Mourtada v Allianz Australia Insurance Limited

[2024] NSWPICMP 726

DETERMINATION OF REVIEW PANEL

CITATION:

Mourtada v Allianz Australia Insurance Limited [2024] NSWPICMP 726

CLAIMANT:

Kassem Mourtada

INSURER:

Allianz Australia Insurance Limited

REVIEW PANEL

MEMBER:

Susan McTegg

MEDICAL ASSESSOR:

Margaret Gibson

MEDICAL ASSESSOR:

Shane Moloney

DATE OF DECISION:

22 October 2024

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; threshold injury; lumbar spine, cervical spine, shoulders, and right knee; causation; labral tear; the claimant suffered injury in a motor vehicle accident on 3 November 2022; Medical Assessor (MA) certified injuries to the cervical spine, lumbar spine, both shoulders  were soft tissue injuries and therefore threshold injuries; certified the right knee injury was not caused by the accident; application for review by claimant; Held – no dispute soft tissue injuries to cervical and lumbar spine were threshold injuries; labral tear to left shoulder incidental finding; test for causation as per Briggs v IAG Limited Trading as NRMA Insurance considered; soft tissue injury to left shoulder including possibly the AC joint was a threshold injury; soft tissue injury to right shoulder now resolved is a threshold injury; soft tissue injury to right knee; Medical Assessment Certificate revoked; accident caused soft tissue injury to cervical spine, lumbar spine, both shoulders and right knee; all injuries threshold injuries.

DETERMINATIONS MADE:  

CERTIFICATE OF DETERMINATION

ASSESSMENT OF THRESHOLD INJURY

Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017

1.     The Review Panel revokes the certificate of Medical Assessor Home dated 19 March 2024 and issues a new certificate certifying the following injures caused by the accident were threshold injuries:

(a)    cervical spine – soft tissue injury;

(b)    lumbar spine – soft tissue injury;

(c)    left shoulder – soft tissue injury;

(d)    right shoulder – soft tissue injury, and

(e)    right knee – soft tissue injury.

STATEMENT OF REASONS

INTRODUCTION

1. On 3 November 2022 Mr Kassem Mourtada (the claimant) was the driver of a motor vehicle which was stationary at traffic lights when the insured driver collided with the rear driver’s side of his vehicle (the accident).

2. Allianz Australia Insurance Limited (the insurer) is the relevant insurer with liability to pay statutory benefits to Mr Mourtada under the Motor Accident Injuries Act 2017 (MAI Act).

3. Under the provision of the MAI Act in force at the time of the accident the statutory benefits for treatment and care cease after 26 weeks if “the person’s only injuries resulting from the motor accident were minor (threshold) injuries”.[1]

   [1] Section 3.28 of the MAI Act.

4. Mr Mourtada submitted an Application for personal injury benefits dated 14 December 2022.

5. On 14 March 2023 the insurer determined that Mr Mourtada had sustained a threshold injury and denied liability for statutory benefits beyond 26 weeks after the accident.

6. On 26 April 2023 Mr Mourtada sought an Internal Review of the threshold injury decision. On 24 May 2023 the insurer affirmed the determination that the claimant’s injuries met the definition of a threshold injury.[2]

   [2] Claimant’s bundle p 20.

7. Mr Mourtada filed an application in the Personal Injury Commission (Commission) in respect of the minor (threshold) injury dispute on 30 November 2023.

8. 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 is a threshold injury for the purposes of the MAI Act.

1. A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[3]

   [3] Section 7.20 of the MAI Act.

DOCUMENTS CONSIDERED BY THE REVIEW PANEL

1. On 17 April 2024 the claimant uploaded to the portal a bundle of documents paginated from pages 1 to 680 (claimant’s bundle).

2. On 21 June 2024 the insurer uploaded to the portal a bundle of documents paginated from pages 1 to 9 (insurer’s bundle).

THRESHOLD INJURY – STATUTORY PROVISIONS

1. The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented 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” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.

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

3. Any reference in these reasons to “minor injury” is a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.

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

   “[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”

5. 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)”.

6. 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 is 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 is a threshold injury, the Guidelines relevantly provide:

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

7. In respect of injury to the neck or spine cls 5.7, 5.8 and 5.9 of the Guidelines provide:

   “5.7   In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.

   5.8    Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.

   (a) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)

   (b) positive sciatic nerve root tension signs(see the definitions of clinical findings in Table 6.8 in these Guidelines)

   (c) muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)

   (d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution

   (e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.

   5.9    Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury.”

8. In Briggs v IAG Limited trading as NRMA Insurance[4] his Honour Justice Wright stated at [35]:

   [4] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.

   “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 is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:

   ‘Causation of injury

   6.5An assessment of the degree of permanent impairment is 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 is related to the accident in question is 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.

   6.6Causation 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, therefore, involves a medical decision and a non-medical informed judgement.

   6.7There 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.”

ASSESSMENT UNDER REVIEW

1. The injuries referred for assessment to Medical Assessor Home in respect of the dispute as to threshold injury were the following:[5]

   (a)    injury to the cervical spine;

   (b)    injury to the lumbar spine;

   (c)    injury to the left shoulder;

   (d)    Injury to the right shoulder, and

   (e)    injury to the right knee.

   [5] Insurer’s bundle p 7.

2. Medical Assessor Home concluded the accident caused a soft tissue injury aggravating underlying degenerative change.

3. In relation to the left shoulder Medical Assessor Home noted there was documentation of left shoulder pain five to six weeks post-accident. He reported an increase in pain in May 2023 leading to imaging of the left shoulder which was requested in April 2023 but performed in May 2023. He concluded the capsular changes shown on the MRI scan of the left shoulder represented a degenerative tear within the left shoulder capsule.

4. He also stated the mechanism of injury was not consistent with causing a tear of the shoulder capsule as the accident did not involve a significant traction or sudden abduction or rotation force to the left shoulder that would be required to cause a traumatic tear.

5. Medical Assessor Home also commented that had the claimant suffered a traumatic tear of the left shoulder capsule he would have expected him to develop very severe symptoms in the left shoulder within a day of the accident. In this case there was no records of severe left shoulder pain or restriction of motion in the days after the accident. He was satisfied the claimant suffered a soft tissue injury to the left shoulder and referred pain from the neck caused by the accident.

6. Medical Assessor Home concluded the right knee injury represented a recurrence of chronic symptoms that he had suffered in the right knee for many years. He also stated it was unusual for rear end collisions to cause direct injury to the knee. He also noted there was no record of right knee pain until the claim form dated 14 December 2022.

7. He concluded the imaging demonstrated the progression of underlying and degenerative changes in the medial meniscus.

8. Medical Assessor Home certified the following injuries were caused by the accident:

   (a)    cervical spine – aggravation of underlying cervical spondylosis;

   (b)   lumbar spine – aggravation of underlying lumbar spondylosis;

   (c)    right shoulder – soft tissue injury; referred pain from the neck, and

   (d)   left shoulder – soft tissue injury; referred pain from the neck.

9. He certified the right knee injury was not caused by the accident.

10. Whilst he adopted the reasoning in David v Allianz Australia Insurance Ltd that radiculopathy can be present at any time to establish non-threshold injury he reported that none of the criteria for cervical radiculopathy set out in clauses 5.8 to 5.10 of the Guidelines were met.[6]

    [6] David v Allianz Australia Insurance Ltd [2021] NSWPICMP 227

11. Similarly, he concluded that none of the criteria for lumbar radiculopathy set out in the Guidelines were met.

12. In relation to both shoulders, he found there was no evidence of injuries to the nerves, complete or partial rupture of tendons, ligaments, menisci or cartilage caused by the accident.

13. In a certificate dated 19 March 2024 Medical Assessor Home certified the following injuries caused by the accident were threshold injuries:

    (a)    cervical spine – aggravation of underlying cervical spondylosis;

    (b)    lumbar spine – aggravation of underlying lumbar spondylosis;

    (c)    right shoulder – soft tissue injury; referred pain from the neck, and

    (d)    left shoulder – soft tissue injury; referred pain from the neck.

REVIEW PROCEDURE

1. The claimant lodged an application for review of the assessment of Medical Assessor Home on 17 April 2024 within 28 days of the date on which the certificate of Medical Assessor Home was made available to the parties.

2. On 31 May 2024 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).[7]

   [7] AD2 p 9.

3. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[8]

   [8] Rule 128 of the PIC Rules.

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

EVIDENCE BEFORE THE PANEL

1. Mr Mourtada is 59 years of age and was 57 years of age at the time of the accident.

Photographs

1. Black and white photographs show the two vehicles in collision. It appears the claimant’s vehicle sustained damage to the rear driver’s side tail lights, the rear bumper on the driver’s side and the rear driver’s side panel.

Application for personal injury benefits

1. In the Application for personal injury benefits dated 14 December 2022 Mr Mourtada listed his injuries as “Injury to neck; low back, both shoulders; hips, right knee; anxiety state and depression”.[9]

   [9] Claimant’s bundle p 29

2. He acknowledged he had pre-existing injury affecting the back, right knee, anxiety and depression.

Pre-accident treating medical records

AlZahraa Medical Centre – clinical notes

1. The clinical records disclose five attendances for right knee pain, including tenderness and reduced range of motion between 13 July 2010 and 16 October 2011. On 26 November 2017 Dr Ismail reported severe pain in the right knee and noted Mr Mourtada was unable to extend the knee. On 3 December 2017 Dr Ismail reported a right knee MRI showed a full thickness ACL (anterior cruciate ligament) tear and recommended Mr Mourtada see an orthopaedic surgeon. On 17 December 2018 Dr Ismail reported severe pain and tenderness in both knees. On 19 August 2022 Dr Ismail reported Mr Mourtada was troubled by knee pain, worse on the right side and worse with walking or standing for too long.

2. On 19 March 2013 Dr Ismail reported severe lower back pain and noted discharge from hospital after three days on morphine. He prescribed Panadol Osteo and Endone. Mr Mourtada consulted Dr Ismail for severe lower back pain on eight further occasions until 10 March 2015. On 2 May 2015 Dr Ismail reported no improvement after two spinal injections. He attended Dr Ismail on about 14 further occasions until 18 April 2022 in respect of severe lower back pain or chronic back pain. On 6 September 2022 Dr Jaffer reported lumbar disc disease and chronic back pain. It was also noted that Mr Mourtada was starting to have neck pain. It was reported he could not stand for longer than 15 minutes and had problems with sitting. It was affecting his sleep, and he was struggling with function and mobility.

3. On 1 January 2016 Dr Ismail reported left shoulder pain, tenderness and reduced range of motion.

4. On 31 May 2022 Dr Ismail reported severe pain both hips, left greater than right. He noted tenderness and reduced range of motion.

Post-accident treating medical records

AlZahraa Medical Centre – clinical notes

1. On 4 November 2022 Dr Ismail diagnosed injury to the neck, lower back, both shoulders and both hips and reported:

   “On 3/11/22 while stationary on traffic light another car hit his car from behind at speed 60km. Felt severe pain neck, both hips, lower back, both shoulders R>L. Tender neck, lower back, both shoulder and both hips. Reduced ROM.”[10]

   [10] Claimant’s bundle p 63.

2. On 23 November 2022 Dr Ismail reported serve pain in the neck referred to the arms. He noted a tender neck and reduced sensation. He stated “? Radiculopathy cervical spine”. He also reported severe right shoulder pain, and noted Mr Mourtada was unable to use it. He noted tenderness and reduced range of motion of the right shoulder.[11]

   [11] Claimant’s bundle p 352.

3. Mr Mourtada consulted Dr Ismail on 30 November 2022, 7 December 2022, 21 December 2022 and 23 December 2022 with no complaint relating to the left shoulder.

4. In a Certificate of capacity/certificate of fitness dated 7 December 2022 Dr Ismail listed the accident related injuries as “Injury to Neck, Lower back, Both Shoulders, Both Hips and Right Knee”.[12]

   [12] Claimant’s bundle p 312.

5. On 11 January 2023 Dr Ismail reported severe pain in the neck and lower back with referral to the arms and numbness in the arms and legs. He reported Mr Mourtada was tender in the lower back with reduced sensation. He stated, “? Radiculopathy cervical and Lumbar spine”. Mr Mourtada’s psychological symptoms started to become more prominent in the clinical notes of AlZahraa Medical Centre.

1. Mr Mourtada consulted Dr Ismail on 24 January 2023, and 27 January 2023 but he failed to report any specific complaint pertaining to the left shoulder.

2. The first record of complaint specifically addressing left shoulder pain was when the claimant saw Dr D’Silva on 30 January 2023 when he reported ongoing pain in the left shoulder radiating to the upper arm down to the elbow.

Physio Interactive

1. In an Allied health recovery request (AHRR) dated 10 February 2023 physiotherapist Andy Zhao provided the following opinion as to diagnosis:

   “Discogenic cervical spine pain, multilevel disc bulge with nerve root compromise.

   Bilateral shoulder pain – shoulder impingement with rotator cuff pathology left worse than right.

   Discogenic lumbar spine pain left worse than right.

   -Bilateral hip pain ?referral pain vs his impingement.

   Right knee pain – reaggravation of meniscal injury.”[13]

   [13] Claimant’s bundle p 604.

2. Andy Zhao reported on 13 February 2023.[14] At the initial assessment on 9 February 2023 he reported high levels of constant pain along his neck, increasing stiffness and pain with movement, frequent headache referred from the back of the head to the forehead and behind the eyes. He reported active range of motion was flexion 20º, extension 30º and rotation to the left 30º and to the right 20º.

   [14] Claimant’s bundle p 33.

3. Mr Zhao reported bilateral shoulder pain, left worse than right with pain referred down the left upper arm. Active range of motion was flexion left = 90º, right = 140º, abduction left = 80º, right = 120º, hand behind back was left = L5/S1, right = T12 level. He reported shoulder impingement tests were positive on the left. Empty and full can test was positive with significant weakness noted on the left more so than on the right.  

4. Mr Zhao reported constant sharp pain across the lower back radiating down the bilateral legs, worse on the left. He also reported heaviness in his bilateral legs and cramping in the lower legs. He reported active range of motion of the lumbar spine was flexion = 30º and extension = 5º. Hip external rotation range of motion was limited to 30º on the left and 40º on the right. Internal rotation was measured as 10º on the left and 15º on the right. Straight leg raise test was positive at 40º bilaterally with pain. He reported the FABER and FADIR tests were positive with pain reproduction at the hips.

5. Mr Zhao reported Mr Mourtada complained of increasing pain in his right knee, aggravated with prolonged walking or standing over five minutes. Active range of motion was measured as flexion = 110º and extension full range. McMurray’s test was positive with pain reproduction.

6. In a report dated 7 June 2023 Mr Zhao reported Mr Mourtada had completed 21 physiotherapy sessions.[15] He reported pain levels in the cervical spine remained
   

   [15] Claimant’s bundle p 641.

   constant, right worse than left. He also reported frequent headaches. Mr Zhao reported Mr Mourtada reported a sharp pain located deep and anteriorly at the bilateral shoulder joint, left worse than right. Pain was easily aggravated, and he had difficulty performing day to day activities. He continued to experience a constant sharp pain across the lower back with pain referring into the bilateral hips and down the bilateral posterior lower limb, left worse than right. His right knee pain remained intermittent but aggravated by prolonged weight bearing.

Imaging/investigations

1. MRI of the right knee, 5 May 2019 – the report concludes:

   “ACL tear. Medial meniscal tear with meniscal cyst formation.”[16]

   [16] Claimant’s bundle p 293.

2. CT lumbosacral spine, 11 March 2015 – the report concludes:

   ”Mild central canal stenosis at L4/5 and L3/4 levels.”[17]

   [17] Claimant’s bundle p 259.

3. CT lumbosacral spine, 15 July 2020 – the report concludes:

   “There is an anterior compression fracture of L2 with 20% loss of anterior vertebral body height. There is a cleft extending through the anterior aspect of the L2 vertebral body with up to 5mm of separation. There is grade 1 retrolisthesis on L2 on L3.

   There are multilevel spondylotic changes. At L4/5 there is moderate central canal narrowing, severe facet arthrosis, and moderate bilateral foraminal narrowing.

   At L3/4, there is moderate narrowing of the right exit foramen, moderate to severe narrowing of the left exit foramen….”[18]

   [18] Claimant’s bundle p 171.

4. Right shoulder ultrasound, 2 December 2022 – the report concludes:

   “Mild changes of supraspinatus tendinosis, without evidence of tear. Mild subacromial/subdeltoid bursitis.”

5. Right shoulder X-ray, 2 December 2022 – the report concludes:

   “Normal shoulder radiograph…”

6. CT scan cervical spine, 2 December 2022 – the report concludes:

   ”… C5/6 central and mild C6/7 and C3/4 central canal compromise. Foraminal assessment is notable for moderately severe foraminal stenosis bilaterally at C3/4 and right C5/6 level likely compressing the exiting C4 nerve roots bilaterally and right C6 nerve root. There is mild left C5/6 and bilateral C6/7 foraminal stenosis potentially irritating the left C6 and C7 nerve roots bilaterally. Severe left C7/T1 facet joint arthropathy is noted.”[19]

   [19] Claimant’s bundle p 41.

7. MRI right knee, 9 May 2023 – the report concludes:

   “Prior debridement along the inner aspect of the medical meniscus noted. There is hypointense tissue seen along the superior peripheral aspect of the anterior body of medical meniscus, suspicious for unstable tear and displace fragment. This spans approximately 20mm.

   Chronic high-grade to near complete tear at the proximal fibres of the ACL. A few thin residual fibres remain present but is of doubtful functional integrity.

   Lateral meniscus, and the remainder of the ligaments and tendons are intact.

   Areas of high-grade chondral loss involving the medial facet of the patellofemoral compartment and grade 3 chondral thinning at the central weightbearing region of the medical femoral condyle.”

8. MRI left shoulder, 9 May 2023 – the report concludes:

   “Features of grade 1 to 2 AC joint injury with prominent capsular thickening and synovitis and there is subtle prominence of the ACT joint interval. Prominent marrow oedema of the distal clavicle without fracture. No disruption of the coracoclavicular ligament.

   Rotator cuff and LHB are intact.

   Chronic transverse/oblique intrasubstance tear at the posteroinferior labrum from 8 o’clock to 6 o’clock, without adjacent paralabral cyst or synovitis and is of doubtful significance currently.

   Mild to moderate subacromial/subdeltoid bursitis.”[20]

SUBMISSIONS

[20] Claimant’s bundle p 134.

Claimant’s submissions

1. The claimant provided submissions undated in support of the review application and earlier submissions in support of the threshold injury dispute.[21]

   [21] Claimant’s bundle pp 1 and 18.

Left shoulder

1. In concluding that the injury to the left shoulder is a degenerative tear within the left shoulder capsule and not consistent with the mechanism of injury the claimant submits Medical Assessor Home failed to consider that the claimant’s vehicle was rear-ended at a speed of 60 kmph which did involve “significant traction or sudden abduction or force”. Further, it is submitted if there was a pre-existing degenerative condition Medical Assessor Home failed to consider whether it was aggravated by the accident rendering it symptomatic.

2. The claimant argues that it was not correct there was no contemporaneous complaint regarding the left shoulder noting the entry in the Al-Zahraa medical records of 4 November 2022, the Application for personal injury benefits dated 14 December 2022, the entry in the Al-Zahraa medical records of ongoing pain in the left shoulder on 30 January 2023, the report of referred pain down the left shoulder and arm in the Physio Interactive records of 15 February 2023, the severe left shoulder pain in the Al Zahraa medical records of 17 April 2023 and the notation by Physio Interactive of 7 June 2023.

3. The claimant submits the left intrasubstance tear of the posterior inferior labrum of the left shoulder is a non-threshold injury.

Cervical spine

1. The claimant submits that Medical Assessor Home failed to consider whether there is any evidence of radiculopathy at any time since the accident.

2. Whilst the claimant concedes he suffered from cervical spine pathology prior to the accident about which he complained to Dr Nasr on two separate occasions, he notes that the day after the accident he consulted Dr Ismail complaining of severe neck pain and his complaints continued.

3. The claimant submits whilst the investigations reveal pre-existing pathology there is evidence to suggest compression and compromise of the c5/6 and C4 nerve root and C6 nerve root bilaterally, which would corroborate the claimant’s neurological, neuropathic and paraesthesia symptoms. The claimant notes in David v Allianz it is stated:

   “Radiculopathy is an example where the symptoms fluctuate over time because the extent of the compression of the spinal nerve root may vary due to inflammation on the nerve root. Symptoms may subside if the inflammation reduces and return because the injured disc is exacerbated by innocuous activities”.[22]

   [22] David v Allianz Insurance Australia Limited [2021] NSWPICMP 227.

4. The claimant submits he has demonstrated two or more signs of radiculopathy as follows:

   dural tension                 yes – frequent headaches reported referred from the back of the head to the forehead;

   motor weakness           yes – empty and full can test was positive with significant weakness noted on the left at 2/5 (report of Physio Interactive dated 7 June 2023);

   sensory loss                  yes – reported pain referred down left shoulder and arm (clinical notes of Physio Interactive on 15 February 2023);

   “Severe pain neck refers to arms numbness” – (clinical notes of Al-Zahraa Medical Centre on 23 November 2022);

   tendon reflexes            unknown;

   muscle atrophy             no;

   imaging studies             yes (CT scan cervical spine 2 December 2020);

   electrodiagnostic          no.

5. The claimant submits a thorough neurological examination would have established the presence of radiculopathy.

Right knee

1. The claimant disputes the finding of Medical Assessor Home that he did not sustain injury to the right knee. It is noted the right knee was referenced in the application for personal injury benefits.

2. The claimant acknowledges right knee pain prior to the accident noting radiology on 21 April 2019 revealed an ACL tear. The claimant underwent an arthroscopy in 2019 and made further complaints of right knee pain in 2011, 2017 and 2018. The last complaint was on 17 October 2019, four years prior to the accident.

3. The claimant submits it is apparent from the MRI of the right knee of 2 April 2023 that the accident aggravated, accelerated and/or exacerbated the right knee injury where there was no complaint from October 2018 until the accident, the claimant reported the onset of right knee pain following the accident and it was recorded in the claim form and in the initial certificate of capacity dated 7 December 2023.

Insurer’s submissions

Threshold submissions

1. The insurer provided undated submissions in respect of the threshold injury dispute.[23]

   [23] Insurer’s bundle p 4.

2. The insurer submits the claimant had pre-accident conditions involving his low back and knees. It is submitted that the accident has not caused any significant change in the claimant’s health picture.

3. The claimant had a long history of osteoarthritis although few investigations. The insurer notes that in November 2017 the claimant had severe pain in his right knee, low back and neck. In January and June 2019, it was recorded that the claimant had severe joint pain with a diagnosis of osteoarthritis. In April 2022 it was noted that the claimant had chronic back pain,… neuropathy and osteoarthritis. The insurer submits the claimant’s symptoms were deteriorating in the approach to the accident. In September 2022 it was recorded that the claimant was struggling with function and mobility. The insurer notes the prescription regime of Celebrex, Panadeine Forte, Endone and Lyrica which existed for many years pre-accident.

4. The insurer notes the accident was a rear end collision with photographs merely depicting minor panel damage.

Right knee

1. The claimant had pre-accident complaints in the right knee. On 17 October 2018 the claimant reported severe pain in both knees. He was reported to be tender in both knees and had a reduced range of motion. On 3 December 2019 the claimant had an MRI of the right knee which demonstrated full thickness tears of the ACL of degenerative origin. Mr Mourtada consulted his general practitioner (GP) on 19 August 2022 about right knee pain which was said to be aggravated by standing for prolonged periods of time. It was suggested if the symptoms persisted imaging might be required, although that did not ultimately take place until after the accident.

Shoulders

1. The insurer submits the left shoulder pathology is not accident related.

2. Whilst the application nominates both shoulders the insurer notes the claimant’s submissions have only identified relevant pathology in the left shoulder.

3. The claimant reported left shoulder pain in January 2016 when it was tenderness and reduced range of motion was identified.

4. Whilst the claimant initially reported shoulder pain an ultrasound failed to demonstrate evidence of tearing. The symptoms became increasingly left sided, and an MRI demonstrated a chronic transvers/oblique intrasubstance tear.

Cervical spine

1. The insurer notes that on 6 September 2022 it was recorded that the claimant was now having neck pain.

2. The insurer submits that the pathology and resultant symptomology predated the accident.

Lumbar spine

1. The claimant has a long history of chronic low back pain with neuropathic symptoms. The insurer notes the claimant first reported low back pain in November 2011. On 19 March 2013 severe low back pain was reported and throughout 2013 and 2014 the claimant reported low back pain which was reported to be severe and said to include neuropathic pain.

2. CT scans from 2014 revealed various disc bulges in the lumbar spine. The claimant had a further CT scan in May 2015 which revealed canal stenosis at L3/4 and L4/L5.

3. The claimant had CT nerve root injections in 2015 with no improvement. In 2018 and 2019 the claimant reported severe lower back pain.

4. In December 2018 the claimant fell off a ladder onto his back. In 2020 it is reported the claimant had symptoms from an accident two years prior, which is presumably this accident. The insurer submits that this incident was far more severe than the motor accident.

5. The insurer notes imaging on 15 July 2020 revealed a compression fracture at L2 with a 20% loss of disc height and other degenerative changes. In October 2021 the claimant attended his general practitioner and reported severe pain with referred symptoms into the legs. A possible diagnosis of radiculopathy was recorded.

Review submissions.

1. The insurer provided submissions dated 8 May 2024 in response to the application for review.[24]

   [24] Insurer’s bundle p 1.

Left shoulder

1. The insurer concedes that the pathology in the claimant’s left shoulder would not be classified as a threshold injury but submits the pathology is not accident related.

2. The insurer submits Medical Assessor Home provided clear reasons for his determination that the shoulder pathology was degenerative in nature having regard to the specific nature of the tear as observed on the MRI imaging and the circumstances of the accident.

3. The insurer concedes the claimant reported bilateral shoulder pain following the accident and accepted there were symptoms in the left shoulder which were accident related.

4. The insurer submits that Medical Assessor Home correctly concluded that if there was a traumatic tear of the left shoulder capsule caused by the accident the claimant would have reported severe pain within a day of the accident. In this case the insurer notes the claimant did not report severe pain until much later.

5. The insurer also notes there was material within the clinical notes of Al Zahra Medical Centre to suggest the claimant had a left shoulder injury prior to the accident.

Cervical spine

1. The insurer submits the claimant’s position is merely a disagreement about the conclusion reached by the Medical Assessor absent any evidence of a reviewable error.

2. The insurer notes that at paragraph 26 of his submissions the claimant proceeded to extract references to referred symptomology in the available clinical notes and then allocates those references to a test for verifiable radiculopathy.

3. However, the insurer submits Medical Assessor Home obtained a thorough history of the claimant’s referred symptoms (including numbness and triggering) which he acknowledged were intermittent. Despite appropriately considering this symptomology he did not accept that there was evidence of verifiable radiculopathy.

Right knee

1. The insurer notes, as acknowledged by Medical Assessor Home that it was not until he completed the claim form that the claimant identified right knee pain.

MEDICAL EXAMINATION

1. Mr Mourtada was examined by Medical Assessor Gibson in her rooms on 4 October 2024. He attended the assessment unaccompanied. He brought no imaging studies with him to the appointment.

Past history

1. Mr Mourtada confirmed he had suffered with low back pain for about 10 years prior to the accident, and he was still symptomatic up until the time of the accident. The pain had come on spontaneously, in the absence of any prior injury.

2. He said that he had been in receipt of the Disability Support Pension for about eight years prior to the accident. This benefit related to both his low back condition as well as his mental health.

3. In 2011, he underwent a right knee meniscectomy. This had followed an injury to the right knee while playing soccer. He understood that he had subsequently developed some arthritic changes in the knee.

4. Medical Assessor Gibson asked Mr Mourtada about the reference to left shoulder complaints that was recorded by his GP in 2016. He had no recollection of this pain apart from remembering that Medical Assessor Home had referenced it.

5. Mr Mourtada had a cardiac stent inserted in 2019 or 2020, but subsequently he had no cardiac issues.

6. Prior to the accident, Mr Mourtada had been taking Celecoxib (generally one tablet most days), Pregabalin, Mirtazapine, Esomeprazole, Fluoxetine and Rosuvastatin. Following the accident, the Pregabalin had been ceased and he was prescribed Amitriptyline instead. He had also ceased taking Mirtazapine and he had been taking Celecoxib on a more regular daily basis.

Occupational history

1. Mr Mourtada was born in Lebanon. He finished year 9 at school and then worked in a security job. For a time, he had lived in Africa where he managed a restaurant owned by a cousin.

2. He then returned to Lebanon for 12 months prior to departing for Australia in 1986/7.

3. Mr Mourtada had initially worked as a factory hand for one to two years in a company making doors. He then secured a job on the "school run," a government paid position, where he was driving children to and from school. Between 2000 and 2012, Mr Mourtada had a mixed business shop. He then worked in a light duties job as a painter in or around 2016/17.

History of the motor accident

1. Mr Mourtada said that he had been driving a Toyota Kluger 7-seater 4-wheel drive with his seatbelt fastened. His wife was in the front passenger seat and his nephew in the rear driver’s side. He was stopped at traffic lights when a 4-wheel drive collided with the right rear side of his vehicle and sideswiped his door such that he was jammed inside his car until the other vehicle was moved. Police had attended. No ambulance attended. Mr Mourtada was able to drive his car home.

2. There were no immediate symptoms. Mr Mourtada had no recollection of any marks or bleeding or bruising of his right knee.

3. Mr Mourtada said that by the following day he felt uncomfortable, “all over” his body. He visited Dr Ismail at Al-Zahraa Medical Centre in Arncliffe. He said at that stage he had neck, low back and left greater than right shoulder pain.

Current symptoms

1. Mr Mourtada reported central neck pain which radiates to the back of his head and spreads over his forehead. The pain is there most of the time, averaging 8/10 severity. His neck is stiff at times. The neck pain spreads to both arms, left greater than right, and a global distribution was outlined.

2. He said his left shoulder is "very sore." He cannot lift anything heavy. He localised the pain as being particularly over the left acromioclavicular (AC) joint, whereas his right shoulder is "fine."

3. When he was asked why his GP recorded more significant complaints pertaining to the right shoulder following the accident the claimant suggested he mixed the two shoulders up.

4. There is central low lumbar pain radiating to the left. The pain spreads to the left buttock, left posterior thigh and left mid-calf. The pain also spreads into the right leg but only as far as the thigh. He said there was numbness of his left, but not his right leg in a similar distribution.

5. There is left knee discomfort, and he indicated the pain as being felt over the medial and lateral joint lines. There is a feeling of his left knee giving way at times. He doesn’t notice any swelling.

Current treatment

1. Physiotherapy was ceased by the insurer in November 2023 as was psychological therapy.

2. He takes Celecoxib, Amitriptyline, Esomeprazole, Fluoxetine and Rosuvastatin on a daily basis.

3. There was no other current treatment.

Activities and restrictions

1. Mr Mourtada lives with his wife and 20-year-old son in a single-story house with no stairs to climb. They have five adult children living independently.

2. He said he drives some of the time, in fact, the same vehicle involved in the accident.

3. He is independent in self-care. His wife and daughter do the chores as he "prefers to rest."

Physical examination

1. Mr Mourtada weighed 105kg and was 172cm tall. He was uncomfortable during the course of the consultation due to reported back pain, so he frequently stood up from his seat.

2. On examination of the neck, there was tenderness over the lower cervical spine, particularly over C7, the pain spreading to the left trapezius and to the right side of the neck. Flexion was half normal, extension one-third normal, lateral flexion to the left half normal, to the right normal, and he described tightness when turning to the left. Rotation was two-thirds normal to the right, one-third normal to the left. There was some guarding noted with neck movements particularly with movements to the left.

3. On examination of the upper limbs, circumferential measurements were consistent with right-hand dominance. There was global reduction in sensation encompassing the entire left arm and hand. There was triggering of the left middle finger. There was normal upper limb power and reflexes bilaterally.

4. On examination of both shoulders, there was no right shoulder tenderness. There was tenderness over the left trapezius and left acromioclavicular joint. Active shoulder moments were as follows:

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	170°	145-160°
Extension	50°	40°
Internal Rotation	80°	70°
External Rotation	90°	80°
Abduction	180°	160-170°
Adduction	60°	50°

1. On examination of the back, there was tenderness over the lower lumbar region, more to the left. Flexion and extension two-thirds normal, lateral flexion two-thirds normal, rotation two-thirds normal bilaterally. There was mild guarding with extension.

2. On examination of the lower limbs, circumferential measurements were equal, therefore, there was no muscle wasting. Straight leg raise was to 70° on the right with complaints of knee pain and 60° on the left with complaints of back pain.

3. Neurotension signs were negative bilaterally. Lower limb power and reflexes were normal bilaterally.

4. On examination of both knees, there was tenderness over the medial and lateral joint lines. There was no crepitus. There was no instability demonstrated. Active knee movements were as follows:

Knee movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	110°	120°
Extension	0 °	0 °

1. On examination of both hips, movements were to the normal range bilaterally.

PANEL OPINION

Diagnosis, causation and threshold

1. In Briggs Wright J also reminded us that the relevant legal test in relation to causation does not require scientific certainty.[2] His Honour stated at [70]-]72]:

   [2] Briggs [2022] NSWSC 372.

   “70.   This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce [2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):

   ‘138 Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:

   ‘An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference’.’

   71.    The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 as follows, at 242:

   ‘... it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.’

   72.   Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].”

Cervical spine

1. Mr Mourtada was involved in the subject accident on 3 November 2022. There were contemporaneous records of tenderness in the neck, lower back and both shoulders from the notes of GP, Dr Ismail dated 4 November 2022.

2. The Application for personal injury benefits dated 14 December 2022 referenced injury to the low back, neck, the right knee, both shoulders and hips.

3. At assessment by Medical Assessor Gibson there were clinical findings consistent with soft tissue injury to the neck, but no radiculopathy was demonstrated.

4. The Panel refers to the claimant’s submissions. The Panel refers to cl 5.8 of the Guidelines which sets out the clinical signs which denote radiculopathy and mandates the presence of two or more of those signs on examination. Whilst the Panel is familiar with the decision of David v Allianz Insurance Australia Limited[25] the Panel does not agree that the signs outlined by the claimant constitute two or more signs of radiculopathy where there is no evidence that either the alleged muscle weakness or the sensory loss is anatomically localised to an appropriate spinal nerve root distribution.

   [25] David v Allianz Insurance Australia Limited [2021] NSWPICMP 227.

5. In the absence of radiculopathy and in accordance with s 1.6 of the MAI Act and cls 5.7, 5.8 and 5.9 of the Guidelines the Panel finds the soft tissue injury of the cervical spine is a threshold injury.

Lumbar spine

1. Mr Mourtada had a history of chronic back pain dating back to 2013. He had undergone nerve root injections in 2015 with no improvement. A CT of the lumbosacral spine of 11 March 2015 revealed central canal stenosis at L4/5 and L3/4 and a further CT on 15 July 2022 revealed an anterior compression fracture of L2 with a 20% loss of anterior vertebral body height possibly caused by a fall from a ladder in 2020. On 6 September 2022 Dr Jaffer reported chronic back pain impacting Mr Mourtada’s function and mobility.

2. On 4 November 2022 Dr Ismail diagnosed injury to the lower back caused by the accident and Mr Mourtada referenced injury to the low back in the Application for personal injury benefits dated 14 December 2022.

3. When assessed by Medical Assessor Gibson her clinical findings were consistent with soft tissue injury to the lumbar spine but without radiculopathy.

4. Whilst Mr Mourtada had a history of chronic back pain the Panel finds the accident caused soft tissue injury to the lumbar spine, aggravating the pre-existing condition. The compression fracture at L2 was pre-existing and not caused by the accident.

5. In the absence of radiculopathy and in accordance with s 1.6 of the MAI Act and cls 5.7, 5.8 and 5.9 of the Guidelines the Panel finds the soft tissue injury of the lumbar spine is a threshold injury.

Left shoulder

1. The Panel agrees if the chronic transverse/oblique intrasubstance labral tear identified in the MRI of the left shoulder of 9 May 2023 was caused by the accident it would constitute a non-threshold injury. However, the aetiology of the tear is uncertain.

2. Other than a complaint of left shoulder pain on 1 January 2016 when tenderness and reduced range of motion was identified there is no other complaint reported prior to the accident.

3. On 4 November 2022 Dr Ismail diagnosed injury to both shoulders caused by the accident and Mr Mourtada referenced injury to both shoulders in the Application for personal injury benefits dated 14 December 2022.

4. The Panel notes that the initial complaints suggest the right shoulder was more problematic than the left. On 4 November 2022 Dr Ismail identified pain in both shoulders, right greater than left and on 23 November 2022 he reported severe right shoulder pain. Radiological investigations, namely an X-ray and ultrasound were conducted of the right shoulder on 2 December 2022.

5. Dr D’Silva reported ongoing pain in the left shoulder on 30 January 2023 and Mr Mourtada received physiotherapy treatment for bilateral shoulder pain. In his report dated 7 June 2023 Mr Zhao reported Mr Mourtada complained of a sharp pain located deep and anteriorly at the bilateral shoulder joint, left worse than right.

6. The Panel finds it difficult to accept Mr Mourtada’s conclusion that Dr Ismail mixed up the shoulders when he said the pain was worse on the right than the left, particularly where the only early imaging was to the right shoulder. The ultrasound would have required the application of gel to the shoulder, and it seems inexplicable that the claimant would not have realised the wrong shoulder was being investigated and informed both the radiologist and his GP. Furthermore, if there had been significant complaints relating to both shoulders the GP would have referred the claimant for an X-ray and ultrasound of both shoulders. That did not occur, and the only imaging was to the right shoulder.

7. Whilst the Panel is cognisant of the test for causation as discussed in Briggs the Panel is also cognisant of the fact that in the claimant’s age group a labral tear may be an incidental finding.

8. The Panel finds if the labral tear had been an acute injury caused by the accident there would have been more immediate complaints of pain and restriction of movement.

9. The first record of complaint specifically addressing left shoulder pain was when the claimant saw Dr D’Silva on 30 January 2023.

10. The first imaging of the left shoulder was not until 9 May 2023 when the MRI disclosed the labral tear. The Panel notes the acute pathology seems to be related to the AC joint and the labral tear an incidental finding. Significantly, the radiologist commented that the tear was of “doubtful significance currently”.

11. On examination Medical Assessor Gibson observed symptoms relating to the AC joint and not the glenohumeral joint where the labrum is located.

12. The Panel finds, on the balance of probabilities, the labral tear disclosed on the MRI scan of 9 May 2023 was an incidental finding and not caused by the accident.

13. The Panel finds the claimant sustained a soft tissue injury to the shoulder and possibly to the AC joint caused by the accident. By definition this is a threshold injury.

Right shoulder

1. On 4 November 2022 Dr Ismail diagnosed injury to both shoulders caused by the accident and Mr Mourtada referenced injury to both shoulders in the Application for personal injury benefits dated 14 December 2022.

2. A right shoulder ultrasound of 2 December 2022 diagnosed bursitis.

3. On examination by Medical Assessor Gibson Mr Mourtada described his right shoulder “as fine”. Medical Assessor Gibson did not identify any tenderness or restriction of movement on examination.

4. The Panel is satisfied the claimant sustained a soft tissue injury to the right shoulder caused by the accident, however, that injury has now resolved.

5. Accordingly, the soft tissue injury to the right shoulder constitutes a threshold injury.

Right knee

1. Mr Mourtada had a longstanding history of complaints pertaining to his right knee. On 26 November 2017 Dr Ismail reported severe pain in the right knee and an inability to fully extend the knee. On 17 December 2018 Dr Ismail reported severe pain and tenderness in both knees and an MRI on 5 May 2019 demonstrated a full thickness ACL tear.

2. On 19 August 2022 Dr Ismail reported Mr Mourtada was troubled by knee pain, worse on the right and aggravated by walking or standing for too long.

3. Whilst Dr Ismail did not reference any complaints relating to the right knee when he saw the claimant on 4 November 2022 and again on 23 November 2022 his Certificate of capacity/certificate of fitness dated 7 December 2022 included the right knee as an accident related injury. In his Application for personal injury benefits dated 14 December 2022 Mr Mourtada referenced injury to the right knee.

4. On 10 February 2023 Mr Zhao, physiotherapist diagnosed “right knee pain – reaggravation of meniscal injury” and in a report dated 7 June 2023 he reported the right knee pain was intermittent but aggravated by prolonged weight bearing.

5. While Mr Mourtada did not describe anything suggestive of acute injury or direct blow to the right knee the Panel notes the collision was with the right side of his vehicle, and his door was sideswiped.

6. The first reference to right knee pain was 7 December 2022 about four weeks post-accident and it was referenced in the Application for personal injury benefits dated 14 December 2022.

7. The Panel finds had there been any accident related internal derangement of the right knee this would have been apparent acutely. The findings of the MRI of the right knee of 9 May 2023 more likely represent progression of degenerative change relating to the past meniscectomy.

8. However, where there was no complaint relating to the right knee from October 2018 until the accident and the claimant reported, albeit four weeks later, the onset of right knee pain following the accident the Panel finds the claimant has sustained a soft tissue aggravation of the underlying right knee condition.

9. The soft tissue injury to the right knee is a threshold injury.

CONCLUSION

1. The Panel revokes the certificate of Medical Assessor Home dated 19 March 2024 and issues a new certificate certifying the following injures caused by the accident were threshold injuries:

   (a)    cervical spine – soft tissue injury;

   (b)    lumbar spine – soft tissue injury;

   (c)    left shoulder – soft tissue injury;

   (d)    right shoulder – soft tissue injury, and

   (e)    right knee – soft tissue injury.