Maamari v QBE Insurance (Australia) Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Maamari v QBE Insurance (Australia) Limited [2024] NSWPICMP 633
CLAIMANT:	Elias Fares Maamari
INSURER:	QBE Insurance (Australia) Ltd
REVIEW PANEL
LEGAL MEMBER:	Terence Stern OAM
MEDICAL ASSESSOR:	Geoffrey Stubbs
MEDICAL ASSESSOR:	Shane Moloney
DATE OF DECISION:	6 September 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; Medical Assessor (MA) determined claimant’s whole person impairment (WPI) was 6% and the proposed treatment disputes were not caused by the motor accident; Held – on re-examination claimant’s WPI is 12%; the proposed treatment for the right shoulder was causally related to the accident and was reasonable and necessary in the circumstances; Medical Assessment Certificate revoked and a new certificate issued.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor McGrath dated 18 February 2024 and substitutes the determination to certify that the following injuries caused by the motor accident gave rise to a whole person impairment of 12%: (a) right knee, and (b) left and right shoulders. 2. The Review Panel further certifies that the following treatment: (a) arthroscopic labral repair surgery of the right shoulder was caused by the accident and is reasonable and necessary.

STATEMENT OF REASONS

INTRODUCTION

Elias Fares Maamari (Mr Maamari), the claimant, was born in 1986.
Mr Maamari alleges he suffered injury in a motor vehicle accident (the accident) on 8 August 2016.
Mr Maamari brought a claim for common law damages for the injuries she sustained under the Motor Accident Compensation Act 1999 (the MAC Act).
QBE Insurance (Australia) Ltd ABN 78 003 191 035 (QBE) is the insurer.
There is a dispute between Mr Maamari and QBE about:
(a)    the degree of permanent impairment under s 58(1)(d) of the MAC Act;
(b)    whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances under s 58(1)(a) of the MAC Act, and
(c)    whether any such treatment relates to the injury caused by the motor accident under s 58 (1)(b) of the MAC Act.
This constitutes a medical dispute within the meaning of the MAC Act.
The Motor Accident Permanent Impairment Guidelines(the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.
The dispute was referred to the Personal Injury Commission (the Commission) and the Commission assigned it to Medical Assessor David McGrath for assessment.
On 18 February 2024, Medical Assessor McGrath issued a certificate under s 61 of the MAC Act.

THE REVIEW

Mr Maamari requested referral to a Review Panel (the Panel) on the basis that there was reasonable cause to suspect that the Medical Assessor was incorrect in a material respect.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.
Pursuant to s 63(3) of the MAC Act and Schedule 1, cl 14(F)(2) of the Personal Injury Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accident’s Division of the Commission.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a Panel reviewing a decision of a Medical Assessor.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the 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 of the medical assessment is by way of a new assessment of all the matters in which the medical assessment is concerned.

DOCUMENTS CONSIDERED BY THE PANEL

The Panel issued a direction to the parties requesting provision of respective bundles for consideration. The parties filed bundles of documents.
On 21 May 2024, Mr Maamari’s solicitor uploaded to Pathway an indexed bundle of documents (Mr Maamari’s documents). On 30 May 2024, QBE’s solicitor uploaded to Pathway an indexed bundle of documents (QBE’s documents).

REVIEW PROCEDURE

Mr Maamari sought a review of the Medical Assessment under s 7.26 of the MAI Act (the Review).
A delegate of the President of the Commission determined there was reasonable cause to suspect that the medical assessment was incorrect in a material respect and referred the matter to the Review Panel (the Panel).
The review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission: s 7.26(5A) of the MAI Act. The President’s delegate has convened this Panel to conduct the review of the Medical Assessment.
The Review of the Medical Assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect. The Review is by way of a new assessment of all matters with which the medical assessment is concerned: s 7.26(6) of the Motor Accidents Injuries Act 2017 (MAI Act). Section 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
Rules 127 to 130 of the 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: Rule 128 of the PIC Rules.
On 7 June 2024, the Panel informed the parties that it considered a re-examination of Mr Maamari was required. Arrangements were made for Mr Maamari to be re-examined by Medical Assessor Stubbs on 9 July 2024.

LEGISLATIVE FRAMEWORK

Mr Maamari’s claim is governed by the provisions of theMAC Act. This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of compensation by way of lump sum damages for persons injured in motor accidents in New South Wales.

WHOLE PERSON IMPAIRMENT

Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 of the MAC Act provides a disagreement between a claimant and an insurer on three distinct matters are “medical assessment matters” and this includes “whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%”.
Section 60 of the MAC Act provides that either party may refer a medical dispute to the President who is to arrange for the dispute to be referred to one or more Medical Assessors. Clauses 1.5-1.7 of the Guidelines relate to the assessment of permanent impairment and provide:
“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the (MAC) 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 is related to the accident in question is 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.
· 2.6 Causation is 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 is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’
This involves a medical decision and a non-medical informed judgement.
1.7 There is no simple common test of causation that is 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 is a contributing cause, which is 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 is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAC Act in determining issues of causation. Sections 5D and 5E of the CL Act apply to the MAC Act. In Raina v CIC Allianz Insurance Ltd Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss 5D and 5E: see s. 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
These observations were made in the context of a review panel being constituted by three medical experts as opposed to the composition of the present panel following the amendments to the MAC Act.

TREATMENT DISPUTE

Section 83 of the MAC Act imposes a duty on insurers to pay for treatment as the claim progresses as follows:
“(1) Once liability has been admitted (wholly or in part) or determined (wholly or in part) against the person against whom the claim is made, it is the duty of an insurer to make payments to or on behalf of the claimant in respect of—
(a) hospital, medical and pharmaceutical expenses, and
(b) rehabilitation expenses, and
(c) respite care expenses in respect of a claimant who is seriously injured and in need of constant care over a long term, and
(d) attendant care services expenses in respect of a claimant who is seriously injured and in need of constant care over a long term (being services provided by a person with appropriate training to provide those services, but not including services provided by a person who is related to the claimant or any services for which the claimant has not paid and is not liable to pay),
as incurred.
(2) The duty of an insurer under this section to make payments applies only to the extent to which those payments—
(a) are reasonable and necessary in the circumstances, and
(b) are properly verified, and
(c) relate to the injury caused by the fault of the owner or driver of the motor vehicle to which the third-party policy taken to have been issued by the insurer relates.”
If, as in this case, a request is made to the insurer to fund particular treatment, but the insurer refuses to pay for that treatment, s 58(1) provides that the following medical assessment matters can be determined by the Commission:
(a) “whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances”, and
(b) “whether any such treatment relates to the injury caused by the motor accident”.
A Medical Assessment Certificate issued by the Commission in respect of treatment disputes are binding upon the parties.
Not all medical disputes have to be referred to the Commission for determination. Under the MAC Act and common law principles concerning the assessment of damages, damages for pecuniary (economic losses) can be assessed and awarded by a legal member. Pecuniary losses include damages for loss of earnings and earning capacity as well as damages for expenses incurred in connection with treatment, care provided to the claimant, replacement care and respite care.

Treatment related to the injury resulting from the motor accident

Section 83(2)(c) of the MAC act provides that the insurer’s duty to pay for treatment is not enlivened if the treatment in dispute does “not relate to the injury resulting from the motor accident”. This clearly requires the Panel to determine what were the injuries caused by the accident before determining whether the treatment relates to those injuries.
Proceedings concerning treatment disputes do not concern the assessment of whole person impairment (WPI) therefore the provisions about causation of injury in the AMA 4 and Chapter 6 of the Guidelines do not determine the issue currently before the Panel. Provisions of the CL Act and the common law therefore applies to the issue of causation.
The Panel notes the decision of AAI Limited t/as AAMI v Phillips [2018] NSWSC 1710 (Phillips) where the test of causation of surgical treatment was determined in a matter where the claimant had three motor accidents. The court said:
“[28] The requirement in s 58(1)(b) is to determine whether the treatment relates to the injury caused by the accident. If the injury that existed at the time of the Panel’s assessment was not the injury caused by the accident (the mild soft tissue injuries superimposed on the chronic degenerative changes) but, rather, simply the continuation of those pre-existing degenerative changes, then the treatment cannot relate to ‘the injury caused by the motor accident’.
[29] I accept the plaintiffs’ submission that for any of the three motor accidents to have been causative of the need for the suggested surgery, the accident would have to have made at least a material contribution to the need for surgery. Further, the Panel should have considered whether the proposed surgery would not have arisen but for the occurrence of one or more of the accidents being considered.”

Treatment that is reasonable and necessary in the circumstances

In order for the insurer to be under a duty to pay for the treatment, the claimant must also establish in accordance with s 83(2)(a) that the treatment is “reasonable and necessary in the circumstances”.
This test is different to the test in the workers compensation scheme which requires a worker to establish that the treatment is “reasonably necessary”. The Panel has not been taken to any judicial pronouncements in relation to the interpretation of the motor accident test but is aware of cases from the workers compensation scheme which will be mentioned later in these reasons.

Dispute resolution

Part 3.4 of the MAC Act provides for medical assessments including provisions relevant to an original medical assessment, further medical assessments (and the review of medical assessments by this Panel.
Applications for review of a medical assessment under s 63 of the MAC Act are made to the President of the Commission on grounds that the original assessment “was incorrect in a material respect” (sub-s (1)).
If the President, or his delegate is satisfied “there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect” then the President arranges for the application to be referred to a review panel consisting of a Member of the Commission and two Medical Assessors (sub-ss (2) and (2B).
The review is “a new assessment of all the matters with which the medical assessment is concerned” (sub-s 3A).
Rule 128 of the PIC Rules 2021 permits the Panel to determine its own proceedings and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.

ASSESSMENT UNDER REVIEW

Medical Assessor McGrath (the Medical Assessor) examined Mr Maamari on 6 February 2024, and issued a certificate under s 61 of the MAC Act.
Medical Assessor McGrath was referred the following injuries for assessment:
(a)    cervical spine – soft tissue;
(b)    lumbar spine – soft tissue;
(c)    thoracic spine – soft tissue injury;
(d)    right shoulder – soft tissue, labral tear, supraspinatus tendon tear;
(e)    left shoulder – soft tissue, labral re-tear, infraspinatus tear, cartilage damage, bursitis, pectoralis tear, frayed biceps, capsulitis, Hill-Sachs lesion, and
(f)    right knee – soft tissue, posttraumatic chondromalacia patellae.
The following treatment disputes were also referred by the Commission for assessment:
(a) whether the proposed arthroscopic labral repair surgery of the shoulder (right) is causally related to the injury sustained in the subject accident, and
(b) whether the proposed arthroscopic labral repair surgery of the shoulder (right) is reasonable and necessary in relation to the injury sustained in the subject accident.
The Medical Assessor took a pre-accident history at [8]. He noted that Mr Maamari had been involved in two prior motor vehicles. He also noted that Mr Maamari had undergone two shoulder surgeries and a right knee surgery.
The Medical Assessor took a history of the accident:
“Mr Maamari was involved in an MVA on 8 August 2016. He normally cycles to and from the gymnasium and on weekends a much longer ride. On this occasion, he was travelling to the gymnasium around 5.00pm or 6.00pm when the accident occurred. He was using high visibility clothing and lights on his bicycle when a car pulled out in front of him. In his attempt to avoid a collision, his right knee struck the front right wheelguard of the offending car. He was somersaulted partially over the bonnet before falling backwards onto the ground. Looking at pictures, his bicycle appears unscathed, and the car shows substantial panel damage. Most likely, as stated, his right knee struck the car. An ambulance attended and he was taken to hospital where he was kept for investigation.”
The Medical Assessor set out the results of the clinical examination at [14]:
“14. General presentation
All of the affected parts were examined.
Mr Maamari is a man of stated age and general athletic appearance consistent with his previous routines and gymnasium. He states that he has lost condition since his accident.
Cervical Spine
The cervical spine had a normal range of motion without any signs of muscle guarding or spasm. He did not have non-verifiable radicular complaints.
Neurological examination of the upper limbs was normal. That is, he had normal deep tendon reflexes, power and sensation. He did not have radiculopathy.
Thoracic Spine
Mr Maamari had a normal range of thoracic spinal movements without any signs of muscle spasm or guarding. He did not have non-verifiable radicular complaints or neurological symptoms pertaining to this region of the spine.
Neurological examination was normal.
Lumbar Spine
Mr Maamari had a normal range of lumbar spinal movements without any signs of muscle spasm or guarding. He did not have non-verifiable radicular complaints.
Neurological examination of the lower limbs was normal. That is, he had normal deep tendon reflexes, power and sensation.
Upper Extremity
The active range of motion of the shoulders was observed, measured by goniometer and tabulated below. It was consistent with repeat observations.
…
Lower Extremity
Both knees were carefully examined. Mr Maamari had a normal range of knee movements on both sides.
In the right knee, pain could be reproduced, with external rotation of the right lower limb with the knee flexed at 90°. There was some mild laxity of the lateral collateral ligament. He did not have kneecap tenderness or crepitations from the patellofemoral joint.”

The Medical Assessor considered causation at [20], he said:
“Mr Maamari was involved in a motor vehicle accident on 8 August 2016. The bicycle he was riding slammed into a car which had pulled out in front of him. From the pictures and his
statement, the impact with the car was taken through his right knee. Initial ambulance records suggest injuries to the right knee and left shoulder. In hospital, he received investigations for the left shoulder and a CT scan of the cervical spine. Over time, more investigations were ordered of the right knee and both shoulders.
He returned to the care of his surgeon, Dr Tan, who performed two further procedures on the left shoulder, the first being on 30 July 2018 and the second on 21 September 2020. He is now seeking surgery for the right shoulder.
With respect to right shoulder causation, it is clear from the records and also his statements that he had right shoulder difficulties prior to the accident. He was unable to recall an entry on 5 January 2015 when the right shoulder had popped. Mr Maamari states that his current shoulder instability with continuing popping sensations arose approximately one month after the current accident. He was receiving physiotherapy treatment at the time. There appears to be little imaging study evidence of a discreet right shoulder injury in the accident although over time his tendinopathy has increased. It is probable that this is just natural progression of his problem.
There is unequivocal support for a right knee injury. He had microfractures of the medial tibial plateau and bruising of the kneecap. This injury is superimposed upon a pre-MVA injury and surgery to the lateral meniscus. Clinically he has made a good recovery.
It is likely he sustained soft tissue injuries to the spine, but only the neck was investigated in hospital. He was receiving active care for the lumbar spine prior to the accident. There is no evidence for a thoracic spine injury.”
The Medical Assessor determined that the following injuries were caused by the accident:
(a)    cervical spine – soft tissue;
(b)    left shoulder – soft tissue, and
(c)    right knee – trabecular fractures.
He further concluded that the following injuries were not caused by the accident:
(a)    thoracic spine – soft tissue;
(b)    lumbar spine – soft tissue, and
(c)    right shoulder – soft tissue.
The Medical Assessor determined that the degree of permanent impairment caused by the accident was 6% WPI.
The Medical Assessor determined that the following treatment and care did not relate to the injuries caused by the accident, and were not reasonable or necessary:
(a) the proposed arthroscopic labral repair surgery of the shoulder (right).

SUBMISSIONS
Mr Maamari’s submissions, dated 16 March 2024

Failure to properly consider all relevant medical evidence

The summary of relevant documentation by Medical Assessor McGrath made reference to the clinical notes of Dr Zhang on 10 August 2016, but only referred to “right shoulder impingement positive and limited ROM”. There was no mention of Dr Zhang’s entry that Mr Maamari had complained of “popping and clicking on right shoulder”.
The summary did not reference the clinical notes of Dr Zhang on 15 August 2016 noting Mr Maamari’s complaint of “bilateral shoulder and knee pain”.
Medical Assessor McGrath made reference to the report of Dr David Samra dated 17 August 2016 (nine days after the subject accident), but only in reference to the right knee injury. Medical Assessor McGrath did not make any reference to the remainder of the report which focused on Mr Maamari’s injury to the right shoulder.
When determining causation of the right shoulder injury at point 20 of the certificate Medical Assessor McGrath stated, “there appears to be little imaging study evidence of a discreet right shoulder injury in the accident…”. This was fundamentally incorrect. There was MRI imaging dated 31 August 2016 which demonstrated a partial thickness tear which was 30% thickness.
There was no reference by the Medical Assessor to the report of A/Prof Tan dated 20 July 2017 in which he provided an opinion that Mr Maamari had suffered “a persistent labral tear since his accident on 8/8/16.”
Failure by Medical Assessor McGrath to consider the above medical records constituted material error as these records provided contemporaneous evidence of a new injury, or at the very least an exacerbation of injury, to the right shoulder caused by the subject motor accident.

Incorrect reading of medical evidence

At point 20 of the certificate, under the heading “Causation and reasons”, Medical Assessor McGrath provided the following finding in relation to the right shoulder:
“With respect to right shoulder causation… He was receiving physiotherapy treatment at the time. There appears to be little imaging study evidence of a discreet right shoulder injury in the accident although over time his tendinopathy has increased. It is probable that this is just natural progression of his problem.”
The Medical Assessor stated “He was receiving physiotherapy treatment at the time”. Mr Maamari was not receiving any physiotherapy treatment in relation to the right shoulder at the time of the accident. This was incorrect. Mr Maamari was receiving physiotherapy for his back. There was no record of any physiotherapy treatment to the right shoulder at the time of the accident.

Failure to provide adequate or sufficient reasons; failure to provide the actual path of reasoning as to how he arrived at the determination, and failure to properly consider causation of injury and/or provision of inadequate reasoning in respect to this issue

Mr Maamari referred to point 20 of the certificate, under the heading “causation and reasons” and submitted the findings were based on incorrect assumptions, including:
(a)    there were clinical records demonstrating complaints of popping sensations in the right shoulder as early as 10 August 2016, being two days after the subject accident, not one month after;
(b)    Mr Maamari was not receiving physiotherapy treatment to the right shoulder at the time of the subject accident, and
(c)    there were imaging studies demonstrating injury to the right shoulder on 31 August 2016.
The Medical Assessor provided no direct or sufficient reasoning as to why he determined the right shoulder injury was a natural progression of Mr Maamari’s problems.
Mr Maamari submitted there was insufficient reasoning and/or the reasoning was based upon incorrect assumptions as outlined at [23].
The Medical Assessor appeared to determine the surgery was not reasonable or necessary simply due to his earlier determination that it was not causally related to the subject accident. The Medical Assessor provided no reasoning as to the determination that the surgery would not be of substantial benefit to the claimant.

QBE’s submissions in reply, dated 4 April 2024

Alleged error: failure to properly consider all relevant medical evidence

QBE submitted that the Medical Assessor was not required to specifically comment on every aspect of Dr Zhang’s records. In this regard, the QBE relied upon the authority of Roger v De Gelder [2015] NSWCA 211 (Roger).
In Roger, the Court of Appeal determined that the statutory obligation of a medical assessor is to review the evidentiary material placed before him/her in order to determine the issue referred for their assessment. This statutory duty does not go so far as to impose a precise obligation to consider and discuss every piece of evidence placed before the medical assessor.
Reliance is also placed on the decision in Dunbar v Allianz Australia Insurance Limited [2015] NSWSC 119 (Dunbar), where the Supreme Court confirmed there is no requirement for a medical assessor to address every report. Having provided clear reasoning for their own decision, the assessor will have fulfilled their requirement of providing adequate reasons.
QBE submitted that the above authorities confirmed Medical Assessor McGrath was not required to reference or specifically discuss every aspect of the documents submitted by the parties within his certificate and that his decision should be viewed as a whole, rather than in a “minute” way. Such an obligation would be onerous and unreasonable, and indeed, the claimant has not pointed to any authority which would impose such a stringent obligation.
QBE noted that Medical Assessor McGrath did, in fact, refer to the records of Dr Zhang and he was otherwise aware of the information arising from the records which Mr Maamari asserted was overlooked. In this regard, QBE relied on the following aspects of the Medical Assessor’s certificate:
(a)    page 5 – “With respect to the right shoulder, he reports a popping sensation perhaps twice per week which is followed by right shoulder ache…”;
(b)    page 5 – “He indicated he had bilateral shoulder pain…”;
(c)    page 6 – the Medical Assessor provided his summary of the relevant documentation submitted for his review which included express references to the records of Dr Zhang, including the doctor’s clinical observations of the claimant’s right shoulder in August 2016, and
(d)    page 11 – “Mr Maamari states that his current shoulder instability with continuing popping sensations arose approximately one month after the current accident.”
QBE submitted it was clear from the above that Medical Assessor McGrath read and considered the evidence of Dr Zhang, and he was aware of the fact that the claimant described bilateral shoulder pain and a popping sensation in his right shoulder post-accident.
QBE submitted that Medical Assessor McGrath primarily relied upon the documented pre-existing pathology in Mr Maamari’s right shoulder coupled with the clinical entry in January 2015 of right shoulder pain and a “pop sound”, as well as the post-accident radiology and Mr Maamari’s report of his symptoms to conclude that any current symptoms in Mr Maamari’s right shoulder were/are an extension of his pre-existing condition.
The Medical Assessor’s conclusion would not have altered if he read that Dr Zhang documented popping or clicking in the claimant’s right shoulder in 2016, or that the claimant had bilateral shoulder and knee pain in 2016. To the contrary, Medical Assessor McGrath’s conclusion was based on his understanding that the claimant’s shoulder pain and clicking had indeed continued and worsened since 2015.
Had the Medical Assessor accepted the surgery was causally related to the subject accident, he still would have determined that it was not reasonable and necessary insofar as no evidence was presented in Dr Zhang’s early clinical notes (which the claimant asserts were overlooked) to establish that the surgery “would be of benefit over conservative care” as per Medical Assessor McGrath’s reasoning on page 13.
QBE submitted it was clear from the certificate that Medical Assessor McGrath read and considered the report of Dr Samra, even if he did not repeat or discuss every aspect of same in his certificate.
The Medical Assessor’s conclusion would not have altered if he read that Dr Samra observed pain in the claimant’s right shoulder, found a positive response to a labral shear test, and suspected the presence of a labral tear in August 2016. Medical Assessor McGrath confirmed the claimant had a pre-existing tendon tear which had progressed over time with a concurrent increase in his instability.
QBE noted that Medical Assessor McGrath, whilst not expressly referring to the reports of 15 September 2016 and 20 July 2017, did expressly refer to other evidence from A/Prof Tan, thereby confirming he had received and read the A/Prof’s evidence.
Furthermore, QBE submitted that it was entirely appropriate (if not more appropriate) for Medical Assessor McGrath to refer to the imaging scans themselves, rather than A/Prof Tan’s commentary on same. Likewise, it was open to the Medical Assessor to rely on Mr Maamari’s recount of the accident circumstances during his own assessment, rather than the hearsay evidence contained within A/Prof Tan’s report in this regard.
Medical Assessor McGrath primarily relied upon the pre-existing pathology in Mr Maamari’s right shoulder coupled with the clinical entry in January 2015 of right shoulder pain and a “pop sound”, as well as the post-accident radiology and the claimant’s report of his symptoms to conclude that any current symptoms in the claimant’s right shoulder were/are an extension of his pre-existing condition.
The Medical Assessor’s conclusion would not have altered if he read that A/Prof Tan interpreted Mr Maamari’s report of the accident to involve a subluxation of his right shoulder, or that the A/Prof had observed the August 2016 MRI scan, or that the A/Prof believed the claimant had torn his labrum.
The Medical Assessor’s reasons demonstrated that he was aware of the relevant issues raised by the evidence the subject of the claimant’s application, including that Mr Maamari’s pre-existing right shoulder tendon tear had worsened post-accident. Indeed, this was, in part, the basis of the Medical Assessor’s causation determination.
Mr Maamari’s assertion that progression of his pre-existing tendon tear demonstrated a new injury or at least an exacerbation of a pre-existing injury is, with respect, not correct. As aptly explained by Medical Assessor McGrath in his certificate, the change in pathology shown in the claimant’s radiological scans was consistent with the natural progression of his pre-existing condition

Alleged error: incorrect reading of medical evidence

QBE submitted that Mr Maamari had misread or misunderstood the Medical Assessor’s comments, and when read in context, it is clear the Medical Assessor was referring to physiotherapy provided to the claimant one month after the accident when he alleged his ‘popping’ symptoms emerged.

Alleged errors: failure to provide adequate or sufficient reasons; failure to provide the actual path of reasoning as to how he arrived at the determination; and failure to properly consider causation of injury and/or provision of inadequate reasoning in respect to this issue

QBE submitted that Medical Assessor McGrath was clearly aware Mr Maamari’s popping sensations in his right shoulder continued post-accident, he received physiotherapy a month after the accident, and the imaging undertaken in August 2016 showed progression of a pre-existing tendon tear
QBE could not see what more should have been, or could have been, said by the Medical Assessor in respect of his causation finding.
Medical Assessor McGrath provided two distinct reasons for his determination as to the reasonableness of, and need for, the surgery in the context of the accident, as follows:
(a) any need for right shoulder surgery was not caused by the subject accident, and
(b) it was not clear that the surgery would be of substantial benefit over conservative care.

MEDICAL EVIDENCE

General practitioner (GP) clinical notes

29 November 2013 – Mr Maamari’s GP wrote that he had chronic right shoulder pain. He was seeing a physiotherapist and was having massage but was not improving. There was a background of right shoulder supraspinatus tendon injury and surgery four years ago. He was to take analgesics, to exercise and to see A/Prof Tan.
5 January 2014 – the GP wrote that he had a left shoulder injury and pain. He was referred to an orthopaedic specialist.
23 January 2014 – his GP wrote that he had a left shoulder injury and was to have an ultrasound.
6 May 2014 – the GP wrote that he had left knee pain after an injury in January. He was seen by A/Prof Tan, orthopaedic surgeon, and might have a meniscal tear. He was to have an MRI scan.
5 January 2015 – his GP wrote that he had right shoulder pain while weightlifting. He was to have further investigations.
7 January 2015 – the GP wrote that he had right shoulder tendinosis and bursitis, and partial tear in the deltoid muscle.
19 March 2015 – his GP wrote that he had a recent car accident, and his left shoulder pain was getting worse.
20 May 2015 – the GP wrote that he had a left knee anterior cruciate ligament injury. He was to have a left knee ultrasound and platelet-rich plasma (PRP) injection.
31 May 2015 – his GP wrote that he had right shoulder tendonitis and bursitis and was to have an ultrasound and PRP injection.
13 March 2016 – rhe GP wrote that he had bilateral shoulder pain and was to have a PRP injection
18 July 2016 – his GP wrote that he had left shoulder pain and he wanted to have a PRP injection.
On 9 August 2016, Dr Moulden reported:
“29yo male presents post bicycle accident
HOPC
riding bicycle
approx 40-50km/h downhill
wearing helmet
t-boned front corner of car doing u-tum
knee hit side of car, landed on bonnet with arms stretched forwards
did not hit head
nil LOC
CDA attended
GCS 15 throughout
ambulated with assistance, favouring left leg
nil headache/nausea
Pain:
- c/o left sided neck pain radiating towards left shoulder
- right and left anterior shoulder pain, L>R
- right knee pain
BG
L shoulder labral tear
…
Exam
looks well
does not look distressed
…
shoulders:
left anterior proximal humerus tenderness, mild moderate
normal ROM, mild tenderness
right anterior proximal humerus tenderness, mild, less than left
normal ROM
clavicles non- tender”

Ambulance report, 8 August 2016

The ambulance report indicated that he had an injury in his right knee. He was sitting on the side of the road and said that he went over his handlebars. He landed on the bonnet of the car before falling off. There was no loss of consciousness. He was assisted off the road by the bystanders. He was wearing a helmet. He had a right knee and left shoulder abrasion and swelling on his right knee. His Glasgow Coma Scale score was 15, normal.

Westmead Hospital

Records from the emergency department at Westmead Hospital indicated that he was riding his bicycle at about 40 to 50 kilometres per hour downhill and he was wearing a helmet, when he T-boned the front corner of a car doing a U-turn. He hit his knee and landed on the bonnet with arms stretched forward.
There was no loss of consciousness. His Glasgow Coma Scale score was 15, normal. He was complaining of left-sided neck pain radiating to his left shoulder. He had bilateral shoulder pain and right knee pain. He looked well. He did not look distressed. There was no evidence of fracture on radiological investigations, and he was considered suitable for discharge. He was to take analgesics.
X-Ray to the right knee. “L sided pain radiating into shoulder ...” and "C5-6 tenderness with L paraspinal tenderness". X-ray of the left shoulder, and CT scan of the cervical spine. It was recorded that the claimant complained of left sided neck pain toward the right shoulder, right and left anterior shoulder pain, greater on the left. Further he reported right knee pain. A pre-existing left shoulder labral tear was noted.

State Insurance Regulatory Authority (SIRA) form

On 29 May 2017, Mr Maamari reported the suffered the following injury as a result of the accident:
“Large rotator cuff teat
Moderate scapula dyskinesis”

A/ Professor Simon Tan, orthopaedic surgeon

A/Prof Tan provided the following report on 20 June 2017:
“As you are aware, his problems date back to his accident on 8/8/16. Whilst he was aware of some rotator cuff irritation around tl1e right shoulder, there were no superior labral signs and he had returned to his heavy loading and exercise training prior to this accident.
As he was knocked from his bicycle, he was forced into a 'superman' position which will hyperextend or stress the humeral head over the superior labrum. Since that time, he has been able to resolve some issues with your assistance (bursitis and cuff pain) and the PRP. Unfortunately, his superior labral pain has persisted.
He has a positive Speed sign, O'Brien's sign and apprehension.
We have discussed his MRI under James Linklater and his stable rotator cuff. We have again discussed the relatively poor ability of MR scans to pick up labral tears. Co1mnunity MRI is as low as 70% sensitivity and in Dr James Linklater's hands probably would increase to the order over 90%. This means there is a certain percentage of labral tears which will not be seen on an MR scan for a number of reasons.
To this end, increasing studies have been written to assist in the clinical suspicion of labral tears, on which we should base our treatment plan. A landmark study by Oh in the American Journal of Sports Medicine has demonstrated an accuracy of diagnosis of over 95% witl1 positive signs as seen in Elias's shoulder today.
Accordingly, I believe he has a persistent labral tear since his accident on 8/8/16. He has rested and altered his rehabilitation and in spite of your treatment, still has persistent signs inhibiting Ins return to training. Accordingly, I believe he should consider a repair.”

Report of Dr Seamus Dalton, consultant physician in rehabilitation medicine, dated 18 October 2021

Dr Dalton made the following review in his report of 18 October 2021:
“I have already referred to the Discharge Summary from Westmead Hospital which indicates that he likely suffered soft tissue injuries to his left cervical region, right knee and he was reporting some pain and tenderness at both shoulders.
I have also viewed the NSW Ambulance report which confirms that he was found sitting at the scene complaining of pain in the right knee and left shoulder. He was noted to have suffered an abrasion and minor swelling of the right knee with no obvious deformity and was not complaining of any neck pain on midline palpation. There is no reference to right shoulder pain at that time.
I have also noted the medical records related to a previous motor vehicle accident on 26 October 2012 in which the plaintiff sustained a soft tissue injury and muscular strain to his right chest and abdomen after which he saw a chiropractor.
There are also clinical records pertaining to a subsequent motor vehicle accident on 23 February 2015 in which Mr Maamari suffered a whiplash injury to his neck, shoulder and back with subsequent investigation revealing an L5/S1 disc prolapse. It appears that he was referred for physiotherapy, massage therapy and was also seeing a chiropractor and there is reference to previous shoulder pain.
The clinical records of Dr Colwell confirm that following that MVA he was complaining of neck pain, lower back pain and pins and needles in the left arm but on 6 March 2015 Dr Lim reported that he had tenderness over both shoulders, more so the right, and had been referred to A/Prof Simon Tan, orthopaedic surgeon. Records show that he had undergone a CT scan of the cervical spine and lumbar spine with the latter revealing a generalised disc bulge at the L5/S1 level and Dr Lim refers to a possible SLAP tear at the right shoulder. In recording his past history there is reference to a subscapularis tear of the left shoulder in 2014.
I have also viewed the clinical records of Main Street Family Medical Centre in Blacktown which date back to an initial consultation on 10 April 2011. At that time it was noted that the plaintiff had undergone an arthroscopic rotator cuff repair of his left shoulder on 9 November 2010 performed by Prof George Murrell and was presenting with ongoing shoulder pain and limited ROM and had been having ongoing physiotherapy and rehabilitation.
He was then seen by Dr Zhang regarding right shoulder pain on 29 November 2013 after which some ultrasound treatment was applied and he was then referred to A/Prof Simon Tan who on 29 November 2013 records his history of chronic right shoulder pain. There is reference to a previous right shoulder supraspinatus tendon injury and operation four years earlier and confirmation that he was referred to A/Prof Tan. Subsequently there are references to left shoulder pain for which ultrasound treatment was provided and on 5 January 2014 the plaintiff presented with left shoulder pain and at that time was referred to Dr Kinzel, another orthopaedic surgeon.
There are numerous references to the plaintiff’s ongoing shoulder complaints and on 6 May 2014 there is reference to left knee pain after which he was referred for an MRI scan. It was noted that he had been seen by A/Prof Tan. On 5 January 2015 Dr Zhang noted that the plaintiff was complaining of right shoulder pain whilst doing weight training and had heard a popping sound and he had a positive impingement sign and was referred for further x-rays and an ultrasound of the right shoulder. It appears that he subsequently underwent an ultrasound-guided PRP injection to the right shoulder and was then seen by Dr Zhang on 19 March 2015 when he reported that his left shoulder pain had worsened after a recent MVA and he was referred for an ultrasound of the left shoulder at that time.
There are further references to the injury to his left knee and I note that he had an ultrasound guided PRP injection to the left knee. On 31 May 2015 Dr Zhang refers to a diagnosis of right shoulder tendonitis and bursitis which is also mentioned at a number of subsequent consultations in July, October and November 2015 and on 10 January 2016 Dr Zhang confirmed that the plaintiff had undergone an ultrasound-guided PRP injection to the right shoulder performed by Dr Kaushik.”
Dr Dalton came to the following diagnosis and summary:
“Clearly Mr Maamari has had a long history of bilateral shoulder pain, more particularly at his left shoulder where he had undergone a previous rotator cuff repair in 2011. He still had some residual symptoms in his left shoulder and consulted A/Prof Tan who then undertook further surgery in the form of a labral and Bankart repair in 2014 The GP records clearly show that Mr Maamari continued to present with both left and at times right shoulder pain and was requesting biological treatment in the form of ultrasound guided PRP injections which were administered on several occasions. Records also confirm that MR imaging of the right shoulder revealed a partial thickness tear of the supraspinatus which had increased slightly in size at the time of his subsequent imaging post-MVA.
The mechanism of injury described to me by the plaintiff was that at the time of the accident he was thrown across the bonnet of the car with his arms in an elevated position and he described a whiplash effect causing stretching to both shoulders. I note that at the scene he was reporting pain in the left shoulder but by the time he presented to hospital he had some bilateral shoulder tenderness but had full range of motion and he subsequently reported to his GP that both shoulders were sore.
Given his previous history whereby he had undergone previous surgery to his left shoulder on two occasions and had undergone PRP injections to both shoulders, it is not surprising that both shoulders would have been rendered symptomatic by any traumatic injury sustained at that time. Having regard to the nature of his symptoms and clinical presentation, both at the time of his initial assessment and subsequently, and also having regard to the results of subsequent imaging, my assessment is that Mr Maamari most likely suffered soft tissue strains to both shoulders best described as a stretching or traction injury but without any frank dislocation or subluxation. It is reasonable that such an injury could have aggravated any pre-existing pathology but on the balance of probabilities I think it is unlikely that the pathology subsequently identified at surgery was the result of that incident. It is just a matter of the extent to which the injury in question caused aggravation of the pre-existing pathology, which is complicated by the fact that his symptoms were bilateral and there is quite some variability in the reports as to whether his left or right shoulder was more symptomatic. I therefore consider that Mr Maamari likely suffered soft tissue strain type injuries to both shoulders as a result of the accident on 8 August 2016.”
MRI right knee, dated 1 September 2013: recent microtrabecular injury antero-medial border medial tibial plateau and mid to posterior weight bearing aspect medial femoral condyle adjacent to the medial joint line, without fracture. No evidence of recent meniscal tear. Attenuated lateral meniscus, presumably reflecting either the sequelae of partial meniscectomy or remote tear. No unstable fragment. Suspected minor chondromalacic change central aspect lateral tibial plateau, with early osteophytic lipping at the lateral femoro-tibial compartment. Chondral softening medial. patellar facet, without surface defect.
MRI arthrogram right shoulder, dated 31 August 2016: no capsulo-labral disruption is evident. Relatively thin, patulous axillary pouch capsule, potentially predisposing to multidirectional laxity. Fifteen degrees glenoid retroversion. Suspected mild chondromalacic change posterior glenoid rim, with softening and suspected minor superficial chondral scuffing. No hypertrophy of the posterior labrum or paralabral cyst. Small intrasubstance partial thickness tear postero-distal supraspinatus tendon (3mm anterior-to-posterior (AP), 30 percent tendon thickness), marginally more extensive when compared to the previous MRI of 9 March 2015. Minor AC joint arthrosis.
30 July 2018 – 3rd left shoulder arthroscopic debridement and revision of rotator cuff and labral repair surgery.
10 October 2018 – MRI of the right knee showed "minor smooth superficial chondral wear posterior weight bearing aspect lateral femoral condyle. Chandra/ softening medial patellar facet, without surface defect. Small amount of fluid in the knee."
18 April 2019 – Ultrasound and MRI report of the left pectoralis, in which Dr Fung notes the following: ''There is subtle area of increased fat signal in the muscle/tendon junction involving the sternal components noted inferomedial when compared to the contra lateral normal side. This spans a region of approximately 1. 8cm transverse and 1 cm superior to inferior''. "The patient also reports some discomfort along the medial upper arm, in the region of the median nerve and in the area of the coracobrachialis and short head of the biceps". "There is a local region of fatty atrophy and likely old muscle tear in the left pectoralis major muscle/tendon junction involving the sternal muscle fibres"
21 September 2020 – 4th left shoulder arthroscopy and open biceps tenodesis surgery.

Letter from Moray & Agnew, dated 6 June 2022

Mr Maamari’s solicitor wrote the following on 6 June 2022:
“Our client relies on the opinion of Dr Dalton in his report dated 18 October 2021.
Dr Dalton reported that A/Prof Tan was aware of the claimant's prior history of right shoulder problems which were clearly documented in GP records. However, A/Prof Tan was under the impression that the claimant's right shoulder was asymptomatic prior to the accident. Further, there is confirmation of a pre-existing intrasubstance and partial thickness tear of the right supraspinatus with MRI imaging reportedly showing a marginal increase in the tear when compared to previous imaging. The claimant had also undergone a range of treatments including ultrasound-guided PRP injections.
Dr Dalton opined that given the time between the scans, the pathology evident was consistent with the natural history of rotator cuff tendinopathy and partial thickness tears. Further, there was no radiological evidence of an acute labral tear or any other intra-articular derangement resulting from which was deemed to have been a stretching injury to the right shoulder.
On the balance of probabilities, Dr Dalton opined that the treatment subsequently directed to the claimant's right supraspinatus tendon tear was not reasonably required as a result of the soft tissue strain sustained in the subject accident. Dr Dalton reported that it given the claimant's past history, it was more likely than not that the claimant's shoulder pain would have continued regardless of the accident.
As such, Dr Dalton did not consider the proposed surgery to the claimant's right shoulder to be reasonably required as a result of the injuries sustained in the subject accident.”

Dr David Samra, Sports and Exercise Medicine Registrar

On 21 April 2017, Dr Samra wrote the following report:
“Elias has had significant improvements of cuff strength/ control in the right shoulder, although he continues to have intermittent pain with radiation down the anterolateral aspect of the shoulder.
His had a course of PRP injections which initially helped with his pain. His level of function is gradually improving, and he has been off weights over the last 2 to 3 months.
On examination, today he has excellent strength of his internal rotators bilaterally, with only a mild deficit of external rotation on the right-hand side. He is able to achieve 11 kg versus 12.5 kg of external rotation strength. This is a marked improvement functionally, despite his MRI imaging showing no major change in the size of the cuff tear in supraspinatus (30% diameter).
I performed a dynamic point-of-care ultrasound to explain that there is no subscapularis tear and it is likely that sonographic artefact was responsible for detecting a tear there. This is also supported by 3Tesla MRI reported by Dr Linklater. Instead, I believe that he has a component of postural subcoracoid impingement, in combination with subacromial impingement. I explained to Elias that these two bony arches around the shoulder are commonly problematic in those affected by weightlifter’s posture.
Going forward, Elias needs to continue to re-educate his rotator cuff and periscapular muscles and builds slowly in his strength progression from the core outwards. Mild pain should be expected and certainly tolerable as he gradually improves the strength, control and endurance of these muscles.
As for his right knee, there is no evidence of instability, patellofemoral maltrucking or mechanical symptoms. I watched him squat and there is good alignment of both patellae. I believe he needs to commence some aerobic training on his bike again, possibly with the use of rollers (safely at home) to ensure he is able to do this with low resistance starting with 15 minutes at the Going forward, Elias has a range of options available to him without utilising any further injections, including natural anti-inflammatories curcumin, fish oil and even green tea. He did not like the idea of a corticosteroid injection around inflamed areas of impingement, which is fine. The most important thing will be developing the neuromotor control he needs around the shoulder girdle to prevent the impingement in the first place, considering there is no strong evidence for bony overgrowth of either the acromion or coracoid bones.
Optimal loading of his rotator cuff is highly likely to result in full rehabilitation over the next 3 to 6 months, but he should definitely maintain a 24-hour pain diary as he is returning gradually to weights training in the future to identify aggravating exercises.”

THE PANEL

At the first Medical Review Panel (MRP) meeting, the Panel resolved that an examination would be necessary in order to address the parties’ submissions.
Medical Assessor Stubbs conducted an examination (on behalf of the Panel) on 9 July 2024.

Pre-accident history

Mr Marius was 38-years-old. He came to Australia in 1986. He completed his education in Australia and had a civil engineering degree and a builder’s license.
He now works as a full-time project manager for his own company. He is married with three daughters.
He played rugby league at high school as a second row of but did not recall any significant injuries to his upper limbs. He always liked to keep fit and had been a regular gymnasium member doing a mixture of cardiovascular and resistance exercises. He cycled for exercise and was cycling to his local gymnasium when he suffered the motor vehicle accident.
There were two prior motor vehicle accidents; one in approximately 2010, and the other in approximately 2013.
He pursued third-party claims, and both settled without ongoing problems.

History of the accident

The accident occurred when he crested a hill and was cycling downhill at about 40kmph. A car turned from his right across his path which led to an impact with the vehicle on the right front. He was thrown forward his outstretched hands then off the front of the car and on to the pavement. The bicycle was written off. He spent some time on the ground as a congested traffic drove around him, he was eventually assisted off the road and taken by ambulance to the Westmead Hospital where was admitted for overnight observation.
He returned home the following morning and went to see his GP. The GP referred him to Simon Tan, orthopaedic surgeon, with injuries to both shoulders. His initial complaint included neck pain and stiffness, injuries to both shoulder and stiffness and swelling to the right knee. The injuries were investigated, and he underwent surgery to the left shoulder for a superior label detachment in 2018, on the basis of recurrent pain and weakness in use and a clicking sensation.
The initial arthroscopic surgery to the left shoulder produced little improvement and was followed by an arthroscopic tenodesis of the long head of the biceps tendon in 2020, which had resulted in some improvement. He could live with the left shoulder as it was.
He has had similar but less severe symptoms in the right shoulder throughout the same time. Surgery for a superior label detachment had been suggested for this shoulder also but the insurer had declined responsibility. This was based on a period between 2015-2016 when he sought treatment for impingement type pain, weakness and some instability in the right shoulder. He was sent for some plasma rich protein injections with some improvement.
The right shoulder was investigated by a number of investigations including ultrasound and possibly MRI. Mr Maamari reported that his solicitors had the investigations. He felt the right shoulder problem had largely resolved at the time of the motor vehicle accident but since the accident there was a popping sensation experienced and mid arc residual soreness required anti-inflammatory agents. Oral nonsteroidal anti-inflammatory drugs (NSAIA) caused gastric discomfort and he used Voltaren Gel. The right knee caused some discomfort from time to time.

The examination

Mr Maamari attended alone and travelled to the Commission by car.
He stood 175cm tall and weighed 84kg. He was helpful and cooperative in the clinical examination. He could tip toe walk, hop on either leg, perform single leg stance and squat to 110° without discomfort.
He could rise from a chair without assistance and climbed on and off the examination table without help.

Cervical spine

He had a normal standing posture and symmetrical movement to ¾ range in both flexion and extension, side bending and rotation. Showed normal upper limb reflexes and 5/5 power when tested with the elbows by the side. Girth of the upper limbs was 36cm in the arms, 31cm in the right forearm, 30cm in the non-dominant left forearm. Reflexes were brisk and symmetrical. There was no sensory disturbance, and traction and compression signs were normal.

Upper limbs

The range of shoulder movement recorded was given in the table below. There was positive impingement signs, and inconsistent popping sensation coming from the right shoulder. O’Brien sign was positive, forced extension of the left elbow causes discomfort in the right shoulder. Same test on the left was negative but there was a rigid residual tenderness at the site where the tenodesis was performed in the upper humerus. Apprehension tests were negative. In contradistinction to the good development of the distal musculature of the arm the shoulder girdle on both sides was less bulky than expected, and add abduction mid arc was weak, right equals left. Clinically there was evidence of problems with the long head of the biceps tendon at its anchorage into the superior labrum at the bicipital tubercle. The rest of the upper limb joints were entirely normal.

Right

left

Flexion average of three movements

110°= 5% UEI

140°= 3% UEI

Extension

40°= 1% UEI

50°= 0% UEI

Abduction

140°= 2% UEI

140°= 2% UEI

Internal rotation

60°= 2% UEI

60°= 2% UEI

External rotation 60°

60°= 0% UEI

60°= 0% UEI

Adduction

30°= 1% UEI

30°= 1% UEI

.Thoracic and lumbar spine

Normal range of movement for age. Girth the lower limbs was 51cm in the thigh and 39cm in the calf. Reflexes were brisk and symmetrical. Sensation was normal and there was no asymmetry or guarding.

Lower limbs

Right knee – positive Tietz’s test from the medial compartment of the right knee. McMurray sign was negative. There was some retro patella tenderness but no crepitus. There was no effusion. Range of motion was full.
The rest of the lower limb examination is normal.

Imaging studies

The Panel noted that injuries to the superior labrum are common. They are due to eccentric contraction of the biceps muscle. The tendon of long head of the biceps muscle anchors to the superior glenoid labrum at the 12 o’clock position. The long and short head of biceps muscle are primarily flexes of the elbow but as both across the shoulder joint, they are secondary flexes of the shoulder.
In both the shoulders and elbow there is a problem with sudden eccentric contraction when the muscle-tendon unit is forced to stretch when actively contracting. In the shoulder, the damage detachment the long head of the biceps from its anchorage into the bicipital tubercle and superior glenoid labrum. It is a common sporting injury; the typical mechanism is a fall on the outstretched hand and both shoulders may suffer similar mechanical strains. The cycling accident that Mr Maamari described was a very plausible mechanism of injury. Superior label detachment therefore caused weakness and apprehension with some movements plus or minus a clickable clunking sensation.
There was a history of problems with the right shoulder that predated this accident. It’s quite possible that there may be some label detachment at this time. This could date to his rugby league days, plus or minus aggravation from resistance training in the gymnasium. There was no history of prior left shoulder problems and no controversy about whether there was a causal relationship to the left superior label/long head of biceps detachment nought the reasonable and necessary of the treatment.
The first operation, essentially to reattach the long head of biceps and superior labrum was unsuccessful. The fallback option of the tenodesis, the long head of the biceps into the upper humerus had been at least partially successful. There was every reason to think that similar treatment assists the right shoulder. Whilst there may be issues of whether the initiating event in the right shoulder predated the accident it is very likely that the accident materially contributed to the aggravation of the problem. A/Prof Tan, the treating orthopaedic surgeon, pre and post-accident noted that Mr Maamari had pre-existing problems with his right shoulder but considered that they there were minor causing very little impact on his life. He noted that he was able to carry heavy loads and train prior to the accident. Following the accident he has had persistent shoulder problems with increased pain and functional deficit.
MRI of the right shoulder dated 3 March 2015 recorded a small intrasubstance partial-thickness tear of the posterior insertional fibres of the supraspinatus tendon involving 10% of the tendon thickness. A repeat MRI of the right shoulder dated 1 September 2016 reported the same supraspinatus tendon tear was now 30% tendon thickness. The Panel considers that given the impact of the accident to both shoulders that it was very likely that there had been an increase in this tear due to the accident with a subsequent increase in pathology.
There was some residual impairment of both shoulders. This could be calculated now. The most appropriate way would be range of motion. For the right shoulder there is a total of 11% UEI (upper extremity impairment) which converts to 7% WPI using table 3 of AMA 4. For the left shoulder, there is a total of 8% UEI which converts to 5% WPI.
Cervical, thoracic and lumbar spines are all diagnosis related estimate (DRE) 1, 0% WPI and for practical purposes resolved.
There was evidence of injury to the right knee that the clinical findings suggested medial meniscal injury rather than post traumatic chondromalacia patella. Medical Assessor McGrath determined the right knee injury, namely, trabecular fractures to be causally related to the accident. The Panel considered on examination that the more likely injury was medial meniscal injury rather than post traumatic chondromalacia patella. The Panel’s reasons for this were that there was no crepitus on passive movement but some retropatellar tenderness on palpation. A positive Tietz’s test from the medial compartment with a full range of movement. However, in considering Table 64 of AMA 4 the only WPI is for a partial menisectomy which didn’t occur. Therefore, the diagnosis is soft tissue injury but 0% WPI.

Determination

The Panel revokes the certificate of Medical Assessor McGrath dated 18 February 2024 and substitutes the determination to certify that the following injuries caused by the motor accident gave rise to a WPI of 12%:
(a) right knee, and
(b) left and right shoulders.
The Panel further certifies that the following treatment:
(a) arthroscopic labral repair surgery of the right shoulder
was caused by the accident and is reasonable and necessary.

Right	left
Flexion average of three movements	110°= 5% UEI	140°= 3% UEI
Extension	40°= 1% UEI	50°= 0% UEI
Abduction	140°= 2% UEI	140°= 2% UEI
Internal rotation	60°= 2% UEI	60°= 2% UEI
External rotation 60°	60°= 0% UEI	60°= 0% UEI
Adduction	30°= 1% UEI	30°= 1% UEI

[2024] NSWPICMP 633

6 September 2024