Mousa v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPICMP 542
•25 July 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Mousa v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 542 |
CLAIMANT: | Vyulet Mousa |
INSURER: | Insurance Australia Group Limited trading as NRMA Insurance |
REVIEW PANEL | |
MEMBER: | Terence Stern OAM |
MEDICAL ASSESSOR: | Christopher Oates |
MEDICAL ASSESSOR: | Margaret Gibson |
DATE OF DECISION: | 25 July 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); claimant was injured in a motor vehicle accident; medical dispute arose as to whether the physical injuries sustained were threshold injuries; the claimant sought a review of the Medical Assessment under section 7.26; Review Panel conducted an examination of the claimant; Held – MAC revoked; Review Panel determined that the injuries to the claimant’s cervical spine, lumbar spine, left hip, and left shoulder were soft-tissue injuries and threshold injuries for the purposes of the Act; Review Panel determined the injury to the right shoulder was a non-threshold injury for the purposes of the Act. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate of Medical Assessor Mohammed Assem of 11 December 2024 and substitutes the determination that the following injuries caused by the accident: · cervical spine; · lumbar spine; · left hip, and · left shoulder are Threshold Injuries for the purposes of the Act. 2. The Review Panel revokes the certificate of Medical Assessor Mohammed Assem and substitutes the determination that the following injury caused by the accident: · right shoulder is a Non-Threshold Injury for the purposes of the Act. |
STATEMENT OF REASONS
INTRODUCTION
The claimant, Vyulet Mousa (Ms Mousa), was injured in a motor vehicle accident on 2 November 2021 (the accident) when the vehicle in which she was a passenger was rear-ended by another vehicle.
Insurance Australia Limited ABN 11 000 016 722 trading as NRMA Insurance (the Insurer) was the Comprehensive Third-Party insurer.
An ambulance was called to the scene, but Ms Mousa declined to be transferred to Hospital. The vehicle, which was driven by her son, was towed.
Ms Mousa alleged that she injured her back, shoulders, and left hip.
Medical Assessor Mohammed Assem assessed Ms Mousa for the Personal Injury Commission (the Commission) on 10 December 2024 and he issued his Certificate the next day. He certified that the following injuries:
· cervical spine – soft tissue injury;
· right shoulder – soft tissue injury;
· lumbar spine – soft tissue injury, and
· left hip – soft tissue injury
were all caused by the accident but were threshold injuries for the purposes of the Motor Accident Injuries Act 2017 (the Act).
A medical dispute about whether Ms Mousa’s injuries were threshold injuries has arisen.
Ms Mousa lodged an application with the Commission seeking a review.
On 17 February 2024, a delegate of the President of the Commission determined there was reasonable cause to suspect a material error in the assessment. This Review Panel (the Panel) was convened to conduct the Review.
LEGISLATIVE FRAMEWORK
Jurisdiction
The Act provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales, a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents.
While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the Act, there are disentitling provisions and limits to the amount and extent of benefits and compensation available. One of these restrictions is that if the only injuries sustained by the injured person are “threshold” injuries, the injured person cannot receive statutory benefits beyond 52 weeks after the accident and cannot recover damages.
Threshold injury
A threshold injury is defined in s 1.6(1) of the Act as a “soft tissue injury”. Section 1.6(2) of the Act defines a soft tissue injury to mean:
“[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.”
If a person injured in a motor accident sustains soft tissue injuries only then, unless one of those soft tissue injuries falls within the exclusion contained in s 1.6(2) (highlighted in italics in paragraph 9 above), the injured person’s statutory benefits cease in accordance with ss 3.11 and 3.28 of the Act.
Section 1.6(4) provides that regulations may be made to deem a specified injury as a soft tissue injury or not a soft tissue injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) says that “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” is a threshold injury.
Clause 5.8 of the Motor Accident Guidelines (the Guidelines) defines radiculopathy and adopts the method of assessment provided for in the whole person impairment chapter of Part 6 of the Guidelines. Clause 5.9 then provides:
“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.”
In summary, if the person injured in the car accident sustains a spinal nerve injury this is a Threshold injury unless that particular nerve injury manifests in two of the five signs of radiculopathy.
Method of assessment
Part 5 of the Guidelines contain the procedure for assessing whether an injury resulting from the motor accident is a threshold injury for the purposes of the Act. In respect of the medical assessment of whether an injury is a threshold injury or not, 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.”
Clause 5.4 suggests that the method of assessment set out above appears to be directed to the insurer and the medico-legal or other experts retained by the insurer.
There are no other provisions with respect to the assessment of threshold injuries by claimants, their medio-legal experts or Medical Assessors. The Panel is proceeding on the basis that the provisions in Part 5 apply in this Review.
Dispute resolution
If there is a dispute about whether an injured person’s injuries are threshold injuries or not, that matter is declared a medical assessment matter which may be referred to the Commission for determination.
Chapter 7, Division 7.5 of the Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Assem’s, further medical assessments and the Review of medical assessments by this Panel.
Applications for review of a medical assessment under s 7.26 are made to the President of the Commission on grounds that the assessment “was incorrect in a material respect” (s 7.26(1)). If the President, or his delegate is satisfied “there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect” then the President arranges to the application to be referred to a review panel consisting of a member of the Commission and two medical assessors (s 7.26(2) and (2B)).
The review is not necessarily confined to the issues raised in the application (or the reply) but is “a new assessment of all the matters with which the medical assessment is concerned” (s 7.26(3A)).
Rule 128 of the Personal Injury Commission Rules 2021 (the Rules) permits the Panel to determine its own proceedings and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.
ASSESSMENT UNDER REVIEW
Medical Assessor Mohammed Assem examined Ms Mousa on 10 December 2024 and issued his certificate the next day. The Panel summarises his findings:
[1]-[2] Medical Assessor Assem set out the background of the threshold injury dispute and outlined the injuries referred to him for assessment:
·cervical spine neck pain – aggravation of underlying degenerate disc disease;
·right shoulder – aggravation of supraspinatus tear;
·right shoulder – direct cause or aggravation of subscapularis tear;
·left shoulder pain – soft tissue;
·lumbar spine – thecal sac tear, radiculopathy L3 and L4 nerve root, and
·left hip.
[3]-[4] Medical Assessor Assem summarised the submissions from both the parties.
[5]-[6] Medical Assessor Assem noted that he had considered the documents provided in the application and reply.
[7] Medical Assessor Assem noted that Ms Mousa was accompanied by an Assyrian speaking interpreter to the assessment.
[8] Medical Assessor Assem set out Ms Mousa’s pre-accident medical history, noting that she is 73-years-old, migrating to Australia in 1995. She worked as a cleaner in her husband’s business until retirement in 2007. She lived in Abbotsbury with her husband, son, and daughter-in-law. Before the accident, Ms. Mousa managed her daily life independently with occasional assistance from her family. She performed light household chores and cooking, though she sometimes was helped by her son and daughter-in-law for more strenuous tasks. In October 2003, she sustained a cervical spine injury in a motor vehicle accident. Radiological imaging revealed cervical disc bulges at levels C4/5, C5/6, and C6/7, with associated spondylitic changes but no acute bony injury. This injury caused chronic neck pain and intermittent headaches, managed through periodic physiotherapy and analgesia. Her lumbar spine was also affected by degenerative changes, identified in imaging studies conducted in November 2008, which revealed disc space narrowing at multiple levels (L2/3, L3/4, L4/5, and L5/S1) with prominent spondylitic changes. These lumbar issues caused persistent lower back pain that occasionally radiating to her legs, particularly during prolonged standing or bending. She managed these symptoms with physiotherapy, anti-inflammatory medications, and modification of her physical activities. Ms. Mousa had a documented history of right knee osteoarthritis. On November 10, 2008, X-rays of her knee revealed minimal narrowing of the medial compartment, degenerative changes around the tibial intercondylar spines, and osteophytic lipping of the femoral condyle. She was diagnosed with rotator cuff tendonitis in her right shoulder in 2011. Although imaging did not reveal any tendon tears, the condition caused periodic discomfort, managed effectively with physical therapy and home exercises. By 2017, her chronic conditions, particularly in the cervical and lumbar spine, were stable and did not significantly impact her ability to perform light daily activities, provided she avoided strenuous tasks.
[9] Medical Assessor Assem provided a history of the accident of 2 November 2021, noting that Ms Mousa was a front-seat passenger in a Toyota Camry sedan driven by her son. The accident occurred as the vehicle was manoeuvring into a car park and was rear-ended by another car. At the time, Ms Mousa was wearing a seatbelt, and the airbags did not deploy. She experienced immediate pain in her lower back. Although she reported feeling something torn in her back, she was not overly concerned at the scene. Ms Mousa was in shock and declined to go to the hospital despite ambulance attendance. The ambulance transported her son to Fairfield Hospital, and the vehicle was later towed from the site.
[10] Medical Assessor Assem set out Ms Mousa’s history of symptoms and treatment following the accident, noting that after the accident she consulted her general practitioner, Dr Samy Erian, to discuss her injuries. During the consultation, Ms Mousa indicated that her main complaint was lower back pain, which she described as different from previous episodes due to new radiation into her left leg. Dr Erian documented her injuries, noting widespread discomfort. Upon specific questioning, Ms Mousa clarified that her right shoulder symptoms were pre-existing, and had worsened approximately one to two months after the accident. She denied any injury to her left shoulder. When asked about her neck, she reported severe neck pain that was present shortly after the accident and had increased in intensity over time. Dr Erian prescribed Panadeine Forte for pain relief and referred her for physiotherapy treatment. Imaging confirmed pre-existing cervical disc bulges at C4/5, C5/6, and C6/7, with acute exacerbation of symptoms consistent with the accident. In the lumbar spine, there was disc space narrowing at L2/3, L3/4, L4/5, and L5/S1, with evidence of spondylitic changes. An MRI scan of the right shoulder revealed supraspinatus and infraspinatus tendon tears and subacromial bursitis. She consulted Dr Ray Chin, orthopaedic surgeon, for persistent right shoulder pain. Dr Chin recommended corticosteroid injections as surgery was not indicated at the time. She also consulted Dr Al Khawaja recommended surgery for her lower back complaints.
[12]-[13] Medical Assessor Assem discussed Ms Mousa’s current symptoms and proposed treatment, noting that her primary complaint was lower back pain radiating into both legs, which she rated as 10/10 on the pain scale. She explained that since the accident, her lower back pain has significantly intensified and now included a radiating sensation that was absent before the accident. She reported walking with a stooped posture, requiring support from a trolley while shopping, a marked change from her pre-accident ability to walk upright. She also continued to experience severe neck pain, which she described as present before the accident but worsened significantly after the incident, with increased intensity and associated arm pain. Her right shoulder symptoms, which were pre-existing, have similarly worsened one or two months after the accident. She had difficulty elevating her right arm, restricting her ability to perform tasks that involve overhead movements. She takes Panadol or Panadeine Forte when needed. She recently completed five physiotherapy sessions.
[14]-[15] Medical Assessor Assem set out his clinical examination of Ms Mousa:
“Ms. Mousa appeared well and was not in visible physical distress. She moved with a normal gait but experienced difficulty standing from a seated position due to pain across her lower back. Her height is recorded as 158 cm, and her weight as 72 kg.
Cervical Spine
Examination of the cervical spine revealed tenderness on the right side with evidence of muscle guarding. Cervical movements were symmetrically restricted, with flexion and extension reduced to ½ of the normal range. Lateral flexion was symmetrical and reduced to ¾ of the normal range, while rotation was asymmetrically restricted, with greater limitation on the right compared to the left. These findings were consistent with spinal dysmetria. Neurological examination of her upper extremities was normal with normal power, tone, sensation and reflexes. There was no significant measurable difference in the circumference of his upper arms or forearms. Neural tension signs were negative.
Lumbar Spine
The lumbar spine reported tenderness across the lower back, and she maintained a slightly stooped posture during the examination. Lumbar movements showed flexion limited to her knees, while extension was restricted to ¼ of the normal range. Both lateral flexion and rotation were reduced to ½ of the normal range. She had difficulty climbing onto the examination couch. Neurological examination of the lower extremities revealed normal power, tone, sensation, and reflexes. Neural tension signs were negative, and there was no measurable difference in the circumference of her calves.
Shoulder and Upper Extremity Range of Motion
Active range of motion testing of the shoulders revealed significant restrictions in both shoulders, despite Ms. Mousa considering her left shoulder to be ‘normal.’ Repeated testing showed consistent findings as follows:
Movement
Right Shoulder (°)
Left Shoulder (°)
Forward Flexion
90
110
Extension
30
40
Abduction
80
100
Adduction
0
10
External Rotation
40
40
Internal Rotation
40
80”
[16]-[17] Medical Assessor Assem set out the documents and medical imaging/reports upon which he relied on for his assessment.
[18] He set out his diagnosis, causation and reasons which the Panel reproduces below:
[19] He noted that the following injuries were caused by the accident:
·cervical spine – soft tissue injury;
·right shoulder – soft tissue injury;
·lumbar spine – soft tissue injury, and
·left hip – soft tissue injury.
[20] He noted that the following injury was not caused by the accident:
·left shoulder.
[22] Medical Assessor Assem concluded that the following injuries were threshold injuries for the purpose of the Act:
·cervical spine – soft tissue injury;
·right shoulder – soft tissue injury;
·lumbar spine – soft tissue injury, and
·left hip – soft tissue injury.
SUBMISSIONS
Claimant’s submissions for threshold injury dispute of 28 August 2024
The Panel briefly summarises Ms Mousa’s submissions of 28 August 2024 by reference to paragraph numbers:
Procedural Matters
[2] On 21 February 2022, the insurer determined Ms Mousa’s injuries were minor. An internal review affirmed that decision on 5 April 2022.
[3] Ms Mousa submits the following injuries for assessment:
·neck pain – aggravation of underlying degenerative disc disease;
·right shoulder – aggravation of supraspinatus tear;
·right shoulder – direct cause or aggravation of subscapularis tear;
·left shoulder pain – soft tissue only;
·lumbar spine – thecal sac tear, radiculopathy of L3 and L4 nerve root, and
·left hip.
Submissions
[1] On 2 November 2021 around 11am, Ms Mousa was a front seat passenger in a vehicle driven by her son when the vehicle was rear-ended.
[2] An ambulance attended, but Ms Mousa declined hospital transfer due to fear of Covid exposure.
[3]-[4] She attended her general practitioner, Dr Samy Erian, the same day and reported right shoulder and lower back pain. She had been a regular patient of Dr Erian.
[5] She was previously injured in a 2004 accident as a pedestrian, sustaining injuries to her shoulder, neck, lower back, and PTSD.
Right Shoulder Injury – Subscapularis Tear and Supraspinatus Tear
[6] Ultrasound on 24 November 2021 three weeks post-accident showed subscapularis and supraspinatus tears.
[7] A pre-accident ultrasound dated 23 November 2012 showed a 7mm supraspinatus tear but no subscapularis tear.
[8] Clinical records from 22 February 2018 noted an impinged right rotator cuff, treated conservatively without ultrasound, and no symptoms were reported from 2018 until the 2021 accident.
[9] Ms Mousa’s right shoulder had recovered and was asymptomatic before the motor accident, which aggravated the prior injury.
[10] The 2 November 2021 clinical entry of Dr Erian records immediate right shoulder pain and limited abduction.
[11] Ms Mousa has continuously reported right shoulder pain post-accident, as documented in Dr Erian’s records.
[12] Ms Mousa submits the subscapularis tear was caused by the accident, as it was not seen in the 2012 scan.
[13] Alternatively, Ms Mousa submits the accident aggravated an asymptomatic right shoulder tear, causing current impingement and amounting to a non-threshold injury.
[14] Ms Mousa submits the supraspinatus tear, identified in the 24 November 2021 ultrasound, is to have been aggravated by the accident after being asymptomatic for at least four years.
Lower Back Injury – Thecal Sac Tear
[15] A contemporaneous report of lower back pain appears in Dr Erian’s notes dated 2 November 2021. Ms Mousa concedes there is a history of lower back pain.
[16] She had pre-accident lumbar spine issues with radiating pain, last reported on 18 December 2019 – nearly two years prior. It is submitted the accident aggravated an asymptomatic condition.
[17] A CT scan dated 24 April 2018 noted diffuse annular bulging at L3/L4 but no tear.
[18] A scan dated 24 November 2021 revealed a thecal sac tear at L3/L4 and L3 nerve root displacement.
[19] Ms Mousa submits that the thecal sac tear at L3 seen in 2021 was caused by the accident, as it was absent in the 2018 scan.
[20]-[22] As the injury involves a tear, it is submitted to be non-threshold/minor. Alternatively, if the tear pre-existed, it was aggravated by the accident, supported by increased consultations for lower back pain in Dr Erian’s records. She submits that her injuries from the accident are not threshold/minor injuries.
Insurer’s submissions for threshold injury dispute of 11 September 2024
The Panel briefly summarises the Insurer’s submissions of 11 September 2024 by way of reference to paragraph numbers:
Disputes
[2] The Insurer submits that “minor injury” was replaced with “threshold injury” under the Motor Accident Injuries Amendment Act 2022, effective from 1 April 2023.
[3] Ms Mousa’s application seeks a determination of whether she sustained threshold or non-threshold injuries due to the motor vehicle accident.
Background
[12] Ms Mousa was involved in a motor vehicle accident on 2 November 2021 on Restwell Road, Prairiewood NSW.
[13] An Application for Personal Injury Benefits was completed on 7 November 2021.
[14]-[15] A Liability Notice – girst 26 weeks was issued on 29 November 2021 accepting liability. A Liability Notice – after 26 weeks was issued on 21 February 2022, advising Ms Mousa’s injuries were threshold and denying statutory benefits after 26 weeks.
[17]-[19] Ms Mousa’s legal representative requested an internal review on 14 March 2022. The Insurer conducted an internal review and issued a Certificate on 5 April 2022. Ms Mousa’s legal representative has lodged an application to the Commission.
Prior injuries/illnesses
[20] Dr Samy Erian’s clinical records show attendances for lower back pain and lumbar disc disease since 2014 and right shoulder pain since December 2016.
[21] X-ray and ultrasound of the right shoulder on 23 November 2021 revealed acromioclavicular joint degenerative change and partial thickness supraspinatus tear.
Medical Evidence
[22] Dr Samy Erian issued a Certificate of Capacity dated 15 November 2021, diagnosing whiplash neck injury, spine soft tissue pain, lumbosacral pain, bilateral sacroiliac joint strain, left hip injury, and aggravation of lumbosacral disease.
[23] Imaging on 24 November 2021 showed shoulder osteoarthritis, subscapularis and supraspinatus tears, bursitis, lumbar spondylosis, multilevel disc disease, and canal stenosis at L3-4 and L4-5.
[24] A further Certificate of Capacity dated 22 February 2022 repeated these diagnoses and noted bilateral shoulder pain.
[25] Physiotherapist Chris Paradisis submitted an Allied Health Recovery Request dated 17 March 2022, diagnosing neck whiplash injury.
Threshold Injury - Physical Injuries
[26] The insurer disputes that Ms Mousa sustained non-threshold injuries in the accident.
[27] The insurer submits her injuries fall within the definition of threshold injury under:
(a) S 1.6(2) of the Act;
(b) Clause 4 of the Regulation, and
(c) Motor Accident Guidelines.
[28] The insurer submits there is no evidence of nerve injury or complete/partial rupture of tendons, ligaments, menisci, or cartilage.
[29] The 24 November 2021 imaging noted supraspinatus and subscapularis tendon tears; the Insurer submits these were pre-existing and documented in the 23 November 2021 imaging.
[30] Clause 5.5 of the Guidelines states threshold injury diagnoses must be based on clinical assessment. There is no evidence from the treating general practitioner or physiotherapist demonstrating spinal nerve root injury.
[31] The insurer submits Ms Mousa does not meet the radiculopathy criteria in cl 5.8, as there are not two or more qualifying clinical signs on examination.
[32] Accordingly, the insurer submits the physical injuries sustained in the accident are threshold injuries as defined by the Act.
Claimant’s submissions for review of 17 January 2025
The Panel briefly summarises Ms Mousa’s submissions of 17 January 2025 by reference to paragraph numbers:
Reasons for Review Application
[10] Ms Mousa submits there is reasonable cause to suspect Medical Assessor Assem’s certificate is materially incorrect based on the original Application, including:
(a)breach of procedural fairness – failure to respond to Ms Mousa’s submissions regarding pre- and post-accident right shoulder scans, and
(b)failure to consider relevant information – failure to accurately compare the pre- and post-accident shoulder imaging.
[13] Ms Mousa submits the alleged error is neither trivial nor insignificant and goes to key issues in the treatment dispute.
Right Shoulder Injury
[15] Ms Mousa relies on her submissions in [6] to [14].
[16] It was submitted that the subscapularis tear was caused by the accident, as it did not appear on the 23 November 2012 pre-accident ultrasound.
[17] Alternatively, it was submitted that the accident aggravated a previously asymptomatic rotator cuff tear, which is now causing impingement and constitutes a non-threshold injury.
[18] As to the supraspinatus tear identified on 24 November 2021, it was submitted that the accident aggravated a pre-existing but asymptomatic tear of at least four years’ duration.
[19] Medical Assessor Assem acknowledged the 2012 scan but failed to address or consider that it did not show a subscapularis tear, and in fact did not address the subscapularis tear at all.
[20] Ms Mousa submits that her right shoulder injury and/or aggravation should be assessed as a non-threshold injury, noting that a rotator cuff tear is not a threshold injury.
Insurer’s reply submissions of 12 February 2025
The Panel briefly summarises the insurer’s reply submissions of 12 February 2025 by way of reference to paragraph numbers:
Submissions on the Right Shoulder Injury
[7] Ms Mousa submits the Medical Assessor erred in finding the right shoulder injury is a threshold injury. The Insurer disagrees.
[8] Ms Mousa submits the Medical Assessor failed to consider the imaging of the right shoulder from 23 November 2012 and 24 November 2021.
[9] The ultrasound report dated 23 November 2012 noted a partial thickness tear of the supraspinatus tendon.
[10] The ultrasound report dated 24 November 2021 noted a supraspinatus tear but no subscapularis tear.
[11] The Medical Assessor acknowledged both imaging reports at Page 8 of the certificate:
·23 November 2012: 7mm partial-thickness supraspinatus tendon tear, and
·24 November 2012: degenerative AC joint changes, tendon calcification, no tendon tear.
[12] The Medical Assessor explained that differences in imaging results were due to variation in imaging techniques.
[13] The Medical Assessor considered the mechanism of injury, medical evidence, reported symptoms, and applied clinical judgment. He concluded that Ms Mousa sustained a soft tissue injury aggravating pre-existing pathology, with no acute traumatic pathology.
[14] The insurer submits the supraspinatus tendon tear pre-dates the motor vehicle accident and was not caused by it.
[15] At [17] of her submissions, Ms Mousa asserts the accident aggravated a previously asymptomatic tear causing impingement, which she claims is a non-threshold injury. The insurer submits that impingement is a threshold injury under the Act.
[16] The insurer submits the Medical Assessor clearly explained his reasoning.
[17] The insurer submits Ms Mousa has not identified any material error.
[18] The insurer submits the assessment was conducted in accordance with the Act and Guidelines and correctly determined that Ms Mousa sustained a threshold injury.
Claimant’s submissions of 4 June 2025
The Panel notes Ms Mousa’s submissions of 4 June 2025 as to the request of approval of documents of the MRI report dated 24 November 2021.
EVIDENCE BEFORE THE PANEL
Police report of 25 November 2021
The police report set out details of the crash summary as follows:
“On Tuesday the 2nd of November 2021 veh2 turned right on a green light onto Restwell road, Prairiewood. Veh2 then immediately turned left into a driveway when drv1 impacted into the rear of veh2. Details were exchanged on the scene however, drv2 attended Fairfield Hospital and was given oral paracetamol”
Application for Personal Injury Benefits dated 7 November 2021
In her application for personal injury benefits, Ms Mousa reported injuries to her right shoulder, neck, and back as a result of the motor vehicle accident on 2 November 2021.
Initial Certificate of Capacity/ Certificate of Fitness (Dr Erian, November 2021)
Listed injuries to the neck, lumbar spine, sacroiliac joint, left hip, and bilateral shoulders, including a diagnosis of a right rotator cuff tear. Past history noted lower back pain, reportedly managed with occasional paracetamol.
Pre-accident medical history physiotherapy referral (28 November 2012)
Dr Erian referred Ms Mousa for physiotherapy for suspected tendinitis and frozen right shoulder. At the time, imaging findings included: A partial-thickness tear in the supraspinatus tendon. Degenerative changes in the acromioclavicular (AC) joint. Ms. Mousa underwent a corticosteroid injection in her right shoulder approximately 12 months prior to February 2015, indicating prior treatment for shoulder pain.
X-rays (various dates)
Thoracic spine X-ray of 24 October 2003 showed slight left lateral flexion, reduced bony density, and spondylotic changes throughout the mid and lower thoracic spine. No recent bony injury; thoracic spondylosis noted.
Knee X-ray of 10 November 2008 showed minimal narrowing of the medial compartment, degenerative changes in knee joint margins, tibial intercondylar spines, and femoral intercondylar notch. Evidence of bilateral osteoarthritis.
Left hip X-ray of 5 April 2021 showed normal hip joint; no recent bony injuries.
Right Shoulder X-ray of 24 November 2021 showed degenerative changes in the acromioclavicular joint. Tendon calcification adjacent to the greater tuberosity. Ultrasound (24 November 2021): a 5mm insertional calcification of the tendon was noted, but no tendon tear was identified.
Ultrasounds of 23 November 2012
Ultrasound of right shoulder showed a 7mm partial-thickness tear in the supraspinatus tendon.
CT scans (various dates)
CT scan of lumbar spine of 15 January 2015 showed narrowing of disc spaces at L2/3, L3/4, L4/5, and L5/S1 with spondylotic changes. Degenerative lumbar spine changes; no acute injury.
CT scan of lumbar spine of 10 April 2021 showed the lumbar spine in left lateral flexion with spondylotic changes. Degenerative changes exacerbated by trauma.
MRI scan of 3 March 2023
MRI head showed no acute abnormalities.
RE-EXAMINATION BY THE PANEL
Medical Assessors Margaret Gibson and Christopher Oates examined Ms Mousa on behalf of the Panel via Microsoft Teams on 6 June 2025. Their findings are below.
Pre-accident medical history
Ms Mousa had been involved in a motor vehicle accident in 2003. She had injured her neck and she had also developed left shoulder pain. She said that she had also suffered psychological injuries. Cervical spine imaging done at the time had demonstrated multilevel disc bulges and spondylotic change. She was treated with physiotherapy and analgesics for the pain.
There was a prior history of low back complaint with imaging performed in November 2008, revealing multilevel disc space narrowing and spondylitic change. She said she had suffered with low back pain with occasional radiation to the legs. She had physiotherapy treatment and she had taken analgesics.
Ms Mousa had a procedure to both her knees in the 1970s while still in Iraq. It seemed she had pain and an effusion in both knee joints. She said her symptoms had come on due to repetitive squatting. There was no other history of knee complaint.
Ms Mousa said she had developed right shoulder symptoms around 2011, and she related this to her neck. An ultrasound was performed on 23 November 2012 on referral from her general practitioner, Dr Erian. This had demonstrated a 7mm partial-thickness tear in the supraspinatus tendon. She said that she had eventually recovered from her shoulder condition after taking Panadeine Forte, paracetamol and Mobic and receiving physiotherapy.
Relevant personal details
Ms Mousa was born in Iraq and came to Australia in 1995. She had worked as a cleaner in her husband's business and retired in 2007.
She lives in Abbotsbury with her husband, her son, her daughter-in-law and their four children.
She said she was totally independent and used to take care of all the domestic chores prior to the accident. She added that her daughter-in-law was busy enough with the four children.
Then, following the accident, she said she was no longer able to manage the cooking, the mopping or cleaning and had difficulties standing for any period or bending over due to her back.
She still drives, but only short distances.
Her son had been managing the outdoor chores prior to the accident, but as he had also been involved in the same accident and subsequently had surgery to his neck, back and left shoulder, they now must employ someone to care for the yard.
History of the accident
Ms Mousa had been a front seat passenger in a Toyota Camry sedan driven by her son. She had her seat belt fastened. He was entering into a car park when it was rear-ended by another vehicle. Ms Mousa said that after the accident she was "so scared I couldn't do anything." When asked how she had injured her right shoulder, she said that she didn’t know but she did recall their car had been severely jolted with the impact and she thinks that she had been "twisted as well." When asked she added that at the time of the impact both her hands were resting on her lap.
The Panel noted the photographs of the car which demonstrated what appears to be a significant rear-end impact. There was no history of any direct right shoulder impact with the inside of the vehicle. However, she did report there had been bruising over both of her hands. Taking this into account, it was likely she had pushed her hands out onto the dashboard at the point of impact, accounting for the right shoulder complaint.
An ambulance arrived and her son was conveyed to Fairfield Hospital. The car was towed. Ms Mousa had declined transfer to the hospital as she was "too scared to go to hospital." And at the time there had been no other immediate symptoms.
She visited Dr Samy Erian at about 4.00pm the same day. Dr Erian noted in his clinical records that the accident had been at 11.00am or 12.00pm that day and "her head whiplashed and pain down all the back to low back, right shoulder pain, pain radiating to the left leg." On examination, neck movements were full. Right shoulder abduction was limited but left shoulder movements were normal. There was tenderness over the entire spine and both Sacroiliac joints. Dr Erian had also recorded there was some nerve root irritation on the left side with straight leg raise and there was left hip irritation. He prescribed paracetamol and Panadeine Forte tablets and referred her for X-ray and ultrasound right shoulder, plain
X-ray left hip, thoracic spine, CT scan lumbar spine and Sacro-iliac joints.Ms Mousa said she had five sessions of massage/physiotherapy which had "helped a little bit." The treatment had been directed toward her right shoulder and low back although there was less improvement in the right shoulder. She also had some Chinese massage therapy.
She had later visited a specialist, Dr Balsam Darwish, and he had discussed cortisone injection to the back. This was not approved by the insurer and there seemed to be some doubt in her mind that it would help and therefore she did not proceed.
Dr Erian’s referral of November 2024, noted Ms Mousa had presented with low back pain and lower limb symptoms, and the accident having aggravated the pain. An MRI scan had shown spinal canal stenosis.
Dr Erian referred Ms Mousa to Dr Ray Chin 20 January 2022, noting bilateral shoulder pain and right shoulder subacromial bursitis, infraspinatus and supraspinatus tears, following the accident in November the previous year.
When asked about any our specialist referrals for the right shoulder, Ms Mousa responded that they had not obtained insurer approval, and could not afford to pay for a visit.
Due to her financial circumstances, she did not proceed with the consultation.
Current complaints
Ms Mousa reported ongoing right shoulder pain which she indicated was felt over the superior and lateral aspect of the right shoulder and into the trapezius region. Movements are restricted and she demonstrated only 90° of passive forward flexion of the right shoulder at assessment today. There was ongoing low back pain which spreads into the left hip region.
She also reported she is now having difficulty walking due to left leg pain. However, she did say that the low back pain, while worsening after the accident, had settled to a degree for a short while before becoming worse again.
She was asked about the history obtained by the original medical assessor who stated that she had said that her right shoulder symptoms were pre-existing but had worsened approximately one to two months after the accident. She maintained that she could not exactly recall when the right shoulder pain had become worse.
When asked about any other symptoms due to the accident, she said that she had had pain "all over my body" including bruising of thigh and both hands and some neck pain. However, on specific questioning, she said all of the symptoms apart from her low back and right shoulder had "gradually disappeared." She thinks these symptoms had resolved within six weeks of the accident.
Current treatment
Ms Mousa takes a Panadeine Forte tablet three times a day, two paracetamol tablets three times a day, one to two metoclopramide tablets per day and a medication for depression (she could not recall the name).
Summary and opinion
Ms Mousa is a 74-year-old woman injured in the accident on 2 November 2021. She reported multiple symptoms following the accident and these were noted by her general practitioner, specifically spinal and right shoulder pain. She maintained that all injuries had subsequently resolved apart from the low back and right shoulder.
The Panel accepted, based upon the contemporaneous evidence, that there had been injuries to the cervical and lumbar spine, both shoulders and left hip arising from the accident.
The cervical spine and lumbar spine injuries were soft tissue as there had been no evidence of radiculopathy and no injury to nerves or complete or partial rupture of tendons, ligaments, menisci or cartilage.
The injury to the left shoulder was also soft tissue as there was no complete or partial rupture of tendons, ligaments, menisci, cartilage and left hip.
In relation to the right shoulder, there had been immediate complaints following the accident. There was a plausible mechanism for the right shoulder injury. There were pre-and post-accident imaging, the latter showing new tears to the subscapularis and supraspinatus.
The Panel also noted there had been prior imaging of the shoulder in 2012 which had demonstrated a partial thickness tear of the anterior third of the supraspinatus tendon. However, there had been no tears of the subscapularis.
Comment
The Medical Assessors noted there were inconsistencies in the ultrasound report, in findings stating the subscapularis and supraspinatus tendons were not torn and retracted but, in the conclusion, there were subscapularis and supraspinatus tears.
The ultrasound right shoulder report dated 24 November 2021 initially supplied in the documents before the Panel and to the original Medical Assessor contained an internal inconsistency, in that, the body of the report stated “the subscapularis and supraspinatus tendons aren’t torn and retracted” whilst the conclusion stated “Subscapularis and supraspinatus tears.”
The Panel requested clarification from the parties and subsequently received a corrected version of the above report stating there was a voice activated typographical error, and the corrected line in the body of the above report should read “The subscapularis and supraspinatus tendons are torn and retracted.”
After receiving the corrected ultrasound report the Panel concluded there was a new rotator cuff tear of subscapularis tendon and worsening of the pre-existing partial thickness tear of the supraspinatus tendon, which more, likely than not, had resulted from the subject accident.
HOW THE PANEL DEALT WITH THE PARTIES’ SUBMISSIONS
Insurer’s submissions
The insurer made submissions of 12 February 2025 in respect of the right shoulder injury.
The Panel refers to the 23 November 2012 ultrasound scan of the right shoulder. This noted a partial thickness tear of the supraspinatus tendon.
“Findings:
Right Shoulder
Degenerative changes noted at the acromioclavicular joint with a small capsular effusion. Alignment appears normal at the glenohumeral and acromioclavicular joints. No rotator cuff tendon calcification is seen. No further bone, joint or soft tissue abnormality is seen relation the shoulder.
Ultrasound Right Shoulder
The long head biceps tendon was intact was normally situated. The tendon defined normally. A small tendon sheath effusion was present.
A 7 mm partial thickness intrasubstance tear of the anterior fibres of the supraspinatus tendon was noted. The remaining rotator cuff tendons show normal contour and echotexture.
Humeral head bony irregularity is noted at the insertion of the subscapularis tendon.
Degenerative change is noted at the acromioclavicular joint with mild capsular distension, The coracoacromial ligament is intact. The supraspinatus muscle defined normally. The subacromial bursa defined normally.
Dynamic scanning demonstrates shoulder movements to be painful with limited abduction and 40 degrees and restricted external rotation. No evidence of tendon or bursal bunching was seen.
Conclusion: Degenerative change noted at acromioclavicular joint. Partial thickness tear anterior third supraspinatus tendon.”
The insurer further submitted that the Ultrasound study of 24 November 2021 noted a supraspinatus tear but no tear to the subscapularis.
“ULTRASOUND RIGHT SHOULDER
Findings:
The long head of biceps tendon was intact and was normally situated. A trace of fluid was present within the tendon sheath. The subscapularis and supraspinatus tendons are not torn and retracted. The infraspinatus tendon was heterogeneous and thickened, indicating tendinosis. A 5 mm insertional intrasubstance calcification was present. Subacromial bursal thickening was present measuring 2 mm in depth. Degenerative change affects the AC joint margin. The coracoacromial ligament defined normally. Dynamic scanning demonstrates painful bursal bunching at 40 degrees abduction. External rotation was also reduced.
Conclusion: Glenohumeral and AC joint OA. Infraspinatus calcific tendinosis. Subscapularis and supraspinatus tears. Subacromial bursal thickening with bursal impingement.”
The Insurer commented at [11]:
“[11] The Assessor acknowledged both imaging reports at Pg.8 of the Certificate:
·23.11.2012: 7mm partial-thickness supraspinatus tendon tear
·24.11.2021: Degenerative AC joint changes, tendon calcification, no tendon tear”
The Insurer submitted at [14] that the tear to the supraspinatus tendon must have predated the accident and therefore was not caused by the accident.
The Panel, as noted in [71] above, took into account that in respect of the right shoulder there had been immediate complaints following the accident. Importantly, there was a plausible mechanism for the injury to the right shoulder, namely that Ms Mousa had recounted that she had been severely jolted with the impact, and she thought she had also been twisted while in the car. While there was no history of any direct right-shoulder impact while inside the vehicle, she did report that there had been bruising over both of her hands. It was likely that she had pushed her hands out onto the dashboard at the point of impact, accounting for the right-shoulder injury.
The Panel also considered the corrected version of the ultrasound right shoulder report dated 24 November 2021.
The Panel’s determination is that Ms Mousa sustained soft tissue injuries of:
• cervical spine;
• lumbar spine;
• left hip, and
• left shoulder.
Ms Mousa sustained a non-threshold injury to the right shoulder.
CONCLUSION
The Panel revokes the certificate of Medical Assessor Mohammed Assem of 11 December 2024 and substitutes the determination that the following injuries caused by the accident:
· cervical spine;
· lumbar spine;
· left hip, and
· left shoulder.
are threshold injuries for the purposes of the Act.
The Panel revokes the certificate of Medical Assessor Mohammed Assem and substitutes the determination that the following injury caused by the accident:
· right shoulder
is a non-threshold injury for the purposes of the Act.
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