McGrath v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	McGrath v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 558
CLAIMANT:	Rachelle McGrath
INSURER:	Insurance Australia Limited t/as NRMA Insurance
REVIEW PANEL
MEMBER:	Terence Stern OAM
MEDICAL ASSESSOR:	Sophia Lahz
MEDICAL ASSESSOR:	Margaret Gibson
DATE OF DECISION:	30 July 2025
DATE OF AMENDMENT:	7 August 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); claimant was injured in a motor vehicle accident; Medical Assessor (MA) certified that the claimant’s injury was a threshold injury; a medical dispute arose as to whether the physical injury sustained was a threshold injury; claimant sought a review of the MAC under section 7.26; Review Panel conducted an examination and considered the factors contributing to the injury according to clause 6.6 of the Motor Accidents Guidelines; Held – MAC revoked; Review Panel determined that the injury to the claimant’s left shoulder was a non-threshold injury.
DETERMINATIONS MADE:	AMENDED CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the determination of Medical Assessor Alexander Woo of 24 February 2025 that the cervical spine injury was a threshold injury for the purposes of the Act and in lieu certifies that it is a non-threshold injury for the purposes of the Act.

STATEMENT OF REASONS
INTRODUCTION

The claimant, Rachelle McGrath (Ms McGrath), was injured in a motor vehicle accident on 9 August 2023 (the accident).
Insurance Australia Limited ABN 11 000 016 722 trading as NRMA Insurance (NRMA) was the compulsory third party insurer.
Under the provision of the Motor Accident Injuries Act 2017 (MAI Act) now in force, the statutory benefits for treatment and care cease after 52 weeks if the person’s only injuries resulting from the motor accident were threshold injuries.
Ms McGrath submitted her Application for Personal Injury Benefits (APIB) on
11 August 2023.

Threshold injury dispute

NRMA determined that Ms McGrath had sustained a threshold injury and the liability for payment of statutory benefits was limited accordingly.
Ms McGrath filed an application in the Personal Injury Commission (Commission).
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matters, including whether the injury caused by the motor accident was a threshold injury.
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”.
A threshold injury was defined in s 1.6 of the MAI Act and includes a “soft tissue injury”. 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:
1.The alleged factor could have caused or contributed to worsening of the impairment, which was a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which was a non-medical determination.”
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7    There was no simple common test of causation that was applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it was a contributing cause, which was more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this was not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes’.”

ASSESSMENT UNDER REVIEW

Medical Assessor Woo examined Ms McGrath on 21 February 2025 and issued his certificate on 24 February 2025. The Panel summarises the certificate as follows.
The injuries referred for assessment by Medical Assessor Alexander Woo (the Medical Assessor) in respect of the dispute as to threshold injury were:
·cervical spine – radiculopathy;
·lumbar spine – nerve root injury and radiculopathy, and
·left shoulder – tendon tear.
At [3], Medical Assessor Woo noted the submissions of the parties.
At [5]-[6] of his certificate, Medical Assessor Woo stated that he considered the documents provided in the application and reply, and the late documents being the clinical notes of
Dr Martin Scholsem and clinical notes of Healthmarq.
Medical Assessor Woo then took a pre-accident history at [8], including notably:
·        used to work as a gym instructor part-time;
·        injured her back whilst lifting when she was 35 years old, sustaining injury to the L5/S1 disc with back pain and left sciatica;
·        underwent anterior spinal fusion at L5/S1;
·        had full recovery after surgery;
·        left shoulder injury from doing a push-up in the gym;
·        ultrasound of the left shoulder on 23 March 2022 which revealed a partial-thickness supraspinatus tear;
·        prior to the accident, had a flare-up of low back pain, and
·        had a CT-guided nerve block to the left L5 nerve root on 19 July 2023 with improvement of symptoms.
At [9] of his certificate, Medical Assessor Woo took a history of the accident noting that it was a four-car accident. Airbags did not deploy, Ms McGrath self-extricated and the tow truck driver took her home. Ambulance did not attend the scene.
Medical Assessor Woo then at [10] recorded the history of symptoms and treatment and noted that following the accident, the general practitioner, Dr Mark Dixon recorded on
10 August 2023:
“MVA lower back pain and L shoulder pain whiplash”
Notwithstanding physiotherapy, Ms McGrath’s left arm pain persisted and she developed numbness; Dr Dixon referred her for MRI of the cervical spine on 14 February 2024 and she received a nerve block to the left C6 nerve root. Dr Scholsem reviewed Ms McGrath on
14 June 2024 and advised cervical nerve root decompression surgery at C5/6.
At [12] of his certificate, Medical Assessor Woo noted current symptoms, namely constant neck pain and shooting pain down the left arm. The pain is described as an “ache” at 4.5/10 (0 no pain and 10 most severe pain).
Medical Assessor Woo at [13] set out the current and proposed treatment of Ms McGrath, noting that she takes Celebrex; she stopped taking Feldene; she has physiotherapy every two weeks and received a massage and practises the exercises recommended by her treating physiotherapist; she goes to the gym two to three times per week and runs daily; she decided to not proceed with surgery at the time of assessment; and she had an appointment with Dr Scholsem in April 2025 to discuss the options of further treatment of her neck symptoms.
At [14]-[15], Medical Assessor Woo set out the results of his clinical examination which the Panel reproduces below:
“[14] Ms McGrath is left hand dominant. She is 166cm in height and weighs 58kg. She has a normal gait.
Cervical spine
There was slight tenderness at the base of the neck on the left side. There was no guarding. Range of movement was normal in all direction with slight discomfort on the left side. Nerve root irritation signs were negative. There were non-verifiable radicular symptoms.
Neurological examination of both upper limbs
Tendon reflexes were normal and symmetrical. There was decreased sensation to touch in the whole left upper limb and more pronounced on the ulnar aspect including the ulnar two fingers of the left hand. The left thumb and index finger had normal sensation. The sensation loss correlates to the C7 and C8 nerve root distribution and not consistent with the C5/6 level, which was requested for surgery by Dr Scholsem. There was no weakness and no atrophy. The left upper arm is 0.5cm bigger than the right. The left forearm was 0.5cm bigger than the right. This is in keeping with her left hand dominance and her regular exercises.
Lumbar spine
There was no tenderness, spasm or guarding in the lumbar spine. Back movement was normal. She could bend and reach her toes. Straight leg raising was 100° on both sides. Sciatica nerve root tension signs were negative.
Neurological examination of both lower limbs
Tendon reflexes were normal and symmetrical. There was normal sensation and motor power in both lower limbs. There was no weakness and no atrophy.
Upper Extremity
There was no tenderness over both shoulder regions. Range of movement was normal and symmetrical on both sides.
[15] I did not notice any inconsistencies during the assessment. She expressed uncertainty about the recommended surgery for her neck injury and worried that she may ultimately require surgical treatment. She has decided not to proceed with surgery at this time. She is coping with her pre-injury duties and returned to her active activities except boxing following the recent nerve block. She will discuss with Dr Scholsem about the options for further treatment.”
Medical Assessor Woo summarised the relevant documentation at [16], noting the neurophysiological studies of Dr Roshan Dhanapalaratnam of 14 March 2024, which reported carpal tunnel syndrome symptoms during pregnancy and that findings are consistent with bilateral carpal tunnel syndrome of mild electrophysiological evidence of proximal nerve dysfunction/C6 nerve root dysfunction.
Medical Assessor Woo provided a summary of the diagnostic information at [17], including:
“The following radiological and medical imaging was brought to the assessment:
Prior to the subject accident
Ultrasound left shoulder on 23/03/2022
Full-thickness anterior tear of the supraspinatus is noted. Evidence of subdeltoid bursitis.
CT lumbar spine on 27/07/2023
Previous anterior spinal fusion at L5/S1 with a disc prosthetic device inserted. No obvious left-sided nerve entrapment. No spinal canal stenosis. Early left-sided facet OA from L4 to S1.
Post subject accident
X-ray and ultrasound left shoulder on 22/09/2023
Evidence of subdeltoid bursitis. Partial tear of the supraspinatus. Tenosynovitis of the biceps. AC joint shows mild OA change.
MRI cervical spine on 14/02/2024
Multilevel spondylotic changes most notable at the C5/6 level where there is severe left-sided foraminal stenosis. There is potentially irritating the exiting left C6 nerve root. No high grade right sided foraminal stenosis.”
At [18], Medical Assessor Woo diagnosed that Ms McGrath had sustained soft tissue injuries of the cervical and lumbar spine and of the left shoulder. In the cervical spine, there were not two or more of the five signs required for a diagnosis of radiculopathy; the lumbar spine injury had resolved as had the left shoulder injury. The ultrasound findings of the left shoulder after the accident were like those prior.
Medical Assessor Woo set out his causation and reasons at [19], noting that the low back and left shoulder injuries were well documented immediately following the motor accident. The cervical spine injury was initially not identified when the claimant thought that her left arm symptoms were related to previous injury until her treating physiotherapist found symptoms relating to the cervical spine. The alleged injuries are causally related to the motor accident on 9 August 2023.
Medical Assessor Woo concluded at [22] that the soft tissue injuries to the cervical and lumbar spine, and soft tissue injury to the left shoulder, were threshold injuries for the purpose of the MAI Act.

SUBMISSIONS
Claimant's submissions dated 13 September 2024

The Panel refers to the submissions for Ms McGrath of 13 September 2024 and summarises them by reference to paragraph numbers:
Subject motor accident
[3]-[4] Ms McGrath was involved in a significant motor vehicle accident on 9 August 2023 on Tom Uglys Bridge, Sylvania NSW. Her vehicle was rear-ended in a four-car collision, causing her vehicle to be pushed into the car in front.
[5]-[7] She sustained back, neck and left shoulder injuries, along with shock and anxiety. She has received treatment from GP Dr Mark Dixon, physiotherapy, and neurosurgical review with Dr Scholsem. Dr Dixon recommended cervical spine nerve decompression.
[8]-[9] Ms McGrath submits the accident exacerbated her pre-existing lower back and shoulder injuries and caused a new neck injury and she lodged a claim with NRMA on 11 August 2023.
Threshold injury dispute
[10]-[11] On 22 April 2024, NRMA issued a liability notice after 52 weeks, denying benefits on the basis the injuries were threshold injuries. Ms McGrath requested internal review, which NRMA affirmed on 4 June 2024.
Cervical spine injury
[12] A 14 February 2024 MRI showed multilevel spondylotic changes with severe left-sided foraminal stenosis at C5/6, potentially irritating the C6 nerve root.
[13] Ms McGrath submits NRMA’s review relied on a lack of evidence of nerve injury or structural damage.
[14] NRMA also cited Dr Dhanapalaratnam’s 14 March 2024 report finding no neurophysiological evidence of C6 nerve root dysfunction.

[15]-[16] Ms McGrath submits the MRI shows possible nerve root compression/inflammation. She continues to report pain and restriction in her cervical spine.
[17] Physiotherapist Lauren Nguyen noted neck soreness and left arm burning on
5 February 2024.
[18] The exercise physiologist’s 7 February 2024 record noted referred neck pain with pins and needles down the arm.
[19] On 28 February, Ms Nguyen linked left shoulder burning pain to cervical spine injury.

[20]-[21] On 4 March 2024, Dr Dixon noted persistent neck pain impeding gym activity. On
14 March 2024, Dr Dixon again noted left neck discomfort.
[22] Ms McGrath underwent CT-guided nerve root injection on 4 June 2024 without substantial relief.
[23] In his 14 June 2024 report, Dr Scholsem noted her initial shoulder tear, followed by burning pain in the C6 dermatome, persistent symptoms, and weakness.

[24]-[25] Ms McGrath submits her radiology and symptoms suggest radiculopathy caused by the accident and that further examination is needed to confirm nerve root injury and radiculopathy.
[26] Ms McGrath relies on David v Allianz Australia Ltd to submit that radiculopathy at any time post-accident is sufficient to establish a non-threshold injury.
Left shoulder injury
[27] Ms McGrath submits the accident aggravated her pre-existing left shoulder injury.

[28]-[29] A pre-accident 20 March 2022 ultrasound showed a 16x16 mm full-thickness anterior tear. A post-accident 22 September 2023 ultrasound showed a new partial tear measuring 13x3x11 mm.
[30]-[31] Ms McGrath reported minimal shoulder pain before the accident. Post-accident, she experienced tingling, burning, and numbness in the shoulder.
[32] NRMA disputes causation, citing a lack of contemporaneous evidence.

[33]-[35] Ms McGrath’s APIB, completed two days after the accident, references upper left shoulder and back pain. She submits there is clear contemporaneous evidence and NRMA has not provided an alternative explanation. She has consistently reported left shoulder symptoms to her providers.
[36]-[37] The 12 December 2023 physiologist assessment noted left shoulder pain as the main limitation. The Allied Health Recovery Request 1 on the same date recorded pain during external rotation and abduction.
[38]-[39] Ms McGrath submits her shoulder was stable pre-accident and only deteriorated after the accident. She has not yet been medically assessed specifically for shoulder aggravation.
[40]-[42] NRMA acknowledges possible symptom worsening but denies structural worsening.

Ms McGrath submits NRMA is not qualified to reach that conclusion without expert evidence. Her pre-existing condition made her more susceptible to aggravation. The trauma caused further injury (Arhawi v QBE [2022] NSWPICMP 297).
[43]-[44] Ms McGrath submits the evidence shows increased pain/restriction, supporting aggravation and that the Medical Assessor will likely find this is a non-threshold injury.
Lumbar spine injury
[45] Ms McGrath submits the accident aggravated her prior lumbar spine condition.
[46] She underwent an anterior lumbar interbody fusion approximately 3 years ago.

[47]-[49] One to two weeks before the accident, she had a flare-up and consulted Dr Scholsem, who discussed possible hemilaminectomy. Her symptoms improved a few days before the accident, and she had not committed to surgery.
[50]-[51] Ms McGrath experienced an immediate increase in lower back pain after the accident. She reported lower back injury in her APIB.
[52]-[54] A 22 August 2023 chiropractor diagnosis noted acute lumbar facet strain/sprain post-motor vehicle accident. A 12 December 2023 physiologist report noted nerve pain when standing too long. That report also linked her limitations to neurological pain in the lumbar spine and left glute.
[55]-[57] Ms McGrath submits her prior condition made her vulnerable to further injury, which occurred (Arhawi v QBE [2022] NSWPICMP 297). She has not yet been medically assessed for the lumbar spine injury. She submits that further examination will likely confirm nerve root injury and radiculopathy.
Treatment dispute – cervical spine nerve decompression

[58]-[60] In his 14 June 2024 report, Dr Scholsem noted ongoing cervical spine pain despite conservative treatment and a cortisone injection. Reviewing her MRI, he found “severe foraminal stenosis on the left at C5-C6”. He recommended surgical nerve decompression due to weakness and Impact on her quality of life.
[61]-[62] On 19 June 2024, Dr Scholsem emailed a surgery approval request. On 14 July 2024, NRMA denied the request, deeming surgery not reasonable or necessary.
[63]-[65] Ms McGrath requested an internal review; NRMA maintained its denial on 25 July 2024. NRMA claimed surgery was not causally related to the accident and not reasonable or necessary. It cited lack of contemporaneous evidence and a six month delay in symptom reporting.
[66]-[67] Ms McGrath explained in her 3 September 2024 statement that she initially believed her pain was from the shoulder, not the neck. She submits the delay was due to misdiagnosis and underestimating the injury extent. She had upper region pain from the start.
[68]-[69] Dr Scholsem’s report confirms her pain focus shifted over time, beginning with the back, then shoulder, then neck. The evidence supports her misunderstanding the pain source and reporting symptoms progressively.
[70]-[71] NRMA has provided no alternative cause for the cervical spine injury. Ms McGrath has no pre-existing cervical spine injury.
[72] Her individual circumstances should be considered in assessing treatment.
[73] Under s 3.24 of the Act, she is entitled to reasonable treatment. Surgery was recommended after failed conservative management.
[74] Dr Scholsem has assessed her since the accident and is best placed to recommend treatment.

[75]-[76] Ms McGrath submits it is unreasonable for NRMA to deny surgery based on causation without medical evidence, especially against a neurosurgeon’s opinion. She further submits NRMA failed to consider medical evidence and relied on its own opinion.
[77] NRMA’s prior 30 May 2024 email approved a cervical spine cortisone injection.
[78] This suggests NRMA accepted the cervical injury and its causation, with no objection at the time.

Insurer’s submissions dated 2 October 2024

The Panel refers to the submissions of NRMA of 2 October 2025 and summaries them by reference to paragraph numbers:
Disputes
[1]-[3] NRMA sets out a background to the dispute.
Definition of threshold injury
[5] Section 1.6 of the Act defines threshold injury as:
(a) a soft tissue injury
(b) a psychological/psychiatric injury that is not a recognised psychiatric illness

[6]-[10] Section 1.6(2) defines soft tissue injury as injury to tissue that connects/supports other structures (e.g. muscles, tendons), excluding injury to nerves or complete/partial rupture of tendons, ligaments, menisci or cartilage; Clause 4(1) of the Motor Accident Injuries Regulation 2017 includes spinal nerve root injury manifesting in neurological signs (excluding radiculopathy) as soft tissue injury; Clause 4(2) states acute stress disorder and adjustment disorder are threshold injuries; Clause 5.7 of the Motor Accident Guidelines requires assessment of radiculopathy when determining if a neck or spinal injury is soft tissue; Clause 5.8 defines radiculopathy as requiring two or more of:
(a)    Reflex asymmetry
(b)    Positive sciatic nerve root tension
(c)    Muscle atrophy/decreased circumference
(d)    Localised muscle weakness
(e)    Localised sensory loss
[11] Clause 5.9 states that if the injury does not meet the criteria for radiculopathy, it is a threshold injury. Clause 5.12 applies similarly to psychiatric injuries.
Background
[12]-[21] NRMA sets out a background of the accident, dispute, and review application.
Pre-existing injuries/illnesses
[22] Lumbar spine X-ray of 17 Sept 2021 showed L5/S1 disc prosthesis, mild scoliosis, facet joint OA, and multilevel disc space reductions.
[23] Left shoulder ultrasound of 23 Mar 2022 showed a full-thickness supraspinatus tear and subdeltoid bursitis.
[24] Abdominal ultrasound of 23 Mar 2022 showed a stable lesion in liver segment 7.
[25] Physiotherapy notes stated Ms McGrath had a long-term injury with intermittent flares and queried whether the recent car accident contributed.
[26] Notes from Engadine Medical Practice of 2 Jul 2024 recorded left shoulder tear, chronic back pain, past back surgery, and nerve block.
Medical evidence
[27] Chiropractor Michael Fordham, on 22 August 2023, diagnosed acute lumbar facet strain/sprain post-accident.
[28] Left shoulder ultrasound of 22 September 2023 showed subdeltoid bursitis and partial supraspinatus tear.
[29] Shoulder X-ray of 22 September 2023 showed mild AC joint OA; other findings unremarkable.
[30] Dr Dixon, on 27 September 2023, diagnosed motor vehicle accident related lower back pain, left shoulder pain, and whiplash.
[31] EP Julian Caillon, on 12 Dec 2023, noted lumbar pain, nerve pain in left glute and right shoulder, and diagnosed motor vehicle accident lower back pain, shoulder pain, and whiplash.
[32] Cervical spine MRI of 14 Feb 2024 showed multilevel spondylotic changes, severe left C5/6 foraminal stenosis, and potential left C6 nerve root irritation.

[33]-[34] Physiotherapist Laurence Nguyen, on 28 February 2024, linked burning left shoulder pain to cervical spine, noting multiple deficits in motion and strength. On 12 March 2024, he diagnosed C6 nerve root compromise and supraspinatus tear; noted radiating shoulder pain, weakness, and tenderness.
[35] Nerve conduction study of 14 March 2024 found mild bilateral carpal tunnel syndrome; no C5/6 nerve root dysfunction.
[36] Mr Nguyen, on 6 May 2024, noted MRI showed C6 foraminal stenosis; sensory changes with light touch.
[37] Chiropractor John Doherty, on 9 May 2024, reported left arm pain/numbness, cervical ROM restriction, weakness in deltoid and scapular muscles suggesting disc lesion or nerve root impingement.
[38] Dr Dixon, on 14 May 2024, supported diagnosis of soft tissue lumbar injury but not cervical spine; reported numbness, pain into arm/shoulder, and ROM restrictions.

[39]-[40] Dr Scholsem, on 14 June 2024, noted mild cervical spine ROM limitation, left C6 hypoesthesia, elbow flexion weakness, and recommended surgery. On 12 September 2024 he noted Ms McGrath had CT-guided nerve root injection with some symptom relief.
Insurer's position – treatment

[41]-[42] NRMA submits nerve decompression surgery is not reasonable and necessary. NRMA relies on reasons in the Internal Review Certificate dated 4 June 2024.
Physical injuries

[46]-[47] NRMA disputes that Ms McGrath sustained non-threshold physical injuries. NRMA submits her injuries fall within the threshold injury definition under:
(a) section 1.6(2) of the Act;
(b) clause 4 of the Regulations, and
(c) the Guidelines.
[48] NRMA submits there is no evidence Ms McGrath sustained nerve injury or tendon/ligament/meniscus/cartilage rupture.
[49] Clause 5.5 of the Guidelines requires diagnosis to be based on clinical assessment. No treating provider has documented a spinal nerve root injury.

[50]-[51] NRMA submits the injuries do not satisfy radiculopathy criteria in cl 5.8. There is no clinical evidence of two or more signs. Therefore, NRMA submits the physical injuries are threshold injuries as defined in the Act.
Claimant's submissions dated 26 March 2025

The Panel refers to the submissions of Ms McGrath of 26 March 2025 and summarises them by reference to paragraph numbers:
[7] Due to unresolved symptoms, Dr Scholsem recommended cervical spine surgery.
Ms McGrath deferred this to avoid surgery.
[8] She had no prior history of cervical spine injury.

[9]-[10] Medical Assessor Woo conducted a medical assessment to determine whether her physical injuries were threshold injuries. Ms McGrath submits the Medical Assessor erred in finding her cervical spine, lumbar spine, and left shoulder injuries were threshold injuries.
[11] She contends there are reasonable grounds to suspect error because:
(a)    the assessor did not adequately consider relevant medical evidence;
(b)    he did not raise inconsistencies between his findings and those of treating doctors, and
(c)    he failed to provide reasons for key opinions leading to his finding.
Legislative framework
[1]-[2] Ms McGrath sets out Section 7.26 of the MAI Act.
Reasonable cause to suspect

[9]-[11] The threshold is low. In Elliott v NRMA [2014] NSWSC 1848, the Court held only a “state of unease” is required, not certainty. The President need only assess whether the application raises concerns suggesting the assessment might be incorrect (Pratap v MAA [2009] NSWSC 1325 at [53]). In Meeuwissen v Boden [2010] NSWCA 253, the Court held that even if the outcome may not change, any non-trivial error justifies referral.
Incorrect in a material respect

[12]-[13] The President must consider whether the assessment was materially incorrect. The President need not find the outcome would change, only that the error is not trivial, insignificant or immaterial. Ms McGrath submits the errors by Medical Assessor Woo are material, as they preclude her from accessing compensation under the Act.
Clinical records of Dr Scholsem

[12]-[14] Dr Scholsem’s records were admitted after Ms McGrath’s application and acknowledged on page 2 of the certificate. The Medical Assessor briefly referred to them on page 4. Dr Scholsem’s 14 June 2024 report noted:
·         Mild cervical spine mobility limitation;
·         Hyperesthesia in the left C6 dermatome;
·         Weakness in elbow flexion and reflexes bilaterally, and
·         No long tract signs.
[15] The Medical Assessor did not further address whether these findings were evidence of radiculopathy.

[16]-[17] Clause 5.7 of the Motor Accident Guidelines requires assessment of radiculopathy for neck/spine injuries. The Assessor simply stated that “two or more” signs were not present, without identifying which signs were or weren’t observed.
[18]Ms McGrath submits that Dr Scholsem’s findings warranted closer consideration in determining whether radiculopathy was present.

[20]-[21] Ms McGrath submits that if the Medical Assessor did not find radiculopathy based on his own exam, he should have addressed inconsistencies with Dr Scholsem’s findings. Those inconsistencies should also have been raised with Ms McGrath for response.
[22] In David v Allianz [2021] NSWPICMP 22, the Review Panel confirmed radiculopathy need not be present at the time of the Commission’s assessment if previously established.
[23] Ms McGrath submits the Medical Assessor should have considered whether radiculopathy was present during earlier reviews and whether David applied.
[24] She notes the history of a cortisone injection in December 2024 and that the Medical Assessor recorded symptom improvement.

Insurer’s submissions dated 15 April 2025

The Panel refers to the submissions of NRMA of 15 April 2025 and summarises them by reference to paragraph numbers:
[1] Ms McGrath submits that Medical Assessor Woo erred in determining her injuries were threshold injuries under the Act. NRMA disagrees that any material error occurred.
[2] NRMA submits that the Medical Assessor did consider the report by Dr Martin Scholsem dated 14 June 2024.
[3] NRMA notes that the Medical Assessor acknowledged having considered submissions from both parties at page 2 of the Certificate.
[4] NRMA notes that the Medical Assessor referred to Dr Scholsem’s clinical notes as late documents on page 2.
[5] NRMA notes that Ms McGrath’s submissions referenced Dr Scholsem’s report and the decision in David v Allianz Australia Ltd NSW PIC NP 227, particularly regarding radiculopathy (see [23]–[26] of Ms McGrath’s submissions).
[6] Ms McGrath’s application included the Internal Review Certificate dated 4 June 2024, affirming NRMA’s threshold injury determination.
[7] NRMA submits the Medical Assessor provided Ms McGrath the opportunity to give a history of her symptoms and treatment on pages 3 and 4.
[8] The Medical Assessor recorded Ms McGrath’s treatment with Dr Scholsem on
14 June 2024 and 12 September 2024 and noted her upcoming review in April 2025.
[9] The Medical Assessor undertook a detailed assessment of Ms McGrath’s cervical spine, upper and lower limbs, and lumbar spine at pages 5 and 6.
[10] The Medical Assessor noted nerve conduction studies from 14 March 2024 which showed findings consistent with bilateral carpal tunnel syndrome of mild electrophysiological evidence.
[11] The nerve conduction study dated 14 March 2024 showed no evidence of proximal nerve/C6 nerve root dysfunction.
[12] The Assessor acknowledged the 14 February 2024 cervical spine MRI, which showed multilevel spondylotic changes and severe left foraminal stenosis at C5/6, potentially irritating the left C6 nerve root.
[13] NRMA submits that Dr Scholsem did not specifically diagnose radiculopathy in his
14 June 2024 report.
[14] The Medical Assessor gave reasons for his finding of soft tissue injury to the cervical spine. He stated Ms McGrath exhibited non-verifiable radicular symptoms, and that two or more signs of radiculopathy were not present.
[15] NRMA submits the Medical Assessor clearly documented his awareness of and consideration of Dr Scholsem’s report within the certificate, implying he considered the clinical findings.
[16] NRMA notes that the Medical Assessor acknowledged the presence of non-radicular symptoms in the cervical spine.
Conclusion

[18]-[22] NRMA submits the Medical Assessor correctly determined Ms McGrath sustained a threshold injury to her neck. NRMA submits Ms McGrath failed to identify any errors or provide sufficient reasons to justify referral to a Review Panel under s 7.26(2) of the Act and therefore the application for review of the certificate should be dismissed.
EVIDENCE BEFORE THE PANEL

Statement of Ms McGrath of 3 September 2024:
“[3] I did not go to Hospital after the accident however I did start to experience pain in my neck, upper back, left shoulder and lower back. I was also in shock and felt anxious.
[14] Initially after the accident I first started to feel tightness, restrictions and soreness around my upper back/neck/shoulder girdle area.
[15] The above injuries gradually became worse, and I felt a hot burning sensation from the shoulder girdle area which went down my left arm and gradually became worse and extended to tingling/numbness and pain down my left arm.
[16] I underwent an ultrasound of my left shoulder on 22 September 2023 which showed I had a partial articular surface tear. I acknowledge prior to the motor accident I had obtained an ultrasound of my left shoulder on 20 March 2022 and that showed a full thickness insertional anterior tear.
[17] Before the accident I was not attending treatment for my left shoulder, I was managing normally it did not cause me a lot of grief.
[18] Since the accident the condition of my left shoulder has seriously deteriorated.
[20] I realised as I was attending treatment that the pain was very different and worse than it had ever been. I was experiencing intense burning, tingling and loss of movement in my left shoulder. The numbness and tingling radiated down my arm and the whole shoulder girdle area felt tight and restrictive. I also felt weakness/tightness and restriction/decreased range of movement in my shoulder girdle area.
[21] The pain was very different to anything I had previously experienced … before the accident my left shoulder was not causing me much grief or pain. The only issue I had with my shoulder prior to the accident was if I did box when hitting the pads it would get sore in the rotator cuff area.
[22] The pain in my left shoulder is much worse and I am experiencing serious restriction.
[23] I have a slight dullness sensation in my left arm/hand compared to my right. I experience weakness in my left side compared to my right. I have constant tightness in my shoulder girdle and neck.
[24] I also feel like my left side is compacted between my neck and shoulder which is painful with the tightness and the raise on my left side is visually noticeable as well.
[25] …My physio has advised exercises to do regularly to keep the shoulder girdle area strong around it. I find I can’t lift the same weight in my left that I can with my right particularly when lifting above my head. When I do lift above my head, it feels tight, restricted, and uncomfortable unlike the right side that feels completely different with full range and no restriction. I have these same issues with carrying heavy items.
[47] Following the motor accident, I struggled with ongoing neck pain however I believed this was due to my left shoulder injury and therefore made complaints of shoulder girdle/neck pain.
[48] As I attended treatment for my left shoulder, I assumed my neck and shoulder would recover simultaneously.
[49] My neck pain continued to develop and worsen overtime despite the left shoulder treatment…
[50] …My GP also thought that the pain must be coming from my neck not my shoulder and that is why he recommended I have an MRI of the cervical spine as soon as I could get a booking.
[51] I obtained an MRI on 14 February 2024 which revealed potential nerve irritation at C6.
[52] After this my GP referred me for further treatment with Dr Martin Scholsem, Neurosurgeon.
[53] I obtained a cortisone injection in the whole neck/shoulder girdle area on 5 June 2024 with Dr Clarke as referred by my GP.
[54] I then consulted Dr Scholsem after having the injection on 12 June 2024 at which time he reviewed my injury and recommended I undergo a nerve root decompression surgery.
[55] I have somewhat benefited from the cortisone injection however it appears to just of masked the pain did not repair the injury. Therefore, the next best available option for me to is to undergo surgery.
[56] I wish to do the surgery to give me an opportunity to physically go back or at least be as close to how I was prior to the accident. ... The pain effects many aspects of my life, especially exercising which is very important to me…
[59] I am booked to undergo the nerve decompression surgery on 19 September 2024 under the public system, but I will need to consult with Dr Scholsem as I have some further questions and concerns. Especially because if I go ahead under the public system Dr Scholsem can only oversee the surgery not actually perform it.
[60] I have consistent tightness on my left side neck/shoulder girdle area which has been constant throughout and I am noticing since I no longer can have physiotherapy treatment which I was having twice a week, this is worse, and I have to manage myself as I cannot afford to go twice a week out of my own pocket.
[61] I use my right side all the time now to carrying, lifting etc and try not to put much weight on my left side as I am scared to aggravate it as it feels tight/restricted and numbness sensation.
[62] I regularly do my neck exercises whilst I am working and make sure I maintain correct posture and do not slouch/overextend etc.”

Reports of Dr Martin Scholsem (various dates):
“14 June 2024
Rachelle had a tear in the left supraspinatus and initially related the pain she was experiencing to that. She organised physiotherapy using her own funds but a few weeks later she developed a burning pain in the left upper limb in the C6 dermatome. Her neck pain slowly improved but she has not noticed any improvement in the left upper limb symptoms and now has also numbness and feels that her strength is not as good as prior. She cannot exercise like she used to do and has to take regular anti inflammatories.
Ten days ago, she had a CT guided nerve root injection which unfortunately did not help her much at all.
On examination there is mild limitation of cervical spine mobility. There is no pain on palpation of the facet joint or paravertebral muscle. There is some hypoesthesia to light touch and pinprick in the left C6 dermatome but also weakness affecting elbow flexion on that side. Reflexes are weak bilaterally and I cannot detect any long tract signs.
I had a chance to review the MRI performed 3 months ago explaining very well Rachelle's symptoms. There is severe foraminal stenosis on the left at 05 - C6 but fortunately no significant foraminal narrowing anywhere else.”
12 September 2024
Rachelle returned for review today. The CT guided nerve root injection she had one week prior to seeing me last time was not doing much at that time but seems to have kicked in and Rachelle told me that her symptoms are not as pronounced as previously.
She is back at work and tries to exercise like prior although she cannot do as much and her left upper limb is still weaker than previously. The pain is relatively controlled taking anti inflammatories but she can still feel the C6 symptoms relatively constantly. The neck pain is worsened by sleeping on her left side which of course was not the case prior to the accident.
I had a chance to review the imaging and have advised her to give it a little bit more time. I have given her a referral for another nerve block if necessary and have told her that we will ‘play it by ear’. I suspect that at one stage she will need surgery for this but let us see what happens.”
16 September 2024
1.      The dates I examined Ms McGrath are 14.6.24, 12.9.24
2.      Ms McGrath explained to me that on 9th August 2023 she was involved in a motor vehicle accident. She was rear ended before running into the car in front of her. She never had any issues with her neck prior to this incident. She suffered a whiplash injury and at the time a significant flare up of her low back pain for which she needed chiropractic treatment and massages. She explained to me that her focus was initially on her low back pain but a month later she started to experience pain around her left shoulder. Due to her previous shoulder pain and known tendinopathy she related the pain she was experiencing to a shoulder problem. Using her own funds she organised to have physiotherapy but a few weeks later developed a burning pain in the left C6 dermatome. She was referred to me by her general practitioner.
3.      Ms McGrath had limitation of cervical spine mobility without any pain on palpation of the facet joint or paravertebral muscle. She had discrete weakness affecting elbow flexion on the left side associated with some hypoesthesia to light touch and pinprick in the C6 dermatome. The reflexes were weak bilaterally without any long tract signs. The examination was unchanged between the two appointments.
4.      The upper limb radiculopathy is impacting her capacity for work. Certain repetitive actions temporarily worsen her symptoms.
5.      …At the moment, Ms McGrath has some capacity for work although on restricted duties.
6.      The prognosis of cervical radiculopathy is variable from complete resolution of the symptoms to persisting debilitating symptoms requiring surgical decompression.
8.      …The proposed cervical spine nerve root decompression surgery is related to the motor vehicle accident and spinal trauma that Ms McGrath sustained at that time. It is reasonable and necessary considering how much the symptoms impact her quality of life.
9.      It is possible that Ms McGrath would have needed a surgical decompression in the future but there is no way to quantify that risk. Her risk of needing surgical decompression was not higher than any other member of the community.
10.    It is likely that the motor vehicle accident brought forward the need for this surgery.
11.    Ms McGrath suffered at least two clinical signs of radiculopathy namely reproducible sensory loss and muscle weakness in a spinal nerve distribution.”

Diagnostic investigations

See [17] of the certificate of Medical Assessor Woo.

Application for Personal Injury Benefits

The Application for Personal Injury Benefits form describes the accident as a “4 car collision in which the at fault driver which was the last vehicle ran up the back of the car behind me who then hit me and then I hit the ute in front of me”. Ms McGrath lists injuries to her “left side, upper back/shoulder, and lower back”.

RE-EXAMINATION BY THE PANEL

Medical Assessor Sophia Lahz examined Ms McGrath on behalf of the Panel at the Commission’s Medical Suites on 3 July 2025.

Personal history

Ms McGrath is aged 52 and left-handed. She had travelled from home in Sylvania to the CBD for the appointment.
Medical Assessor Lahz explained the purpose of the appointment and Ms McGrath understood that it was to determine whether there had been a threshold versus non-threshold injury due to the accident on 9 August 2023.
She lives with her two adult children in their 20’s and worked full-time as an executive assistant for the local Council Assets and Structure. She has extensive administrative experience at local government level and holds Certificate IV’s in Leadership and Management. She had also worked as a qualified personal trainer although she did not presently possess up-to-date qualifications. She started her present Council role which was a busy one, six years ago and ceased the personal training work in 2020 because she was too busy.
Her general health is excellent and she is a non-smoker and non-drinker. She has always been interested in training and fitness of herself and others. She had no history of neck pain before the accident although there was a history of low back pain, detailed immediately below.

Medical history

At age 35, while working as a personal trainer, she lifted a portable CD stereo system and felt something “go” in the lower back. A diagnosis was made of L5/S1 disc bulge and for many years she self-managed the ensuing low back pain. However, with the passage of time her symptoms evolved to left sciatica, culminating in successful L5/S1 spacer/decompression four years ago by Dr Scholsem. The sciatica resolved very soon after the lumbar spine surgery.
Post-operatively, she recovered well and was able to resume running six weeks post-operatively. She worked on core strengthening/general strengthening and was able to continue her regular walking and running activities. There was mild mechanical low backache which she continued to self-manage with regular exercise and avoidance of heavy lifting/injudicious activities.
The lower back remained very manageable aside from a flare up which commenced after an overseas flight in approximately May 2023. She had been returning from Bali and lying on a row of three vacant seats for several hours and believes this somehow aggravated the lower back. She developed a lot of lower back muscle spasm. She could not clearly remember if there were any sciatica; she thought the issue then had mostly been low back pain.
She permitted some time for recovery whilst taking NSAIDS. However, when lower back symptoms were slow to settle, she consulted Dr Scholsem who had done the original lumbar surgery. His records indicate that she did receive a lumbar nerve root injection (which she initially could not recall) not long before the subject accident. She remembered there was some discussion about further lumbar decompression surgery although Dr Scholsem was not enthused for further surgery unless it were really necessary, advising a “wait and see” approach.
In any event, the lower back symptoms had gradually settled by the time of the accident. She recalled that she had even been able to resume running prior to the accident.
Medical Assessor Lahz asked her about the pre-existing left shoulder injury (complete supraspinatus tear on ultrasound) occurring in late 2022. She ascribes this to a push-up. There was subsequent pain in the posterior deltoid which she managed initially with rest, osteopathy and then strengthening. She said the left shoulder nearly fully recovered and she could resume all of her usual activities of daily living and exercise activities (even shoulder presses and push ups) aside from boxing, which tended to stir up posterior shoulder pain.

History of the accident

At the time of the accident, she was the restrained driver of a 2020 model Mazda 3, the second in a line of four cars. A car (Corolla) which itself had been rear-ended, then rear-ended her vehicle, in turn causing hers to hit the back of the car in front (Hilux). She had brief warning of the imminent collision, hearing the preceding bang and recalls attempting to swerve to the right in order to escape.
She did not recall any part of her body striking the cabin interior. She did remember being pushed forward and then backwards. Immediately afterwards, she felt shocked although she could exit the vehicle and walk around at the scene. An ambulance did not attend although the police arrived. She was able to make the necessary arrangements to summon a tow truck.
She was immediately aware of low back pain along with tightness at the left side of the neck/trapezius/shoulder. The tow truck driver later dropped her home.

Post-accident symptoms and treatment

The following day, there was ongoing left shoulder tightness/soreness although she was more focused on the lower back, given the history of surgery in this location. She worked from home, having flexible employment arrangements and saw her general practitioner the next day.
She started treatment with a chiropractor through “Back to Life” targeting the lower back and left shoulder. Given the pre-existing rotator cuff tear, she had thought the left shoulder tightness being experienced after the accident was attributable to a flare up of that pre-existing condition.
The lower back symptoms improved to baseline and she is not alleging any permanent deterioration in the condition of the lower back due to the accident.
The left shoulder symptoms failed to improve (despite application of self-management measures she had used after the earlier injury during 2022), and moreover worsened. There was persistent tightness at the left shoulder blade and trapezius and by September 2023, she had developed a constant burning sensation enveloping the left shoulder and upper arm.
She underwent a left shoulder ultrasound, which showed a “partial” tear. She thought it odd that the “complete” tear present before the motor accident, would somehow have improved to become “partial”. (Medical Assessor Lahz notes however that ultrasound is an extremely operator dependent investigation, without the accuracy conferred by MRI).
At this stage, she started seeing a physiotherapist (Mr Nguyen) at Penshurst for the left shoulder pain/burning sensations. All the while left upper limb symptoms continued to evolve and by late 2023, there were very uncomfortable tingling sensations/paraesthesia affecting the radial forearm and thumb.
A few months later, Ms McGrath also developed numbness/tingling affecting the left little finger although the neurological symptoms at the thumb continued to predominate. She also developed weakness of the left hand with tendency for dropping items. Moreover, head movements to the left, especially if sustained, caused burning and shooting sensations in the left upper arm, down the forearm and increased neurological symptoms at the thumb.
Mr Nguyen informed her that he felt the problems were coming from the neck, and not the shoulder despite what she had originally thought.
Scans were undertaken showing a compressed left C6 nerve due to C5/6 foraminal narrowing.
Subsequently, she consulted again with Dr Scholsem. She said there were numerous delays due to the specialist being on leave and then further delays with treatment due to an interventional radiologist breaking his wrist.
Dr Scholsem explained the diagnosis of left cervical nerve root (C6) compression and arranged steroid injections to the C5/6 level. She underwent the first injection in June 2024 with significant (60%) relief although symptoms had gradually ramped up again by December 2024 at which time she received a further injection with again favourable, albeit short-term results.
In between the two steroid injections, the left upper limb symptoms abated sufficiently for
Ms McGrath to resume upper limb strengthening which she had not been able to do beforehand.
Dr Scholsem was not keen for her to receive further cervical spine injections given the risk of cartilaginous weakening. He subsequently recommended spacer insertion to C5-6 to decompress the left C6 nerve root using an anterior surgical approach. Ms McGrath was booked to undergo the latter surgery in early September at St George Hospital in the public system.
Although the left upper limb symptoms are still generally better than before the 2024 cervical spine injection, they remain sufficiently bothersome that she still wishes to undertake the proposed cervical spine surgery. She had requested the neck surgery of the CTP insurer although it was declined.
She reported ongoing intermittent burning and shooting sensations down the left arm, commencing at the left side of the neck and spreading over the trapezial region to the arm/radial forearm associated with tingling sensations in the thumb>>little finger. She experienced “bad” days with the left arm on average twice weekly. She reported as well, being unable to lie on the left arm at night and must carefully prop her arm on a pillow. Average pain intensity at the left arm is 6/10 and the left neck/trapezial region feels tight as though it always needs a massage. She cannot tolerate prolonged left head turn due to worsening neurological symptoms in the left arm and will often have to change seats at the dining table to avoid looking left for too long.
The whole left hand feels peculiar and weak, and she has continued dropping items regularly. She reported finding it difficult to write given that she is left-handed. She is also wary of lifting with the dominant left arm, preferring to use the unaffected right upper limb.
She continues receiving physiotherapy (self-funded) weekly and she also regularly attends the gym, completing the exercise programme recommended by the physiotherapist which includes cervical spine isometrics. She avoids heavy lifting and any exercises which aggravate the left arm neurological symptoms.
She takes Celebrex regularly and Panadeine Forte during more severely symptomatic periods.
She reported reasonably satisfactory elevation of the left upper limb although there is less range compared with the right.
She does not believe the supraspinatus tear at the left shoulder is causing the current problem. She thinks the left arm symptoms are coming from the neck, as does the treating spinal surgeon.
Regarding the lower back, as noted, she is not particularly concerned. She does have ongoing back pain, mainly on the right side in the quadratus lumborum area. She attributes the laterality of the pain to overuse of the right upper limb to compensate for the persistent neck/left upper limb problems. She avoids bending over to retrieve items from low down.
She still does chores, shopping and cooking etc by taking care. However, the left arm pain and neurological symptoms at the hand are adversely affecting her quality of life causing sleep disturbance and functional restrictions.

Clinical examination

On examination, Ms McGrath was pleasant, straightforward, cooperative and of slim muscular build. Weight was 60.4 kg and height 168 cm. Gait was unremarkable. She could walk, tiptoe and walk on heels without ado.
Neck movements were hesitantly performed with flexion ½ normal range, extension 1/3 normal range (with soreness complaint), lateral flexion to either side ½ normal range (irritability with leftward movement) and rotation 1/3 normal range to the right and ¼ normal range to the left again with greater irritability on leftward movement. There was dysmetria in the sagittal and coronal planes.
There was tenderness over C5-7.
There was muscle guarding/spasm with tenderness at the left trapezius, very distinct compared with the soft, non-tender right trapezius.
The left-sided Spurling manoeuvre was positive and other upper limb neural tension manoeuvres were also positive causing a shower of neurological symptoms into the left arm, with predominance at the radial forearm and thumb and to a lesser extent the index finger.
There was no measurable wasting of the arms 10 cm above the elbow crease- 26 cm nor of the forearms 5 cm below the crease- 23 cm.
The left biceps jerk was reduced compared with the right. Other upper limb deep tendon reflexes were symmetrical.
There was sensory loss at the left arm localised to the radial forearm, thumb and to a lesser extent the index finger (consistent with C6 pattern). As noted, there were also neurological symptoms in the left C6 distribution.
There was a degree of pain-related weakness throughout the left arm/forearm.
There was also mild generalised (painless) weakness of the left-hand affecting thumb flexion/extension, finger flexion/extension and finger abduction/adduction.
There were findings consistent with left C6 radiculopathy being reduction of the biceps jerk, sensory loss in the C6 distribution and positive left-sided upper limb neural tension tests.
Active range of motion at the shoulders is shown in the following table: Movements were found consistent with repetition and measured with a goniometer.

Right	Left
Abduction	170	140
Adduction	70	70
Flexion	140	130
Extension	60	40
Internal rotation	70	70
External rotation	70	70

Active shoulder movements were limited L>R by pulling sensations in the left side of the neck and left trapezius.
There was no focal tenderness about the shoulders.
There was no asymmetrical wasting of the shoulder girdles.
Impingement tests at the shoulders were bilaterally negative.
On the right, she could reach the interscapular region with her hand whereas on the left, she could barely reach the buttock.
On examination of the lumbar spine, there was flattening of the lumbar lordosis.
Lumbar spine flexion was 2/3 normal, extension 2/3 normal, lateral flexion ¾ normal range to either side and rotation full to either side.
There was no muscle spasm or guarding and there were no lower limb non-verifiable radicular complaints.
She was able to sit on the side of the couch with legs extended i.e. lower limb neural tension tests (reverse SLR) were negative.
Knee and ankle jerks were present and symmetrical.
There was normal lower limb sensation and normal lower limb power in all groups.
There was no measurable wasting of the thighs 43 cm 10 cm above the patella nor the calves 20 cm, at maximal mid-calf girth 34 cm.
There were no findings of lower limb radiculopathy.

Conclusion

Ms McGrath presented in a straightforward manner and Medical Assessor Lahz accepted the chronology of left shoulder/upper limb symptoms provided.
There was immediate reference to the left shoulder in the general practitioner records which evolved to the present features of left C6 radiculopathy characterised by reduced biceps jerk, sensory loss confined to C6 and positive left-sided upper limb neural tension signs.
Dr Scholsem also made similar clinical findings on 14/6/24 consistent with left C6 radiculopathy.

Given there are two or more signs of left C6 radiculopathy, Ms McGrath has a non-threshold injury of the cervical spine as defined by MAG (Medical Assessment Guidelines).

Second meeting of the Review Panel

The Review Panel met again at 4.00pm on 8 July 2025 when it discussed the findings as reported by Medical Assessor Sophia Lahz.
After discussion, the members of the Panel agreed that it was significant that Ms McGrath gave a straight-forward account of the chronology of the development of pain and symptoms of the left shoulder and left upper limb.
The Panel accepted the reliability of that history as provided by Ms McGrath. She also presented in a consistent manner during the physical examination with reproducible findings.
The members of the Panel agreed on the significance of the facts as found by Medical Assessor Lahz that there was an immediate reference to the left shoulder in the general practitioner records and those features evolved to those consistent with left C6 radiculopathy which as was found by Medical Assessor Lahz and accepted by the Panel, characterised by reduced biceps jerk, sensory loss confined to C6 and positive left-sided upper limb neural tension signs.
The Review Panel thought that it was significant that Dr Scholsem had made similar clinical findings on 14 June 2024:
“ …Rachelle had a tear in the left supraspinatus and initially related the pain she was experiencing to that. She organised physiotherapy using her own funds but a few weeks later she developed a burning pain in the left upper limb in the C6 dermatome. Her neck pain slowly improved but she has not noticed any improvement in the left upper limb symptoms and now has also numbness and feels that her strength is not as good as prior. She cannot exercise like she used to do and has to take regular anti inflammatories.
Ten days ago, she had a CT guided nerve root injection which unfortunately did not help her much at all.
On examination there is mild limitation of cervical spine mobility. There is no pain on palpation of the facet joint or paravertebral muscle. There is some hypoesthesia to light touch and pinprick in the left C6 dermatome but also weakness affecting elbow flexion on that side, Reflexes are weak bilaterally and I cannot detect any long tract signs.
I had a chance to review the MRI performed 3 months ago explaining very well Rachelle's symptoms. There is severe foraminal stenosis on the left at C5 - C6 but fortunately no significant foramina) narrowing anywhere else...”
These findings by Dr Scholsem as to the two signs of radiculopathy were specifically assessed in the report of 16 September 2024 and were consistent with left C6 radiculopathy.
The other members of the Panel concurred with Medical Assessor Lahz that given there were two or more signs of left C6 radiculopathy, Ms McGrath had a non-threshold injury of the cervical spine as defined by the Medical Assessment Guidelines.

HOW THE PANEL DEALT WITH THE SUBMISSIONS

The Panel accepted Ms McGrath’s chronology, including relevant materials of her Statement.
The Panel in particular referred to [17], [18], and also [20].
The Panel noted that at [21] Ms McGrath stated that:
“The pain was very different to anything I had previously experienced … before the accident my left shoulder was not causing me much grief or pain”
At [22]:
“The pain in my left shoulder is much worse and I am experiencing significant restriction.”
Medical Assessor Lahz and the Panel also took into account the history provided by the claimant, that the following day there was ongoing left shoulder tightness/soreness and she reported the problems to a general practitioner Dr Dixon when she saw him the following day [51].
The Panel also considered Ms McGrath’s history at [54] that the left shoulder symptoms failed to improve and that there was persistent tightness of the left shoulder blade and trapezius, and that by September 2023 she had developed a constant burning sensation enveloping the left shoulder. She also developed neurological symptoms in the left hand. Both the left shoulder pain and the neurological symptoms at the left hand were due to evolving left-sided cervical radiculopathy.
The Panel does not consider that the claimant has incurred a non-threshold injury of the left shoulder due to the motor accident. Documents indicate that there was a pre-existing left-sided rotator cuff tear which remained evident on imaging after the motor accident. The Panel considers that the left shoulder symptoms following the accident were due to evolving left-sided cervical radiculopathy and not arising from any shoulder injury due to the motor accident.

DETERMINATION

The Review Panel revokes the determination of Medical Assessor Alexander Woo of
24 February 2025 that the cervical spine was a threshold injury for the purposes of the Act and in lieu certifies that it is a non-threshold injury for the purposes of the Act.

[2025] NSWPICMP 558

30 July 2025