023, 8 January 2024, 9 January 2024, 16 January 2024, 24 January 2024, 30 January 2024, 13 February 2024 and 27 February 2024, Mr Kvackovski attended upon Dr Kako and reported left shoulder pain, as well as persistent neck and back pain. He was prescribed Panadeine Forte, which was reported to be “slightly helpful”. He saw a physiotherapist and recorded “minimal improvement”. An MRI of the left shoulder was discussed.
The report of Tho Tran, physiotherapist at FX Conditioning, dated 21 November 2023 addressed to Dr Kako was considered.

Dr David Lieu

The clinical records of Dr David Lieu, orthopaedic surgeon, have been considered.
The letter dated 6 March 2024 to Dr Kako has been considered. This refers to the referral regarding Mr Kvackovski’s left shoulder tendon tear. It records that Dr Lieu saw Mr Kvackovski a year prior for a similar problem. It is noted that “his symptoms were stable to the point where he did not want to consider any surgery”.
Dr Lieu opines that Mr Kvackovski has worsened significantly after the 2023 accident and reports significantly worse pain in his shoulder since. Dr Lieu opines that there has been some progression of his tendon tear, especially his upper subscapularis, since his previous MRI scan, and he would still expect a reasonable chance of at least some symptom improvement with ongoing nonoperative measures. It was opined that surgery can be considered if he fails to improve.

AusRehab

The Activities of Daily Living Assessment Report dated 6 February 2024 has been considered. It records that Mr Kvackovski reported left shoulder pain of 10/10, with 0 being no pain and 10 being extreme pain, and pain of 10/10 in the lower back. The balance of the report, including the recommendations, have been considered.
The Activities of Daily Living Assessment Report dated 14 March 2024 has been considered. It is noted that Mr Kvackovski reported he was fit and healthy prior to the accident and has never experienced significant injuries in the past. The assessment of Mr Kvackovski’s activities of daily living and the recommendations of AusRehab have been considered.

FX Conditioning

The clinical records of FX Conditioning printed 29 August 2024 have been considered.
These include records of over 40 sessions held with Mr Kvackovski between the period November 2023 and August 2024, focusing on physiotherapy treatment for Mr Kvackovski regarding his left shoulder, lower back and neck pain.

Radiology reports

The report of the X-ray of the left shoulder and X-ray of the cervical spine dated 23 October 2023 has been considered. In respect of the X-ray of the left shoulder, this notes “Degenerative AC joint arthropathy with a small loose body superiorly. There is a Type I acromion process. No reduction in the subacromial interval. No cuff calcification. No acute fracture nor dislocation”.
The report of the MRI of the whole spine and X-ray of the abdomen dated 5 December 2023 has been considered.
The MRI left shoulder report dated 23 January 2024 has been considered. This records “AC joint injury. Rotator cuff tendinosis of the subscapularis and supraspinatus. Supraspinatus tear. Supraspinatus muscle strain. Other findings as above.”
The ultrasound guided left shoulder injection report dated 19 March 2024 has been considered.

Medico-legal reports

Dr Drew Dixon

The medico-legal report of Dr Drew Dixon, orthopaedic surgeon, dated 22 May 2024 has been considered. Dr Dixon notes an injury to Mr Kvackovski’s right shoulder in the 2013 accident. Dr Dixon states this injury had settled and was asymptomatic at the time of the 2023 accident.
Dr Dixon diagnosed the following, which he considered to be causally related to the 2023 accident:
(a)    “neck strain injury with aggravation of cervical spondylosis which is ongoing with post-traumatic stiffness with dysmetria, radicular complaint with radiation to the thumb and index finger intermittently and occipital headaches with left shoulder brachialgia with trapezial muscle spasm;
(b)    post-traumatic stiffness of his left shoulder with winging of the left scapula with weakness of the left shoulder girdle with rotator cuff tear, with impingement on abduction;
(c)    back strain injury with T12/L1 disc protrusion and aggravation of spondylosis which is ongoing;
(d)    impaction of his injuries on his ADL’s;
(e)    reliance on Panadeine Forte, and
(f)    post-traumatic stress disorder with flashbacks, nightmares and insomnia and apprehension when out in traffic while driving”.
Dr Dixon opined that Mr Kvackovski falls within the definition of non-threshold injury, in that he has a rotator cuff tear in his shoulder and has a T11/ L1 disc protrusion. Dr Dixon referred to the opinion of Dr Lieu that there had been progression of his tendon tear, especially in the upper scapularis since his previous MRI, and that Dr Lieu opined that surgery was indicated.
Dr Dixon further noted the claim has undergone conservative treatment and has had ultrasound guided cortisone injections without significant improvement. Dr Dixon opined that the surgery recommended is reasonable and necessary.
Dr Dixon opined that Mr Kvackovski has a rotator cuff supraspinatus tear, ongoing supraspinatus and subscapularis tendinosis, subacromial bursitis clinically, with impingement on abduction, tenderness of the biceps groove and trapezial muscle pain extending over the scapula, and deltoid pain as far as the insertion with winging of the left scapula and drooping of the left shoulder.
Dr Dixon opined 20% whole person impairment, with no symptomatic pre-existing conditions. Dr Dixon noted the 2013 accident was associated with neck, right shoulder and back strain injuries which had settled and were asymptomatic at the time of the 2023 accident.

Dr David Lieu

The letter of Dr David Lieu, orthopaedic surgeon, dated 24 June 2024 has been considered.
Dr Lieu opined that the injuries sustained in the 2023 accident are an exacerbation of pre-existing pathology. Prior to the 2023 accident, an MRI on 19 January 2023 showed tendinopathy of supraspinatus and subscapularis. A subsequent MRI post-accident on 23 January 2024 showed progression of Mr Kvackovski’s tendon tear, with worsening upper subscapularis tendinopathy and medical subluxation of his biceps tendon.

Dr Lieu opines that the surgery is reasonable and necessary. Mr Kvackovski has developed worsening pain and stiffness with radiographic evidence of worsening pathology. He has not improved following a cortisone injection and physiotherapy. The proposed surgery is said to be an appropriate and recognised treatment option for his condition and has an 80% change of significant pain relief. Dr Lieu considers the surgery to be cost-effective, with the whole episode of care completed within six to twelve months post-surgery.
Dr Lieu noted that he had read Dr Dixon’s report and agreed with his findings.

Dr Abhishek Nagesh

The report of Dr Abhishek Nagesh, psychiatrist, dated 20 August 2024 has been considered. Dr Nagesh examined Mr Kvackovski via video conference on 20 August 2024.
Dr Nagesh diagnosed major depressive disorder of moderate degree with anxious stress, and specific phobia of driving. Dr Nagesh opined that Mr Kvackovski’s previously diagnosed major depressive disorder was in remission at the time of the 2023 accident.
Dr Nagesh opined 17% whole person impairment in respect of Mr Kvackovski’s psychological injuries, with no deduction for pre-existing impairments and no effects of treatment.

Other post-accident documents

Allied Health Recovery Requests

The allied health recovery request dated 6 November 2023 has been considered. Under diagnosis it is noted “Pt had MVA 28/8/23. Was driver and was hit on passenger side. Has had quite severe left sided C/sp and L/sp pain since. WAD grade 2”.
The allied health recovery request dated 22 February 2024 has been considered regarding Mr Kvackovski’s psychological injuries.

Auto and General Insurance Letter

The letter from Auto and General Insurance dated 27 October 2023 and the attachments, including the report from Andrews Collision Auto Repairs and the photographs of Mr Kvackovski’s vehicle post-accident, have been considered.

MEDICAL EXAMINATION

On 27 June 2025, Mr Kvackovski was examined by Medical Assessor Couch at the Commission’s medical suites.

Introduction and who attended the assessment

Mr Kvackovski attended promptly, accompanied by his wife, Galab Kvackovski, and a Macedonian interpreter, Ms Todonk Kersun, NAATI No: CPN30771R.
The Medical Assessor commenced by asking how Mr Kvackovski preferred to use the interpreter. He said that he understood some English, but not everything, and preferred to use the interpreter throughout. In the event, most communication was through the interpreter, but he appeared to understand some questions and at times spontaneously responded in broken English.
The Medical Assessor clarified that Mr Kvackovski understood the purpose of the Review Panel Examination. Mr Kvackovski commented that he had not yet had surgery for his left shoulder but did want to proceed. He said that Dr Lieu, the shoulder surgeon whom he had consulted both prior to and after the subject accident, had since put him on the waiting list for surgery at Fairfield Hospital. When asked if he had been given information about the waiting list, his wife added that they had been told he might have surgery in July or August of this year. Mr Kvackovski also added that he planned to proceed with surgery, whether or not the insurer eventually approved it.
The Medical Assessor then went through the history detailed in the original certificate of Medical Assessor Adam Rapaport dated 20 December 2024, elaborating on it and clarifying where necessary.

Pre-accident medical history and relevant personal details

Mr Kvackovski confirmed the history of growing up in Macedonia (then part of the old Yugoslavia). He left school at 14 and trained as an auto mechanic. He then did compulsory military service (he recalled finishing this only two weeks prior to the death of President Tito). He came to Australia at the age of 21. He met his wife here and married (she had come from Macedonia with her family at the age of 3 and grown up here). They both returned to Macedonia for about three years and subsequently came back and settled permanently in Australia.
His first job was for a company replacing old cast iron gas pipes with newer plastic ones (under roads, etc). Subsequently he always worked in construction, mainly as a formwork carpenter on high rise buildings. He said that he had done a lot of work on high rise buildings in the Sydney CBD, and over the years had worked for many different companies. When asked about any accidents doing this work (which he agreed was intrinsically heavy work), he mentioned minor eye and hand injuries but denied any shoulder injuries.
As recorded by Medical Assessor Rapaport, he was unable to return to work in construction after a quite serious motor vehicle accident in 2013. He described this accident with the assistance of a diagram. He was driving a Hilux utility with his wife in the passenger seat. As they waited to turn left onto a main road at a T-junction, a vehicle travelling from their left on the main road tried to turn right into the side road, but collided with a third vehicle travelling in the opposite direction on the main road. The offending vehicle apparently then crashed into the driver’s door of his utility. He said that he had been knocked out and was taken by ambulance to Liverpool Hospital and kept overnight (his wife was also injured). When asked about injuries, he replied “legs, my shoulder, lower back”. He said that he had injured his left shoulder in this accident, but that it settled down.
Mr Kvackovski was unable to return to work as a formwork carpenter and was off work completely for four or five years, eventually receiving a compensation settlement. His wife was supporting the family working as a school cleaner, and he eventually obtained a school cleaning job with the same company (ISS) but at a different school. He recalled subsequently working at various different schools in Sydney. He worked full-time Monday to Friday, doing eight hours per day on morning and evening split shifts. He thought he had done this work for about two years, probably ceasing in 2022. The Panel notes that Medical Assessor Rapaport had obtained the history, on page 4 of his certificate, that Mr Kvackovski had suffered back pain with sciatica since the 2013 accident and that “he claims that his chronic back pain and sciatica were the main impetus for his stopping work”.
He was asked further about this and said that back pain did contribute, but the main reason was because of family responsibilities, especially helping with grandchildren. On questioning he denied any contribution from his left shoulder to his decision to stop work as a cleaner. On further questioning, he denied being troubled by left shoulder pain while working as a cleaner. He was asked more about his cleaning duties. He said that these were mostly outdoors, including cleaning up leaves and garbage and emptying small bins. The only outdoor power equipment he apparently used was a battery-operated leaf blower. He did not use lawnmowers or brushcutters. He did not do any actual gardening.
Mr Kvackovski was asked about his consultation with Dr David Lieu about his left shoulder, prior to the accident. Prior to this, an X-ray and ultrasound of the left shoulder dated 12 September 2022, ordered by his longstanding general practitioner Dr Mohan, stated:
“Clinical Indication: Pain left shoulder worse with movement.
Ultrasound of left shoulder…
Conclusion:
1. Rim tear of the supraspinatus.
2. Two subacromial-subdeltoid bursa inflammation.
3. Evidence of AC joint arthropathy.
X-ray left shoulder findings: There is a degenerative AC joint arthropathy. There is no humeral arthropathy. There is no reduction in the subacromial interval and no cuff calcification. Type 2 acromion process.”
The Panel notes the letter from Dr Lieu to Dr Mohan dated 16 December 2022 which refers to a two year history of worsening left shoulder pain, consistent pain deep within his shoulder, and that the pain is always present, including at night. The Panel notes that this letter reports Mr Kvackovski struggles with all activities of daily living, leads a sedentary lifestyle, and that cortisone injections and physiotherapy have not helped.
The Panel also notes that Dr Lieu opined that Mr Kvackovski’s symptoms were significantly worse than the ultrasound would suggest, and referred him for an MRI athrogram.
The subsequent letter dated 8 March 2023 from Dr Lieu to Dr Mohan notes:
“I reviewed Mr Kvackovski today. His MRI scan shows significant tendinopathy of his supraspinatus with a rim tear and full-thickness perforation. There is also involvement of his subscapularis. He continues to be very troubled by his symptoms. I counselled him that he may have some improvement symptomatically with a rotator cuff retraining program. If however he fails to improve, then rotator cuff repair can be considered. This does however come with a 6-12 month recovery. There are also risks of surgery. He has been referred for physiotherapy. I will review him again in two months’ time with a medical interpreter present. If there is no further improvement, then surgery can be discussed and planned as needed.”
The Medical Assessor asked the interpreter to read the latter sections of this letter to Mr Kvackovski and invite his response. He replied that, although an ultrasound-guided steroid and local anaesthetic injection to the shoulder ordered by Dr Mohan and performed on 7 October 2022 was not successful, the shoulder had improved with physiotherapy.
The Medical Assessor was somewhat surprised to hear that Mr Kvackovski said that he had only attended physiotherapy for the shoulder prior to the subject accident on a few occasions. He was given exercises and recalls using Theraband for resisted work. He continuing to do so after he had ceased seeing the physiotherapist in person.
Mr Kvackovski was asked more about his shoulder pain in 2022 and early 2023. He denied any specific incident or injuring it during his work as a school cleaner. He reiterated that he was not planning to have surgery prior to the accident. He was then asked how he would have described his left shoulder one month prior to the subject accident. He replied “only 20% pain”. On questioning, he said that he was sleeping satisfactorily prior to the accident.
The Medical Assessor also asked Mr Kvackovski to demonstrate with his uninjured right upper limb the range of active movement (AROM) which he could achieve with the left shoulder prior to the subject accident. He was asked to remove a heavy, warm, fleece-lined jacket. He stood and his wife removed this for him. On request, he was able to elevate the right upper limb to 160 degrees of flexion and said that he could do the same with the left arm prior to the accident. He added that “I could do everything at home”.
Mr Kvackovski and his wife live in a single-storey home in the outer suburb of Narellan. He described an approximately 1,000 m² yard and said that he was able to do things such as mowing before the accident. He was asked if he needed to do any overhead pruning and he said that he did not.

History of the Motor Accident

As stated on page 4 of Medical Assessor Rapaport’s certificate, Mr Kvackovski confirmed that on 28 August 2023, he was driving a 2015 dual cab Ford Ranger utility. His wife was the front seat passenger. He said that his vehicle was stationary, waiting at traffic lights on Campbell Street in Liverpool. He clarified that there was a truck parked in the left hand lane, just before the lights, obstructing traffic. He was in a right hand lane with a car stationary in front of him. When the lights changed he let one vehicle to his left cut through to the right in front of him and then began to move forward. A second vehicle then tried to push through the gap as he moved forward. He described this as some sort of commercial utility/vehicle, possibly carrying farm produce. He explained that this vehicle first struck the rear passenger side of his Ford Ranger, scraping right along it until it stopped level with him – apparently unable to go further because of the parked truck.
Mr Kvackovski said that the impact was quite violent and that his utility was dragged forward two or three metres. He recalled braking hard and struggling to control the steering wheel as he was worried that their vehicle would be pushed into the path of oncoming traffic. Mr Kvackovski’s wife got out and tried to get details from the offending driver. The driver apparently refused and wanted Mr Kvackovski to get out of his vehicle “so that he could punch him”. Police were subsequently called.
Mrs Kvackovski had undergone very major abdominal surgery a few weeks earlier. Because of her recent surgery, the ambulance officers assessed Mrs Kvackovski. Medical Assessor Rapaport obtained the history that “…but with no apparent injuries presenting at that moment, Mr Kvackovski was not examined or assessed”. Mr Kvackovski told the Medical Assessor on this occasion that he had told ambulance officers that his left shoulder was sore.

History of symptoms and treatment following the accident

No ambulance officers records regarding Mr Kvackovski have been seen. Records have been seen from Dr Mohan, who Mr Kvackovski said was his long term general practitioner. Relevantly, there is an entry “….10.23 Involved in MVA, another car collided on his passenger side. Injury neck, upper back and lt shoulder, aggravation of pre-existing moderate OA”
Below this on 3 October 2023: “ very painful left side neck, lt side neck tender.”
Mr Kvackovski stated that he had taken his wife to Dr Mohan to be checked and had also attended Dr Mohan on the day after the accident and complained of shoulder pain.
A Certificate of Capacity/Certificate of Fitness from Dr Mohan dated 4 October 2023 states that Mr Kvackovski first attended for injuries on 28 August 2023. The doctor diagnosed: “Injury neck, upper and lower back, left shoulder…involved in an MVA, driver, another car collided on passenger side”.
When describing relevant pre-existing factors, the doctor wrote “osteoarthritis…(illegible). Aggravated pain ever since accident”.
A subsequent allied health recovery request from Jonathan Lagrange, physiotherapist, dated 6 November 2023, stated “Diagnosis: Pt had MVA 28/8/23. Was driver, was hit on passenger side. Has had quite severe Lt/Spl pain since. WAD Grade 2.”
On examination he described restricted movement of cervical and lumbar spine.
From the records supplied to the Panel, it appears that subsequently Mr Kvackovski mainly consulted Dr Andrew Kako at Genesis Health Centre in relation to his injuries. The first entry was dated 13 November 2023, mentioned the accident on 28 August 2023 and diagnosed WAD (whiplash associated disorder), lower back pain and acute stress disorder with insomnia and intrusive thoughts and flashbacks. At the next attendance with Dr Kako, one week later on 20 November 2023, left shoulder pain was also mentioned. Treatment recommended included physiotherapy, psychologist and imaging.
The MRI of the left shoulder dated 23 January 2024 reported:
“Clinical history: Severe left shoulder pain and reduced range of motion post-MVA on 28/08/2023.
Findings: The glenohumeral relationships are preserved. The long head of biceps tendon is intact. There is some thickening and heterogeneity of the tendon suggestive of mild tendinosis. The biceps labral complex is intact. There is no discrete labral tear. The subscapularis tendon is heterogeneous, consistent with tendinosis. The supraspinatus tendon also demonstrates heterogeneity consistent with tendinosis. There is a partial-thickness articular surface tear identified as well. There is also irregularity at the musculotendinous junction and oedema in the lateral supraspinatus muscle identified.
The infraspinatus and teres minor components of the rotator cuff define normally. There is AC joint widening and fluid in the AC joint identified. AC joint injury must be considered. There is also oedema in the lateral end of the clavicle. Structures of the suprascapular notch define normally.
IMPRESSION: AC joint injury. Rotator cuff tendinosis of the subscapularis and supraspinatus. Supraspinatus tear. Supraspinatus muscle strain. Other findings as above.”
The Medical Assessors on the Panel note that this MRI was undertaken five months after the accident. The accident was low speed. Oedema in the supraspinatus muscle belly – as opposed to the tendon – and oedema on the lateral end of the clavicle are consistent with a more recent injury. If the accident caused injuries to the clavicle and supraspinatus causing oedema, the Medical Assessors expect it would have subsided within three months and before the MRI.
There is a report of an ultrasound-guided left shoulder injection on 19 March 2024. The left subacromial subdeltoid bursa was injected with Celestone and local anaesthetic and was described as having been well-tolerated. At this examination, Mr Kvackovski said this had not been helpful. He was not sure if he had had any further injections after that.
Subsequently in the records there is a six-page document about rotator cuff repair for patients from Dr David Liew and a hand-completed Consent for Medical and/or Surgical Treatment, signed by Mr Kvackovski dated 17 April 2024 for “Left Shoulder Arthroscopic Decompression + Cuff Repair and Biceps Tenodesis”, witnessed by Dr Lieu.
On 6 March 2024, Dr Lieu wrote to Dr Kako:
“Thank you for referring Mr Kvackovski back in regard to his left shoulder tendon tear. I last saw him a year ago for a similar problem. His symptoms were stable to the point where he did not want to consider any surgery. He worsened significantly in August last year when he was involved in a motor vehicle accident. Apparently at the time he was driving at low speed, leading a car merged from the left hand side when an aggressive driver behind him rammed him and kept accelerating. He had to wrestle with his steering wheel to maintain control. He has significantly worse in his shoulder since. He now describes extreme difficulty with movement. There is painful clicking. He has not responded to physiotherapy.
Clinically he only had 80 degrees of forward flexion with internal rotation to L3 and 50 degrees of external rotation. All movements were extremely irritable.
I note a progress MRI scan shows tendinopathy of supraspinatus and subscapularis, along with some medial subluxation of his biceps into his subscapularis tendon.
There has been some progression of his tendon tear, especially his upper subscapularis, since his previous MRI scan. I would still expect a reasonable change for at least some symptom improvement with ongoing non-operative measures. He has been referred for subacromial cortisone injection and should continue with his physiotherapy for a rotator cuff strengthening program.
If he fails to improve then surgery may need to be considered. A decompression, biceps tenodesis, and tendon repair can be considered as needed. Provisional approval will be sought, given the severity of his symptoms and lack of improvement over the past six months. I will review him again in about five weeks. Surgery can be confirmed at that stage.”
Medical Assessor Couch notes that Dr Lieu’s description of the left shoulder in this letter is consistent with the picture seen at his medical examination, except that it would now appear to be somewhat worse. This is elaborated on below in the Panel’s reasons.

Details of any relevant injuries or conditions sustained since the accident

Mr Kvackovski did not describe any such subsequent injuries or conditions.

Current symptoms

Mr Kvackovski described constant pain “24 hours” in his left shoulder. He said this sometimes feels hot and burning. When asked to localise pain, he described the left side of the neck, the shoulder blade and the shoulder itself, plus the upper arm.
When asked to describe the worst pain, he put his right hand on the point of the shoulder.

He described markedly restricted movement and difficulties with activities of daily living (ADL). He said that the insurer had provided him with a rail to help him get out of bed. He said that even with the rail, his wife needs to push him so he can sit up and then stand. He described sleep as very poor, “maybe three or four hours a night”.
Mr Kvackovski added that his right shoulder was now beginning to get painful as well.

Current treatment

Mr Kvackovski said that that he takes Nurofen, paracetamol or Voltaren for relief and also applies Voltaren Gel locally. He had not had any recent injections to the shoulder. He recalled some limited benefit from physiotherapy before and this had ceased. He said that when he feels up to it, he still uses the Theraband for shoulder exercises.

Clinical examination

Mr Kvackovski presented as a tall, 65-year-old man who was cleanshaven and had short hair. As noted above, he understood and spoke some English but most communication was through the Macedonian interpreter. His wife, who sat further back in the room, spoke perfect English but did not interfere with the history taking.
He presented in a straightforward and convincing manner, with no obvious dramatization or exaggeration of symptoms. He appeared to make a reasonable effort during examination – noting that the left shoulder girdle clinically appeared to be quite abnormal and irritable. Height was 180 cm, weight 87 kg, giving a BMI of 27 (slightly above the healthy weight range).
He was able to sit during the interview. The Medical Assessor asked him during the interview to demonstrate his previously available left shoulder AROM with his right shoulder, he stood and his wife helped him off with a thick fleecy jacket – he showed limited and apparently painful movement of the left shoulder. For examination of the shoulders, he also removed a shirt and singlet (with the help of his wife).

Cervical spine

This was examined for completeness, although no injury to this region has been referred for assessment.
Posture was within normal limits, apart from the marked asymmetry of the shoulder girdles – see below. There was no significant tenderness to palpation over the cervical spine, but the left trapezius muscle was somewhat tense and tender. There was definite asymmetric restriction of AROM of the cervical spine, with full flexion and extension three-quarters of normal. Rotation was one-quarter of normal to the right and three-quarters to the left, lateral flexion was one-quarter to the right and three-quarters to the left. Right rotation and lateral flexion appeared to be quite markedly painful, with pain localised to the left lateral neck.

Upper limbs

Hands were clean and soft without any callouses, consistent with Mr Kvackovski’s history of doing no recent physical work. Both upper arms measured 32 cm in circumference, the right (dominant) forearm 27 cm, the left 26. Biceps, triceps and brachioradialis reflexes were normal bilaterally. Grip strength was strong on the right. On the left it appeared to be within normal limits, although he complained of pain from the left shoulder girdle during bracing to perform this. Light touch sensation was preserved in both upper limbs. There were no signs of cervical radiculopathy.
With Mr Kvackovski sitting or standing, there was markedly asymmetric and abnormal posture of the shoulder girdles. The left shoulder girdle was held 5-7 cm lower than the right. Once Mr Kvackovski removed his shirt, this was quite striking.
The right shoulder was clinically normal, with AROM full and painless, except that flexion was 160 degrees rather than a full 180 degrees. This was considered consistent with his history of lack of recent physical activity and apparent deconditioning. In the left shoulder there was marked tenderness to palpation over the shoulder joint, maximal laterally, distal to the acromion in the region of the supraspinatus tendon. There was visible wasting of the left supraspinatus and infraspinatus muscle bellies. This was unilateral and not present on the right.
There was marked consistent restriction of AROM in the left shoulder as measured with the goniometer, with repetition.

Right	Left
Flexion	160°	50°
Extension	70°	20°
Abduction	170°	40°
Adduction	40°	10°
External Rotation	90°	40°
Internal Rotation	90°	50°

Consistent with restricted internal rotation on the left, Mr Kvackovski could reach his right thumb up behind his back to T10 level, but the left only to L5. The Medical Assessor considered that this examination showed a markedly abnormal painful and irritable left shoulder joint, with restricted AROM, consistent with documented rotator cuff pathology.

Review of available imaging

Relevant imaging of the left shoulder, both before and after the subject accident have been reviewed above.

Review of documentation

Relevant documentation from treating practitioners has been summarised above.
The Review Panel also notes the Medical Assessment Service (MAS) Certificate of Medical Assessor McGroder dated 26 February 2015. This was in relation to the previous motor vehicle accident on 12 October 2013 (described above). At that time, Mr Kvackovski was complaining of pain in his neck, back and “right side”. He was described as generally fit in appearance. In particular, Medical Assessor McGroder described a full and pain-free range of movement in the left shoulder but moderate painful restriction on the right. He went on to certify 6% whole person impairment of the right upper extremity (because of the shoulder injury) and 5% each whole person impairment for the cervical spine and lumbar spine.

PANEL’S DETERMINATION

The Panel review is not limited to a review of only that aspect of the first instance medical assessment that is alleged to be incorrect and is to be by way of a new assessment of all matters with which the medical assessment is concerned: s 7.26(6) of the MAI Act.
The Panel, comprised of two specialist medical practitioners and a legal practitioner, is required to form its own opinion on the medical question in dispute by reflecting on the panel members’ professional judgment and medical expertise and experience; it is not to choose between competing opinions, nor to assess the correctness of such opinions.[7]
[7] See Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2012] HCA 43 at [47] discussing a Medical Panel, which is in similar form to the Review Panel. See also Insurance Australia Group Ltd t/as NRMA Insurance v Keen [2021] NSWCA 287 and Insurance Australia Ltd v Marsh [2022] NSWCA 31.
The Panel refers to the medical examination report prepared by Medical Assessor Couch, set out above. This report was provided to the Panel prior to its meeting on 25 August 2025. The Panel agrees with and adopts the findings made by Medical Assessor Couch as set out in the medical examination report.

Does the proposed treatment relate to the injury caused by the accident?

A question for the Panel is whether the specified treatment “relates to the injury caused by the motor accident”.
There is no issue that the surgery is a form of treatment and care for the purposes of s 3.24 of the MAI Act.
For the accident to have been causative of the need for the surgery, the accident must have made at least a material contribution to the need for the surgery.[8]
[8] AAI Ltd v Phillips [2018] NSWSC 1710 (Phillips) at [29].
Causation of injury is required to be established on the balance of probabilities. Mr Kvackovski is not required to establish causation to the level of medical certainty.[9]
[9] Briggs v IAG Ltd (t/as NRMA Insurance) (2024) 106 MVR 203; [2024] NSWSC 3 at [43]-[44].
There is documentation of left shoulder symptoms and abnormalities on imaging prior to the accident, as summarised above. Relevantly, the Panel notes:
(a)    Mr Kvacovksi attended upon Dr Mohan in November 2022 regarding pain in his left shoulder;
(b)    Mr Kvackovski was referred to Dr Lieu in December 2022 due to a two-year history of worsening pain in his left shoulder, and
(c)    he reported soreness in his left shoulder to Dr Lieu in March 2023. Potential surgery was flagged by Dr Lieu.
While not determinative, the Panel also notes Mr Kvackovski’s application for personal injury benefits dated 5 October 2023 does not reference his left shoulder in the diagram, nor in his description of injuries.
The accident was not a high-speed crash. Mr Kvackovski describes struggling with the steering wheel because the persistent actions of the driver impacting the whole left side of his vehicle was at risk of pushing his utility into oncoming traffic. However, the Medical Assessors on the Panel, exercising their clinical judgment and expertise, consider that the accident is unlikely to be a more than negligible contributing cause of the pathology in his left shoulder. That is, the accident did not make a material contribution to Mr Kvackovski’s left shoulder injuries.
Further, based on the MRI dated 23 January 2024, the Medical Assessors on the Panel opine that this oedema was likely caused by acute trauma subsequent to the accident, or degenerative change, and was unlikely causally related to the accident. Given Mr Kvackovski’s prior work as a formwork carpenter, the Medical Assessors opine that the pathology was possibly caused by his prior work or a subsequent episode which has not been disclosed. The Medical Assessors on the Panel opine that the pain and restriction in movement in Mr Kvackovski’s left shoulder is not caused by the accident.
The proposed surgery (left arthroscopic rotator cuff repair and open biceps tenodesis by Dr David Lieu) is not causally related to the motor accident. It was in fact being actively considered by Dr Lieu soon before the accident.
Based on the above, the Panel finds that the surgery, being a left arthroscopic rotator cuff repair and open subpectoral biceps tenodesis, does not relate to injury caused by the accident.

Is the proposed treatment reasonable and necessary in the circumstances?

Mr Kvacovksi is required to establish that the treatment is both “reasonable and necessary”.
As has been oft observed by Members of the Commission, the test of “reasonable and necessary in the circumstances” does not direct attention to the relationship between the accident and the treatment. It may be reasonable and necessary for a claimant to have treatment such as surgery to alleviate symptoms from an injury or condition but if that injury or condition was not caused by the accident it will be disallowed on the basis it does not relate to the injury caused by the accident.[10]
[10] See e.g., Rosenbauer v Allianz Australia Insurance Ltd [2022] NSWPICMP 470; Bungate v Insurance Australia Ltd (t/as NRMA Insurance) [2025] NSWPICMP 562; Nelson v AAI Ltd (t/as AAMI) [2025] NSWPICMP 576.
Accordingly, as the Panel has found that the injury was not caused by the accident, the surgery is not reasonable and necessary in the circumstances.

CONCLUSION AND CERTIFICATION

For the above reasons, the Panel finds that the left arthroscopic rotator cuff repair and open subpectoral biceps tenodesis:
(a) does not relate to injury caused by the accident, and
(b) therefore is not reasonable and necessary in the circumstances.
The Panel affirms the certificate of Medical Assessor Rapaport dated 17 December 2024.

[2025] NSWPICMP 740

25 September 2025