Locampo v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPICMP 303
•2 May 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Locampo v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 303 |
CLAIMANT: | Maria Locampo |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
REVIEW PANEL | |
MEMBER: | Terence Stern OAM |
MEDICAL ASSESSOR: | Drew Dixon |
MEDICAL ASSESSOR: | Thomas Rosenthal |
DATE OF DECISION: | 2 May 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); claimant injured in a motor vehicle accident; Medical Assessor determined the injury to the left shoulder suffered by the claimant in the accident was a threshold injury; Review Panel conducted its own examination; Held – Review Panel found the injury to the left shoulder was not a threshold injury; MAC revoked and new certificate issued. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 1. The Panel revokes the certificate of Medical Assessor David McGrath and substitutes the determination to certify that the following injury was not a threshold injury for the purposes of the Motor Accident Injuries Act 2017: · left shoulder. |
STATEMENT OF REASONS
INTRODUCTION
Maria Locampo (Ms Locampo), the claimant, was injured in a motor vehicle accident (the accident) on 30 July 2020. Ms Locampo was the driver of a Fiat stopped in traffic. Her vehicle was struck from behind and pushed into the car in front. Air bags deployed and her vehicle was towed.
Insurance Australia Limited trading as NRMA Insurance (NRMA) is the insurer.
Under the provision of the Motor Accident Injuries Act 2017 (the 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 injuries.
Ms Locampo submitted an Application for Personal Injury Benefits dated 1 September 2020.
Threshold injury dispute
NRMA determined that Ms Locampo had sustained an injury and denied liability for statutory benefits beyond 26 weeks after the accident.
Ms Locampo filed an application in the Personal Injury Commission (Commission) in respect of the dispute.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter, including whether the injury caused by the motor accident was a threshold injury.
A medical assessment matter was determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.
THRESHOLD INJURY – STATUTORY PROVISIONS
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”.
The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
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.”
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)”.
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.”
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:
[8] The alleged factor could have caused or contributed to worsening of the impairment, which was a medical determination.
[9] 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
The injury referred for assessment to Medical Assessor David McGrath (the Medical Assessor) in respect of the dispute as to threshold injury was:
[8] left shoulder – soft tissue injury.
At [3]-[4] in his reasons, Medical Assessor McGrath noted the submissions made by
Ms Locampo and NRMA.
The Medical Assessor took a pre-accident medical history at [7]:
“Ms Locampo is 76 years of age. She has two adult children aged 58 and 59. She has several grandchildren and great-grandchildren. She is widowed from 18 years ago. Ms Locampo came to Australia at age 22 from southern Italy.
On coming to Australia, she worked in several factories. She retired from the last factory at around age 50 after an industrial injury to the left shoulder. She states that it slowly came good over a five-year period and she was able to do simple tasks such as hanging out the washing which has now become a problem.
She does not record any sporting interests. She enjoys gardening and cooking and now looking after her grandchildren.
She does not report any previous motor vehicle accidents or broken bones.
She has received left carpal tunnel surgery. She developed a thyroid disorder around three years ago and takes medication. She also developed reflux and takes Nexium tablets for that condition.
She developed some depression around age 65 and went on to antidepressant tablets.
Ms Locampo denies any previous lower back pain prior to the MVA.”
The Medical Assessor took a history of the accident at [10] and a history of the symptoms and treatment following the accident at [11]:
“Ms Locampo was involved in an MVA on 30 July 2020. She was in a Fiat medium-sized car when the accident occurred around 6.00pm in a 70 kph zone. She had stopped her car in a line of traffic and was hit from the rear by an inattentive driver. Her car was towed away and she accepted a lift to her home some five minutes away. Ms Locampo states that she had no warning of the impact/ Police and ambulance were not in attendance.
She states that she developed pains by the following morning although she also had a restless sleep. Mostly she was aware of neck pain with paraesthesia into the arm and hand. She was also aware of some lower back pain and a tingling sensation in the right outer thigh region.
She consulted her GP approximately two days after the accident and investigations were ordered. She came under the care of Dr Giblin who continued to treat her for a period. She received a needle procedure into the neck and back of uncertain benefit. She was prescribed physiotherapy which continued for a period.”
The Medical Assessor listed the current symptoms at [10].
Ms Locampo reported left-sided neck discomfort or pain which radiated to the superior aspect of the right shoulder and some tingling in the 3rd, 4th and 5th fingers. She had reduced range of motion in the left shoulder.
Ms Locampo was taking two Panadeine Forte tablets at night to help with sleep at the time of the examination. She also took Panadeine Forte tablets and Panadol Osteo tablets two to three times a day. She tried a small exercise program taught to her by a physiotherapist.
The Medical Assessor set out the clinical examination at [12] – [13]:
“12. General presentation
The listed areas were examined.
Cervical Spine
Ms Locampo has a surprisingly good range of neck movements with signs of poor joint usage in the upper thoracic segments. No muscle spasm or guarding was noted. There was a sensory disturbance into all of the fingers on the left but more so the 3rd, 4th and 5th fingers. She had diminished pinprick sensation in the 4th finger. There were no dural tension signs. She was unable to raise the arm due to localised shoulder difficulty. She does not satisfy the condition for radiculopathy.
Lumbar Spine
She had a good range of lumbar spinal movements but symptoms were reproduced with end flexion and extension.
A neurological examination was conducted. She did not have neurological signs in the lower limbs. That is, she had normal deep tendon reflexes, power and sensation. Straight leg raising was normal on both sides. There was no radiculopathy.
Upper Extremity
Ms Locampo does have a reduced range of motion of the left shoulder. The active range of motion was observed, measured by goniometer and tabulated below.
| Shoulder Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Flexion | 180° | 150° |
| Extension | 50° | 50° |
| Adduction | 40° | 40° |
| Abduction | 170° | 140° |
| Internal Rotation | 80° | 60° |
| External Rotation | 60° | 60° |
Discomfort was fairly non-localised but did pertain to the glenohumeral joint and not the shoulder girdle or neck.
13. Comments on consistency
There were no inconsistencies.”
23.The Medical Assessor provided a summary of the relevant documentation at [14].
24.In his determination at [16] – [19], the Medical Assessor considered the issue of causation at [17]:
Ms Locampo was involved in an MVA on 30 July 2020. By her description, this was a fairly forceful rear-end collision. Her car was written off by the insurer and was undrivable at the time. She did not feel particularly injured at the time of the accident but developed pains overnight, particularly in the neck and lower back. She also developed paraesthesia into most of the fingers of the left hand.
Ms Locampo states that she has lost capacity since the accident, particularly with above shoulder height activities and also endurance for sitting and standing due to neck and back pains.
The MVA is the cause of the listed diagnosis.”
The Medical Assessor considered the issue of threshold injury at [19]:
“There is no evidence that she sustained a non-threshold injury to the spine. She does not have radiculopathy in either the upper or lower limbs.
She does have a reduced range of motion in the left shoulder but the origin of visualised tendinopathy on imaging studies is uncertain. She was forced to leave work at around age 50 due to an industrial accident at that time involving the left shoulder. Most likely the tendinopathy was previously established on the basis of this history. It is also unlikely to have been injured in the documented rear-end collision.
Most of her problems can be explained by aggravated pathology such as osteoarthritis.
There is no evidence for an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
The assessment of whether the injury is a ‘threshold injury’ is not a direct measure of symptoms or disability. A finding that the injury is a ‘threshold injury’ indicates that there was an injury caused by the motor accident and that there may be continuing symptoms, however the injury satisfies the definition of a threshold injury under the Act and the Regulation.”
Medical Assessor McGrath concluded that the following injury was a threshold injury:
[8] left shoulder – soft tissue injury.
REVIEW PROCEDURE
Ms Locampo lodged an application for review of the assessment of the Medical Assessor.
On 17 April 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).
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.
The review was by way of a new assessment of all matters with which the medical assessment was concerned.
SUBMISSIONS
Ms Locampo’s submissions, dated 18 February 2024
The claimant submitted that Medical Assessor McGrath erred in concluding that based on the history he obtained that she suffered at age 50 an industrial accident injury to her left shoulder, any tendinopathy in her left shoulder was previously established and likely to have been uninjured in the motor vehicle accident.
The claimant submitted that Medical Assessor McGrath erred in concluding that most of her problems are due to aggravated pathology such as osteoarthritis.
The claimant submitted at [5] – [6] that the history obtained by the Medical Assessor at page 3 of his report at item 7 was inconsistent with histories provided by the claimant.
In view of the claimant’s provided histories, the claimant submitted that the Medical Assessor erred in finding that tendinopathy was previously established on the basis of a history of shoulder problems.
The claimant submitted that the Medical Assessor concluded that there was no evidence of injury to the nerves or complete or partial rupture of the tendons, ligaments, menisci or cartilage without providing reasoning.
The claimant cited the legal principle in Fajloun v Allianz Australia Insurance Limited [2023] NSWPICMP 534 at [10]:
“126. Justice Wright in Briggs v IAG Limited t/as NRMA Insurance [2022] NSWSC 372 said at [141] in a judicial review application concerning a medical review of a ‘minor’ injury assessment:
‘The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which relate to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injury.’
127. The test therefore to be applied as set out in Part 6 of the Guidelines and the questions to be answered by the Panel is whether Mr Fajloun’s right shoulder injuries were ‘caused by the accident’ and the approach to that should be a consideration of a medical decision and a non-medical informed judgment as follows:
(a) could the accident have caused either or both the labral tears in the right shoulder (medical determination), and
(b) did the accident in fact cause either or both the labral tears in the right shoulder (non-medical determination).”
The claimant submitted that the medical opinion of Dr Khan should be accepted.
The claimant submitted that there was no contemporaneous evidence of a left shoulder injury whilst she worked at James N Kirby.
The claimant submitted at [17] that considering the seriousness of the motor vehicle accident and the relative minor nature of her prior shoulder complaints and the radiology, it is more likely than not that the claimant suffered the shoulder tears in the accident.
NRMA’s submissions in reply, dated 2 April 2024
The insurer submitted that on the claimant’s submission that there was no basis of a history of prior shoulder problems, there is contemporaneous medical evidence in a consultation on 4 May 2020 admitted by the claimant in their submissions to suggest there was some potential issue in the shoulder pre-dating the subject accident.
The insurer submitted that the Medical Assessor documented that the claimant did not feel particularly injured at the time of the accident. The insurer submitted that this account was consistent with the tear being pre-existing as the claimant would have felt immediate pain and experienced a reduced range of motion if the tear had occurred at the time of collision.
The insurer submitted that the Medical Assessor showed clear reasoning as to why he concluded that the tear was pre-existing taking into account the symptomology felt by the claimant at time of collision, the force of the collision, the claimant’s age and prior occupation, and documented arthritis seen on imaging.
The insurer thus submitted that there was no basis to refer the medical assessment to a Review Panel and submitted that the claimant’s application for review of Medical Assessor McGrath’s certificate should be dismissed.
NRMA’s further submissions of 2 April 2025
On 28 March 2025, Member Stern requested further submissions from the parties in respect to the photos of the Accident and examination of Ms Locampo by the Medical Assessor on
8 February 2022 in regard to her left shoulder.
NRMA’s response to the request for further submissions is below:
Property Damage photos
[8] “The Insurer submits it does not have a biomechanical report regarding the property damage photos and would suggest the Claimant is in the best position to advise what damage was preexisting on the car.
[9] The Insurer submits the subject accident was reported as a rear end collision whilst stationary and the Claimant’s vehicle did also collide with the vehicle in front as a result.
Left Shoulder
[10] The Insurer submits the subscapularis tear should be seen in the context of other degenerative findings consistent with age, occupation and thus incidental.
[11] The Claimant was seat belted, thus there was no significant shoulder and shoulder blade motion that could cause a tear.
[12] The Insurer submits there is contemporaneous medical evidence before the Panel that documents the Claimant saw her GP for shoulder symptoms prior to the subject accident.
[13] The Insurer submits that that the available medical evidence suggests that the multi-pathology demonstrated within the imaging reports of the bilateral shoulders was unlikely to be caused by the subject accident and would have been pre-existing.
[14] The Insurer submits at most the subject accident caused the pre-existing underlying pathology, particularly the bursa to become symptomatic which is a threshold injury.
[15] The Insurer submits that the available medical information indicates that the Claimant sustained a grade II whiplash associated disorder with pain referral to bilateral shoulders as a result of the subject accident. The Insurer notes that initially only a neck injury has been continuously reported with the progression of other areas being attributed to the subject accident over time.
[16] The Insurer submits Assessor McGrath documents that the Claimant did not feel particularly injured at the time of accident. This account is consistent with the tear being pre-existing, for had the tear occurred at the time of collision, the Claimant would have immediately felt pain and experienced a reduced range in motion that would have been reported to the GP in these initial consultations.”
Claimant’s further submissions of 2 April 2025
Ms Locampo’s response to the request for further submissions is below: -
[8] “It is submitted that the damage to both the rear and front of the Claimant’s car is significant as it shows that she suffered two impacts in the motor vehicle accident. There was the initial impact when hit from the rear and the second impact when her car collided with the car in front. Furthermore the deployment of the air bags is significant as it shows her car must have been hit from the rear by a car travelling at a significant speed. Accordingly it is submitted that the force of both impacts are likely on balance to cause the two rotator cuff tears. The Claimant is shown to have sustained in her left shoulder.
[9] In relation to item 7 of the Panel’s message the following is submitted:
The Medical Assessor (MA) notwithstanding having a history that the accident involved a significant impact, finding reduced range of movement in the left shoulder and noting that the left shoulder MRI dated 14/9/2020 showed two rotator cuff tears finds on the basis of a 20 year old history of a prior left shoulder injury that it was unlikely that the Claimant’s left shoulder was injured in the motor vehicle accident. It is submitted that in doing so he has fallen into error by disregarding the more likely reason for her left shoulder injury. Furthermore, the fact that he was unaware that there were two impacts in the motor vehicle accident and that the airbags were deployed makes his decision on causation even less probable.”
EVIDENCE BEFORE THE REVIEW PANEL
Personal Injury Claim Form dated 1 September 2020
In a Personal Injury Claim Form dated 1 September 2020, Ms Locampo noted injuries of neck pain, pain in both shoulders, back pain, anxiety, dizziness, headaches, and weakness in both arms.
CT scan of cervical spine dated 3 August 2020
The report of the CT scan concluded that there was multilevel endplate spondylotic changes with multilevel severe facet joint arthropathy, and severe right sided C3/4 and C4/5 foraminal narrowing potentially impinging both exiting right C4 and C5 nerve roots. No acute cervical spine fracture, alignment of the cervical spine intact, no prevertebral soft tissue swelling. There was no acute cervical spine fracture, alignment of the cervical spine was intact, and there was no prevertebral soft tissue swelling.
Certificate of Capacity dated 2 September 2020
Dr Ali diagnosed Ms Locampo with neck pain and a whiplash injury.
MRI scan of the cervical spine on 11 September 2020
The scan showed discovertebral changes throughout the cervical spine with mild cord compression at C3-4, multilevel facet joint arthropathy, and multilevel foraminal stenosis with right C4 and C5 root impingement.
MRI scan of the left shoulder on 11 September 2020
The scan showed AC joint arthropathy, prominent subacromial subdeltoid bursal inflammation, bicipital tenosynovitis, intermediate grade partial thickness subscapularis tear, supraspinatous lendinosis with some calcific change, and glenohumeral joint effusion with mild synovitis.
MRI scan of the right shoulder on 11 September 2020
The scan showed AC joint arthropathy with synovitis, subacromial and subdeltoid bursal inflammation, mild tendinosis of the long head of biceps, mild supraspinatus tendinosis, and no cuff tear.
MRI scan report of the lumbar spine dated 7 July 2021
Discovertebral changes with a degenerative spondylolisthesis at L5 “multiple levels”, canal stenosis with potential right L4 root impingement, and multiple nerve root/Tarlov cysts.
MRI scan of the lumbar spine dated 27 June 2023
The scan showed lumbar spondylitic change with multilevel spinal canal stenosis and disc osteophytic encroachment on exit foramina.
Report from Mr Patrick Cormack dated 11 November 2020
Mr Cormack reported Ms Locampo had non-specific bilateral shoulder/neck/upper back pain attributable to soft-tissue injuries arising from the subject accident. There was moderately restricted shoulder and neck movement and strong guarding. There were clear indications of fear-avoidance behaviour and a degree of catastrophising. Injuries were minor despite the pain. At a follow up, Ms Locampo reported no change and admitted to avoiding the prescribed exercise program completely.
Bone scan dated 7 December 2020
The scan showed moderately severe degenerative arthritis in the facet joints at the C3/4, C4/5, C6/7, C7/T1 and T1/2 levels; discovertebral degenerative arthritis at the C3/4, C5/6 and T8/9/10, arthritis at the manubrio-sternal junction.
Whole body bone scan report – cervical and thoracolumbar spine dated 1 July 2021
The scan showed moderately severe degenerative arthritis in the facet joints on the right side at the C4/5, C5/6, C6/7, C7/T1. T1/T2 levels, mild arthropathy in the facet joints bilaterally at the C3/4 levels and the left facet joint at the C5/6 level, discovertebral degenerative arthritis in the thoracic spine at the T8/9/10 levels and the lumbar spine at the L4/5 and L5/S1 levels, degenerative arthritis in the facet joints at all levels of the lumbar spine, particularly the right facet joint at the L4/5 level and the left facet joint at the L1/2 and L5/S1 levels.
Report of Dr Khan dated 15 June 2023
There was partial rupture of left shoulder tendons arising from motor vehicle accident from MRI findings. In particular, the radiology results for the left shoulder MRI scan from
11 September 2020 as reported by Dr Ganeshan concludes there is: Intermediate grade partial thickness subscapular tear and Intermediate grade partial thickness rim tear of the bursal surface of the supraspinatus tendon.
Mrs Locampo’s left shoulder was normal to inspection. She was tender to palpation over the anterior and posterior aspects of the left glenohumeral joint on today’s assessment. The AC joint on the left side was tender to palpation. Mrs Locampo was able to perform abduction of her left shoulder to 80 degrees, flexion of her left shoulder to 90 degrees, internal rotation of her left shoulder to 50 degrees and external rotation of her left shoulder to 40 degrees before being limited by pain and discomfort in her left shoulder region. Extension was 20 degrees. Hawkins and Jobe’s tests were painful and positive on the left side.
The right shoulder is normal to inspection. The glenohumeral joint was non- tender to palpation. Mrs Locampo was able to perform flexion at the right shoulder to 90 degrees, abduction to 90 degrees, internal rotation of her right shoulder was to 60 degrees and external rotation was also to 60 degrees as well. Extension was 20 degrees. Hawkins and Jobe’s tests were painful and positive on the right side.\
Mrs Locampo suffers from chronic left shoulder pain, stiffness and discomfort, secondary to an acute left shoulder rotator cuff tendon strain, with impingement secondary to subacromial subdeltoid bursitis. Mrs Locampo underwent a left subacromial cortisone injection procedure, on 16.10.2022 for management of her left shoulder condition. She has continued to suffer with persisting pain, stiffness and discomfort affecting her left shoulder over the course of the past 3-years.
Mrs Locampo suffers from chronic right shoulder pain, stiffness, and discomfort, secondary to a right shoulder rotator cuff tendon strain, with impingement secondary to subacromial subdeltoid bursitis. Mrs Locampo underwent a right subacromial cortisone injection procedure, on 14.10.2022 for management of her right shoulder condition. She has continued to suffer with persisting pain, stiffness and discomfort affecting her right shoulder over the course of the past 3-years.
Report of Dr Ganeshan Cervical spine and Left shoulder MRI scan dated 14th September 2020
Discovertebral changes throughout the cervical spine with mild cord compression at C3/4. There is multilevel facet joint arthropathy and there is multilevel foraminal stenosis with root impingement.
1. AC joint arthropathy
2. Prominent sub cranial subdeltoid bursal inflammation
3. Bicipital tenosynovitis
4. Intermediate grade partial thickness subscapular tear
5. Supraspinatus tendinosis with some calcific changes. There is some bursal surface fraying and there is an intermediate grade partial thickness rim tear of the bursal surface. There is some focal atrophy of the anterior fibre of the supraspinatus muscle belly.
6. Glenohumeral joint effusion with mild synovitis with bicipital tenosynovitis and a partial thickness subscapularis tear. There is supraspinatus tendinosis with calcific changes and some bursal surface and some focal fatty atrophy of the anterior fibres of the supraspinatus muscle belly with a glenohumeral joint effusion with mild synovitis.
Report of Dr Ganeshan Right shoulder MRI dated 14th September 2020
1. AC joint arthropathy with synovitis
2. Subacromial subdeltoid bursa; inflammation
3. Mild tendinosis of the long head of biceps
4. Mild supraspinatus tendinosis
5. No cuff tears.
Clinical notes – Dr Matthew Giblin various dates
24 August 2020: Dr Matthew Giblin (orthopaedic surgeon) recorded that Ms Locampo had neck pain with radiation to both shoulders since the subject accident “but it doesn’t seem to be in any specific radicular pattern”. On examination Dr Giblin reported that Ms Locampo had reduced range of motion, pain, and muscle spasm with no significant peripheral neurological signs. A shoulder examination showed restriction and pain, suggesting rotator cuff disease.
7 October 2020: Dr Giblin reported the right and left shoulder MRI scan demonstrated findings of multipathology. Dr Giblin noted that the cervical spine MRI showed the degenerative changes with facet arthropathy. Dr Giblin discussed Ms Locampo’s pain again and recorded that “she seems to get a pinching on the left side of the neck and is probably facet. She gets burning in the left arm and an ache in the right arm when she uses it". He also used the term “tendinitis”: an inflammation of the tendon due to repetitive overuse leading to pain and discomfort as well as “tendinosis”: chronic tendon injury due to overuse leading to degeneration.
3 March 2021: Dr Giblin reported that Ms Locampo “had a fall recently and has aggravated her pain by about twenty five percent of her neck, shoulders and back”.
14 July 2021: Dr Giblin suggested Ms Locampo to have a left sided C5/6 facet block and a right sided L4/5 and L5/S1 facet block.
9 August 2021: Dr Giblin reported that Ms Locampo had some partial relief from the facet block and her pain “has gone from the eight to a six, but she still has some discomfort in that right leg”. Dr Giblin was no sure whether the pain was coming from the canal at L4/5 or whether it was right sided disc lesion or a combination of both.
11 October 2021: Dr Giblin reported that Ms Locampo’s symptoms had returned and that “there is a possibility that it might be coming from that L4 nerve root within the foramen”, so he has suggested Ms Locampo has it blocked.
3 November 2021: Dr Giblin reported that the last injection had made no difference, “the first injection still has given her good relief of her right leg pain; the majority of symptoms, however, now appear to be low back pain”. Dr Giblin believed that the only surgical solution for that was a two-level fusion.
4 July 2023: Dr Giblin “an aggravation of underlying degenerative change of her cervical spine with the possibility of intermittent radiculopathy, bilateral rotator cuff disease and an aggravation of underlying degenerative change and canal stenosis of the lumbar spine".
Dr Giblin reports tendinosis not tendonitis.
Photographs of the damage
The claimant uploaded photographs of the damage on 25 July 2024.
The panel makes the following observation in respect of the photographs of the damage on the basis of its understanding from the history taken from Ms Locampo that there were two impacts, firstly the rear end and secondly, being pushed into the vehicle in front. The Panel does not claim any expertise in the interpretation of photographs of accidents, and the following comments simply reflect the conclusions that arise from the photographs as a matter of common sense only. The Panel observes what the photographs appeared to show. There appeared to be marked damage to the rear, the front end appeared to show marked damage as well, and the photographs appeared to show that the driver’s airbags were deployed and that the passenger’s airbags also appeared to have deployed. And there appeared to have been an intrusion of the boot into the spare tyre. All in all, the photographs, exercising common sense, appeared to show a significant motor vehicle accident. The Panel noted that the history was that the vehicle had been written off.
The Panel observed that the extent of the damage was consistent with the claimant’s complaints of pain in her neck and lower back and subsequently her shoulders.
When the Medical Assessor saw her for the examination on 8 February 2022, he reported that there was restricted range of motion of the left shoulder and he noted that the MRI of the left shoulder on 14 September 2020, some six weeks after the accident, showed there was subacromial bursitis and a partial thickness subscapularis tear, supraspinatus tendinosis with calcific change with bursal surface fraying and an intermediate grade partial thickness rim tear of the bursal surface and that there was glenohumeral effusion with synovitis and bicipital tenosynovitis. This is consistent with the injury to the shoulder on impact.
General practitioner’s clinical notes
The findings of the MRI were reiterated by Dr Matthew Giblin. In his Independent Medical Examination (IME) report of Dr Khan, occupational physician, reported partial rupture of the left shoulder tendons arising from the accident, noted on MRI of 11 September 2020, as reported by Dr Ganeshan with intermediate grade partial thickness subscapularis tear and intermediate grade partial thickness rim tear of the bursal surface of the supraspinatus tendon.
The Panel observed that, by definition, this a non-threshold injury.
In her submission, the claimant relied on the IME report of Dr Yasmin Khan, occupational physician, using the range of motion impairment as per Pie Charts 38 to 44 in Chapter 3 of the AMA 5 Guides which gave a left shoulder upper extremity impairment rating of 7% + 2% which equals 9% WPI, based on his assessment of the shoulder on 15 June 2023. This corresponds to a left shoulder whole person impairment rating of 5%.
This was consistent with the limitation of range of motion found by Medical Assessor David McGrath, in his MAC dated 18 February 2022.
THE MEDICAL EXAMINATION BY THE PANEL
Ms Locampo was examined by Medical Assessor Rosenthal and Medical Assessor Dixon at the Commission’s Medical Suites on 31 January 2025.
She was accompanied by a friend and support worker.
History
Ms Locampo confirmed the history previously given in regard to a motor vehicle accident that occurred on 30 July 2020. She was the driver of a Fiat with her seatbelt on. She was stopped in traffic when her vehicle was struck from behind and pushed into the car in front. Airbags deployed and her car was towed away. She managed to get out of the car on her own with the help of bystanders. After going home, she noticed shoulder and neck pain.
She consulted her GP and had various investigations and was referred to Dr Matthew Giblin, orthopaedic surgeon. She was given physiotherapy. Her neck and left shoulder pain persisted. She received a cortisone injection which did not give her much relief. She said
Dr Giblin wanted to do surgery.
The pain in her left shoulder and neck had persisted and had impacted on her home activities and activities of daily living. She currently lives on her own. She is restricted with hanging out clothes and now has been provided with a care package. The lawns are mowed by her son. She cannot sleep on her left side. She can do some meal preparation at home.
She was adamant that her left shoulder had no symptoms at the time of the subject accident.
It was noted to her that there was evidence of a pre-existing left shoulder condition. She said she injured her left shoulder when she worked at Kirby’s doing assembly work. She thought this had happened 35 years ago but documents indicate that her injury to the left shoulder occurred when she was aged 50 and she is now aged 77.
She had to stop the assembly work apparently after her left shoulder was injured. She said following treatment her left shoulder symptoms eventually resolved.
She was adamant that her left shoulder had fully recovered and had no symptoms at the time of the subject accident.
Current symptoms
Ms Locampo had constant pain in her shoulder. She had trouble moving it.
She would get left-sided neck pain and discomfort as well as left-sided headaches.
The shoulder pain was on the top and at the back of the shoulder.
Current treatment
Ms Locampo was having five physiotherapy treatments per year. She took Panadol Osteo daily and used a Theraband for stretching.
Investigations
No radiology was presented.
The documents noted an MRI of the left shoulder dated 11 September 2020 which concluded:
“1. AC joint arthropathy.
2. Prominent subacromial/subdeltoid bursal inflammation.
3. Biceps tenosynovitis.
4. Intermediate grade partial thickness subscapularis tear.
5. Supraspinatus tendinosis with some calcific change. There is some bursal surface fraying and there is an intermediate grade partial thickness rim tear of the bursal surface. Interestingly there is some focal fatty atrophy of the anterior fibres of the supraspinatus muscle belly.
6. Glenohumeral joint effusion with mild synovitis.”
Physical examination
Ms Locampo walked with a normal gait and posture and appeared to be in no significant distress.
Range of motion of both shoulders was measured with a goniometer and recorded in the table below:
| Shoulder Movement | Left | Right |
| Abduction | 90° | 120° |
| Flexion | 120° | 120° |
| Extension | 40° | 40° |
| Adduction | 40° | 40° |
| External rotation | 70° | 70° |
| Internal rotation | 50° | 60° |
She was tender in her left biceps groove and there was AC joint tenderness, supraclavicular tenderness and upper trapezius tenderness.
The right shoulder was not as tender.
Her neck movements were reduced in rotation by one-third bilaterally. There was no asymmetry of neck movement and no muscle spasm or guarding of the cervical spine.
Her left arm revealed 4+/5 power globally.
Upper arm measurements were 32.5cm on the right and 32cm on the left, 10cm above the olecranon.
Forearm measurements were 21cm on the right and 20cm on the left, 10cm below the olecranon.
She had a full range of elbow and wrist movements on both sides.
Diagnosis, causation and reasons
The history from Ms Locampo indicates injuries to her neck and left shoulder occurred in the subject accident. She denied pre-existing left shoulder symptoms and there was no evidence within the documents that her left shoulder was symptomatic prior to the motor vehicle accident.
The MRI results of the left shoulder indicate partial thickness tears in the subscapularis and supraspinatus. The assessors were unable to view any pre-accident scans of the left shoulder.
Ms Locampo continues to have a left shoulder injury. She appears to have aggravated a pre-existing degenerative condition in the left shoulder.
There was no evidence that the tears reported in the MRI were present prior to the subject accident.
The Panel determined on the balance of probabilities that those tears either occurred or were extended by the mechanism of the accident. She reported that she was holding the steering wheel at the time of the impact and upon the accident occurring the left shoulder became symptomatic. In view of this and the history which the panel accepted that the left shoulder was asymptomatic before the accident but became symptomatic at the time of the accident the injury to the left shoulder could have been caused by the accident and on the balance of probabilities was caused by the accident. Theleft shoulder would be considered a non-threshold injury for the purposes of the Act.
Medical Assessor Rosenthal and Medical Assessor Dixon noted Medical Assessor McGrath’s opinion that the tendinopathy was previously established on the basis of the history and in his view it was unlikely to have been injured in the documented rear-end collision. However, the Panel considers that Medical Assessor McGrath did not take into account that the left shoulder was asymptomatic and became symptomatic at the time of the subject accident.
Conclusion
Post-examination, the Panel concluded that on the balance of probabilities, partial thickness tears in the subscapularis and supraspinatus of the left shoulder were the result of the pre-existing degenerative condition of the left shoulder and on the balance of probabilities, those tears either occurred or were extended by the mechanism of the accident. The mechanism was that Ms Locampo was holding the steering wheel at the time of the impact and the accident most likely caused her left shoulder to become symptomatic.
Medical Assessor Dixon noted that Ms Locampo’s reference to her left shoulder to Dr Sibun (who ordered an MRI) is sufficient proximity to this subject MVA noting she had both neck and shoulder strains when she saw this orthopaedic surgeon. The MRI suggested extension of a pre-existing tear that appeared acute. Her pre-existing shoulder condition was asymptomatic at the time of the MVA. Her vehicle was significantly damaged in the accident. The collision was sufficient to cause Locampo’s neck whiplash and shoulder strain injuries.
The Medical Assessors noted that Medical Assessor McGrath had been of the opinion that the tendinopathy was previously established on the basis of the history and in his view, it was unlikely to have been injured in the accident. The Panel however considered that Medical Assessor McGrath had not considered that the left shoulder was, prior to the accident, asymptomatic and became symptomatic at the time of the accident.
HOW THE PANEL DEALT WITH THE SUBMISSIONS
The Panel refers below to the insurer’s submissions by reference to paragraph numbers and notes::
[40] The claimant indicated that the shoulder was asymptomatic at the time of the MVA on 30/07/20. There is no evidence to contradict this statement. We are aware of the old left shoulder injury 27 years prior but no evidence of a pre-existing tear in Rotator cuff.
[41] The claimant attended Dr M Giblin on 24th August 2020 (25 days after the MVA) Dr Giblin’s report is within the documents dated 4th July 2023. He noted symptoms from the neck radiating to both shoulders and found the injury to the left shoulder (including reduced ROM). He ordered the MRI. The report is consistent with an acute injury. The documents indicate complaints occurred soon after the MVA but perhaps not immediately. The neck pain could have masked shoulder symptoms. Shoulder complaints commenced between the referral to Dr Giblin and Ms Locampo’s attendance upon Dr Giblin. This is sufficient to establish medical causation of a shoulder injury with the additional information from Dr Giblin. As previously noted it appears that Medical Assessor McGrath did not take into account all of the facts in regard to the onset of symptoms.
[42] As to the force of the collision, while it can not be determined by the medical assessors, there is evidence of front and rear damage to Ms Locampo’s vehicle and the airbags deployed. Ms Locampo has documented arthritis but this is not relevant to the RC tear. The claimant’s age and previous occupation is not relevant to the issue of the RC tear. The Panel believes that NRMA is speculating on whether there was a pre-existing tear (for which they have no documentary evidence) but even if this was the case, the medical assessors consider that on the balance of probabilities, any such tear was extended by the mechanism of the accident.
NRMA’s further Submissions of 2 April 2025:
[40] NRMA submits the subscapularis tear should be seen in the context of other degenerative findings consistent with age, occupation and thus incidental.
The Panel, in response to this submission, formed the view that while the tear may have been present prior to the accident, it was asymptomatic. The Panel further considers that the onset of the left shoulder symptoms following the accident indicates that on the balance of probabilities the tear extended due to the accident.
In reply to NRMA’s submission at [8]:
“[8] The Insurer submits that the available medical information indicates that the Claimant sustained a grade II whiplash associated disorder with pain referral to bilateral shoulders as a result of the subject accident. The Insurer notes that initially only a neck injury has been continuously reported with the progression of other areas being attributed to the subject accident over time”
The Panel is of the opinion that it is important that the MRI of the shoulder was performed six months after the accident. The indication was primary shoulder pain. The Panel considers that the Submission by the Insurer is incorrect if the intent of the submission is that the accident did not cause an extension of the tear, but rather that the whiplash injury caused pain referral to the bilateral shoulders, but not as such any discrete injury to the shoulder let alone the tear.
In reply to NRMA’s submission at [9]: -
[9] “The Insurer submits Assessor McGrath documents that the Claimant did not feel particularly injured at the time of accident. This account is consistent with the tear being pre-existing, for had the tear occurred at the time of collision, the Claimant would have immediately felt pain and experienced a reduced range in motion that would have been reported to the GP in these initial consultations”
This statement is not consistent with the documents provided. This is likely a misinterpretation of what was stated. Complaints were clearly made following the accident which resulted in the ordering of the MRI. The precise timing of the complaints cannot be determined but did occur within a reasonable time frame to establish causation.
The Panel further notes that with respect to Dr Ganeshan, the radiology report confirms the partial thickness tear of the supraspinatus.
DETERMINATION
The Panel revokes the certificate of Medical Assessor McGrath and substitutes the determination to certify that the following injury was not a threshold injury for the purposes of the Act:
· left shoulder.
0
2
0