Nicolaou v Allianz Australia Insurance Limited

Case •

[2025] NSWPICMP 345

•

19 May 2025

DETERMINATION OF REVIEW PANEL

CITATION:

Nicolaou v Allianz Australia Insurance Limited [2025] NSWPICMP 345

CLAIMANT:

Nicol Nicolaou

INSURER:

Allianz Australia Insurance Limited

REVIEW PANEL

MEMBER:

Susan McTegg

MEDICAL ASSESSOR:

Mohammed Assem

MEDICAL ASSESSOR:

Shane Moloney

DATE OF DECISION:

19 May 2025

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); causation; claimant suffered injury in an accident; dispute related to the assessment of whole person impairment (WPI) of cervical spine, right shoulder, and left shoulder; Medical Assessor (MA) assessed 0% WPI for cervical spine; shoulder injuries not caused by accident; Held – soft tissue injury to cervical spine assessed as DRE I or 0% WPI; injury to left shoulder caused by accident and assessed at 8% WPI; injury to right shoulder not caused by accident or due to over compensatory use; WPI assessed at 8%; MAC revoked; new certificate issued.

DETERMINATIONS MADE:  

Whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%

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

1.     The Review Panel revokes the Certificate of Medical Assessor Wing Chan dated
29 September 2023 and issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a whole person impairment of 8%:

·        injury to the cervical spine, and

·        injury to the left shoulder.

2.     The Review Panel finds the following injury was not caused by the accident:

·        injury to the right shoulder.

REVIEW PANEL REASONS FOR DECISION

INTRODUCTION

  1. On 29 November 2018 Nicos Nicolaou (the claimant) was the driver of a vehicle stationary at a traffic light when a truck crashed into the rear of his vehicle (the accident).

  2. Mr Nicolaou was 55 years of age at the date of accident and is now 62 years of age.

  3. Mr Nicolaou has brought a claim for common law damages under the Motor Accident Injuries Act 2017 (the MAI Act).

  4. Allianz Australia Insurance Limited (the insurer) is the relevant insurer with liability to pay any damages to Mr Nicolaou under the MAI Act.

  5. Section 4.11 of the MAI Act provides that there is no entitlement to damages for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%.

  6. This dispute is in relation to whether the degree of permanent impairment sustained by Mr Nicolaou as a result of the injury caused by the accident is greater than 10%. This constitutes a medical assessment matter pursuant to Schedule 2, cl 2 of the MAI Act.

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

    [1] Section 7.20 of the MAI Act.

  8. The dispute as to permanent impairment in respect of the claimant’s physical injury to the cervical spine and both shoulders was referred to Medical Assessor Chan. He issued a certificate dated 29 September 2023.

DOCUMENTS CONSIDERED BY THE REVIEW PANEL

  1. The Review Panel (Panel) issued a Direction to the parties on 2 October 2024 directing each party to upload to the portal an indexed and paginated bundle of all documents sought to be relied upon in the review.

  2. On 14 October 2024 the claimant uploaded to the portal a bundle of documents paginated from pages 1 to 1,399 (claimant’s documents). 

  3. On 25 October 2024 the insurer uploaded to the portal a bundle of documents paginated from pages 1 to 446 (insurer’s documents). 

  4. On 17 February 2025 in accordance with a direction from the Panel the claimant uploaded to the portal an Application to Lodge Additional Documents (ALAD) with the following:

    (a)    photographs of the claimant’s damaged vehicle;

    (b)    clinical notes of Eastbrooke Medical Centre, Carlton as of 3 February 2022, and

    (c)    clinical notes of Dr Aligiannis. 

  5. Notwithstanding the medical examination was scheduled to take place at 9.30am on
    15 April 2025 the insurer uploaded an Application to Lodge Additional Documents dated
    14 April 2025 paginated from pages 1 to 558 (ALAD 14 April 2025).  Whilst the records were not furnished in time to be considered prior to the medical examination the Panel proposes to admit these documents where they are treating records and having regard to the objects of the Commission to facilitate the just, quick, and cost-effective resolution of the real issues in the proceedings. Admission of these documents will also avoid the possibility of any further application on the basis these records were not considered by the Panel.

  6. The Panel notes that there are extensive records addressing the claimant’s physical and psychological injuries. The Panel has read the entirety of the medical records but only proposes to reference those records which are relevant to the dispute to be determined by the Panel.

RELEVANT LEGAL AUTHORITY

  1. Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).

  2. The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.[2]

    [2] Clause 1.2 of the Guidelines.

  3. Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:

    “6.6   Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:

    'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:

    1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.

    2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'

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

    6.7    There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”

CERTIFICATE OF MEDICAL ASSESSOR CHAN

  1. The injuries referred to Medical Assessor Chan for assessment as to permanent impairment were listed as follows:

    ·        cervical spine – injury, and

    ·        shoulder – injury to both shoulders.[3]

    [3] Claimant’s documents p 11.

  2. Medical Assessor Chan reported the claimant had no past history of injury to his left and right shoulders. He had a history of arthritis of the back and hands which were asymptomatic before the accident. He had neck pain in April 2018. In the two years before the accident
    Mr Nicolaou had worked as a labourer on a building site.

  3. Medical Assessor Chan noted the clinical records of Bankstown-Lidcombe Hospital and the records of Dr Aligiannis.  He reported the claimant attended physiotherapy for the first time on 20 December 2018 in respect of the neck. He reported the physiotherapist reported pain in the left shoulder for the first time on 21 January 2019.  He noted on 9 February 2019
    Dr Aligiannis reported pain in the left collar bone and referred the claimant for an X-ray and ultrasound of his left shoulder. Medical Assessor Chan reported the ultrasound of the left shoulder of 26 February 2019 disclosed a partial thickness tear of the supraspinatus anterior fibres. Medical Assessor Chan reported Professor Murrell diagnosed a left frozen shoulder. Mr Nicolaou underwent an arthroscopy of the left shoulder on 15 October 2019.

  4. Medical Assessor Chan noted that Dr Aligiannis reported on 2 March 2020 that his right shoulder had been hurting him for two days due to “over-use”. He reported a right shoulder ultrasound of 27 May 2020 revealed impingement and a partial thickness tear of the supraspinatus. Mr Nicolaou underwent surgery to repair the partial thickness tear of the right supraspinatus on 9 February 2021.

  5. Medical Assessor Chan reported a number of subsequent injuries:

    ·        a fall in August 2020 when descending stairs whilst attending an English class resulting in injury to the right elbow;

    ·        an occasion when he felt dizzy as he walked, grasped the branches of a nearby tree and bumped his head into the tree, and

    ·        on 7 May 2023 whilst picking a mandarin he felt dizzy, lost his balance and fell back onto his right elbow. He had an X-ray of his right elbow and an ultrasound of his right shoulder.

  6. On examination Medical Assessor Chan found no tenderness, muscle spasm or guarding in the cervical spine.  Active flexion and extension of the spine was one half of the normal range and active lateral flexion to the right and the left was one quarter of the normal range. Active rotation to the right and left side was half the normal range.  He found no dysmetria in the range of movement of the cervical range. He found upper limb reflexes were normal, touch sensation was better felt in the left upper limb compared to the right. Muscle tone was normal and equal in both upper limbs.  He found no non-verifiable radicular complaints in the upper limbs. Medical Assessor Chan found girth of the right and left arm equal except the girth of the right forearm was greater than the left consistent with right arm dominance.

  7. He reported active range of motion of both shoulders as follows:

Shoulder Movements

Active ROM Measured

RIGHT

Active ROM Measured

LEFT

Flexion

90°, 75°, 80°

100°, 85°, 80°

Extension

40°, 30°, 30°

30°, 30°, 30°

Adduction

20°, 15°, 20°

25°, 20°, 15°

Abduction

70°, 50°, 80°

70°, 80°, 70°

Internal Rotation

70°, 70°, 60°

70°, 80°, 80°

External Rotation

55°, 30°, 35°

40°, 50°, 40°

  1. In relation to the variable range of motion in both shoulders Medical Assessor Chan reported Mr Nicolaou said pain and stiffness in each shoulder had restricted his range of movement.

  2. Medical Assessor Chan concluded the claimant sustained a soft tissue injury to the cervical spine in the accident.

  3. Medical Assessor Chan noted no imaging of the left shoulder was performed at the hospital. No mention was made by Dr Aligiannis on 1 December 2018, 7 December 2018 or
    20 December 2018 of any complaint relating to the left shoulder. The physiotherapist failed to report any complaint of left shoulder injury or pain on 20 December 2018, and it was not until 21 January 2019, three weeks post-accident that a complaint of left shoulder pain was documented by the physiotherapist.  Medical Assessor Chan concluded if the left shoulder was injured in the accident Mr Nicolaou would have complained of symptoms in the first few days after the accident.  He concluded there was no direct injury to the left shoulder in the accident.

  4. Medical Assessor Chan noted there was no mention of any complaint or symptoms in the right shoulder in the ambulance record, in the discharge referral of the Bankstown-Lidcombe Hospital, in the general practitioner’s (GP) clinical notes from 1 December 2018 to
    21 May 2019 and in the physiotherapists notes in the days or within a week of the accident. He concluded the right shoulder was not injured in the accident.  Medical Assessor Chan stated that subsequent imaging of the right shoulder revealed age related degenerative changes in the right shoulder and partial thickness tear of the supraspinatus tendon.

  5. Medical Assessor Chan issued a certificate dated 29 September 2023 in which he concluded the following injury was caused by the accident:

    ·        cervical spine – soft tissue injury.

  6. He certified the following injuries were not caused by the accident:

    ·        left and right shoulder injury.

  7. Medical Assessor Chan found no muscle guarding, no dysmetria, no non-verifiable radicular complaints and no signs of radiculopathy in the cervical spine. He assessed a DRE cervicothoracic category I which equates to 0% WPI.

  8. Medical Assessor Chan stated he considered the Nguyen judgment in relation to the shoulders stating there was no documented injury to the shoulders in:

    ·        the ambulance record;

    ·        the discharge letter of Bankstown-Lidcombe Hospital;

    ·        the GP’s clinical notes in the immediate days and week after the accident, and

    ·        the physiotherapy record.

  9. He also noted pain to the posterior aspect of the neck was localised with no radiation to the upper limbs.  Hence, he found the restriction of movement of the shoulders was not related to the cervical spine injury. He found no assessable impairment of the shoulders.

REVIEW PROCEDURE

  1. The claimant has sought a review of the medical assessment of Medical Assessor Chan.

  2. The application was lodged on 21 August 2024 within 28 days of the date on which the Certificate of Medical Assessor Chan was made available to the parties.[4]

    [4] Section 7.26(1)(b) of the MAI Act.

  3. On 1 October 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 Panel.[5]

    [5] Section 7.26 of the MAI Act.

  4. 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.[6]

    [6] Rule 128 of the PIC Rules.

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

  6. On 5 December 2024 the Panel agreed an examination was necessary.

THE EVIDENCE

Other Medical Assessment Certificates

Certificate of Medical Assessor Cameron

  1. In a certificate dated 4 February 2024 Medical Assessor Cameron certified the following treatment and care related to the injury caused by the accident and was reasonable and necessary:

    ·        the payment of Deralin as recommended by Dr Shaun Watson, and

    ·        the gastroscopy and colonoscopy recommended by Dr George Daskalopoulos.[7]

    [7] Insurer’s documents p 427.

  2. Medical Assessor Cameron found that Mr Nicolaou sustained soft tissue injuries to multiple body parts, particularly to his cervical spine caused by the accident.

  3. Medical Assessor Cameron certified the payment of Mobic as recommended by Professor George Murrell related to the injury caused by the accident but was not reasonable and necessary in the circumstances. He concluded that Mobic (Meloxicam) is a non-steroidal anti-inflammatory and should not be used in a person with gastrointestinal symptoms.

Certificate of Medical Assessor Brian Williams

  1. In a certificate dated 9 July 2024 Medical Assessor Williams certified the following injuries caused by the accident give rise to a permanent impairment of 0%:

    ·        ear, nose and through and related structures (hearing impairment (tinnitus without hearing loss), and equilibrium vestibular impairment).[8]

Photographs of the vehicles[9]

[8] Insurer’s documents p 444.

[9] ALAD p 2.

  1. Photographs of the claimant’s vehicle show damage to the rear of the vehicle and the rear drivers side panel.  The entire hatchback cover has been dislodged with more significant damage to the rear right-hand side of the vehicle including the rear lights and the bumper bar.

  2. A photograph of the truck which collided with the rear of the claimant’s vehicle demonstrates damage to the front passenger side of the vehicle including a broken passenger side headlight.

Pre-accident treating medical evidence

Health Plus Medical Centre[10]

[10] Claimant’s documents p 328.

  1. The relevant pre-accident records disclose the following:

    ·        15 June 2016 – back arthritis;

    ·        23 June 2016 – OA (osteoarthritis); advised he has carpal tunnel as per neurologist;

    ·        11 April 2017 - severe arthritis in hands ? gout underlying;

    ·        28 April 2018 – neck pain: ?OA, injury six months ago by a concrete cutter machine; left knee pain, and

    ·        11 September 2018 – right knee pain last 3/12, denied injury.

Eastbrooke Medical Centre, Carlton

  1. On 11 November 2017 Dr Leo Agagiotis, GP reported both hands were painful.[11] He diagnosed bilateral osteoarthritis of the PIP joints with squaring of the bases of both thumbs as well as right carpal tunnel syndrome. He reported a gradual onset of symptoms in the preceding 12 months noting Mr Nicolaou had been doing a lot of hard labouring work.

    [11] ALAD p 10.

Application for personal injury benefits

  1. In the application dated 20 December 2018 the claimant listed his injuries as “whiplash, neck pain, headaches, ringing in the ears, sensation of moving”.[12]

Post-accident treating medical evidence.

[12] Claimant’s documents p 56.

NSW Ambulance Service

  1. The NSW Ambulance report stated:

    “O/A patient self-extricated, in care of police and fire rescue, alert, appeared well-perfused, responsive to questions in full sentences. …
    Report low speed collision, minimal deformation to the vehicle, nil airbag deployment.
    Patient CO central neck pain/tenderness and generalised pain to right leg.

    [13] Claimant’s documents p 65.

    O/E… Nil lap-belt injury/abrasion noted. Nil neurological (sensory or motor) deficits, nil abrasion/injuries detected elsewhere on the body.”[13]

Bankstown-Lidcombe Hospital

  1. Bankstown-Lidcombe Hospital ED Discharge Referral reported the following presenting complaint:

    “MVA -  hit from behind

    Significant damage to rear of car
    airbag not deployed
    No LOC
    no impact to head/neck …
    has pain to neck and occiput
    - midline neck pain
    pain to anterior chest - mild
    mild L shoulder pain
    mild dec ROM
    nil abdominal pain
    …
    Examination findings:
    … mild sternal tenderness, nil seatbelt sign
    Midline cervical tenderness at C3-4 … ROM to all joints bilat,  no tenderness
    …
    UL/LL Neuro
    - tone normal bilat
    - power 5/5 bilat globally
    - reflex + nilat to all, babinski down

    - light sensation intact…”[14]

    [14] Claimant’s documents p 132.

Your Padstow Doctors Plus

  1. The clinical records of Dr Penelope Aligiannis of Your Padstow Doctors Plus disclose the following relevant records:

    ·        1 December 2018 – Thursday afternoon rear ended in accident; went to ED, dizzy, neck pain, stiffness since, tender paraspinal muscles, ROM (range of motion) limited in all directions; pain into midscapular region.[15]

    [15] Claimant’s documents p 379.

    ·        7 December 2018 – neck pain ongoing, cannot lift head to look up – pain ++.

    ·        20 December 2018 – dizziness when lifting head, left ear ringing, headaches.

    ·        14 January 2019 – ongoing dizziness/vertigo feeling.  ROM improving- still some pain with rotation and elevation, the severe pain has settled, just ongoing dull ache.

    ·        9 February 2019 – with walking dizziness continues; tinnitus; vision is getting worse, had left collar bone pain at the time of the accident, ongoing shoulder ROM pain as per physio letter.

    ·        2 April 2019 - symptoms are ongoing; ongoing headaches; ongoing unsteadiness; ongoing neck pain with reduced ROM. 

    ·        23 April 2019 – symptoms not improved.

    ·        30 April 2019 –seeing neurologist again; to have CT neck and brain angiogram; X-ray normal.

    ·        21 May 2019 – pain in neck continues; ROM shoulder still limited by pain; pain in thumb continues; vertigo continues; unable to work.

    ·        31 May 2019 – ongoing symptoms; neck and shoulder and tinnitus and dizziness; worried about shoulder issue not improving; advised cortisone injection; discussed injection vs surgery vs physio.

    ·        14 June 2019 - shoulder pain becoming a problem; not keen for the injection. Referred to Prof G Murrell.

    ·        28 June 2019 – pain worse; no aggravating trauma; rotation, tilt, flexion and extension limited with pain; needs to return to physio.

    ·        29 July 2019 – ongoing shoulder pain + limited ROM due to pain; muscle atrophy left arm; neck pain ongoing; dizziness ongoing – bumping into things; very distressed by symptoms; frustrated over not being able to return to work.

    ·        12 September 2019 – pain is ongoing in the shoulder; at night unable to sleep; can’t do anything with the left arm; right shoulder is hurting slightly but it’s ok; the neck pain ongoing; unable to turn left and right due to pain.[16]

    [16] Claimant’s documents p 393

    ·        2 March 2020 – right shoulder hurting now, last two days, due to overuse to compensate for left shoulder. Left shoulder pain – ongoing - no change. Right shoulder – full ROM with pain; Right arm power NAD. Referral right shoulder X-ray and US.[17]

    [17] Claimant’s documents p 400

    ·        14 April 2020 – right shoulder ongoing pain – await approval for US; left shoulder – abduction limited to 90 degrees; advised cortisone injection.

    ·        19 May 2023 – two weeks ago picked a mandarin from the tree, looked up, lost balance and fell back onto right elbow. Pain in the right elbow and right anterior upper chest.[18]

    ·        22 May 2023 – concerned he has done damage to his shoulder as it has been troubling him. Pain and ROM limited[19].

    ·        21 August 2023 – ongoing dizziness.

    ·        22 November 2023 – went to Martin Place by train – he felt disorientated with the trains coming and going, trucks moving, people moving.

    ·        17 January 2024 – wanting a second opinion re his right shoulder from his fall in May 2022. Ongoing pain and stiffness.

    ·        10 May 2024 – right shoulder burning.

    ·        5 September 2024 – slight improvement with 50mg of Allegron. Has been struggling with his vision. Still feeling depressed.[20]

    ·        24 October 2024 – 12 October had a fall. Climbing steps at the back of the house, looked up, felt dizzy, lost his balance and fell to the right and landed on the inner left knee and right shoulder and outstretched hand. Pain and swelling right thenar eminence. Right shoulder pain. Left knee has improved but was bruised initially. Also fell many months ago off his bed due to dizziness. He fell to the floor directly on his perineum and since then has had suprapubic pain and testicular pain.[21]

    ·        21 November 2024 – stood from the chair in the waiting room, walked down the hallway and was unsteady on his feet.

    ·        23 January 2025 – ongoing dizziness, ongoing sound sensitivity. Right shoulder burning.[22]

    [18] Insurer’s documents p 270

    [19] Insurer’s documents p 271

    [20] ALAD 14 April 2025 p 121.

    [21] ALAD 14 April 2025 p 123.

    [22] ALAD 14 April 2025 p 129.

  1. In a Certificate of capacity/certificate of fitness dated 26 July 2023 Dr Penelope Aligiannis provided the following opinion as to diagnosis:

    “Whiplash + ringing in the ears + headache + sensation of moving + vertigo = deafness eft ear – left shoulder pain (bursitis + supraspinatus tear) + pain left web space between thumb and index finger. ? C6 nerve impingement (C-spine) + bilateral sensorineural hearing loss + 2/3/2020 – new onset right shoulder pain/burning due to overuse of right arm to compensate for left arm injury. PTSD, depression.

    *** NEW INJURY – SUFFERED VERTIGO ATTACK – FALL – INJURY TO RIGHT ELBOW. DW Mina psychologist? Traumatic brain injury. For psychiatrist review who specialises in this area. I week ago (22/7/2021) stood up – lost balance to the right and fell onto tree – head injury – headache and vertigo to the right ongoing since.

    10/10/2021 – heartburn.

    2 weeks ago (7 May 2023) – lost balance looking upwards – fell back onto right elbow and now has right shoulder and right elbow pain – US on 02/06/2023 showed right shoulder intrasubstance tear right supraspinatus muscle (this is new as Dr Murrell’s letter stated the right shoulder was normal in March 2023).”[23]

    [23] ALAD 14 April 2025 p 178.

  2. In a report dated 14 June 2023 Dr Aligiannis reported the Deralin (Propranolol) was initially prescribed by Dr Watson as per his letter dated 5 March 2021 to manage the headaches and dizziness associated with vestibular migraine secondary to the whiplash injury sustained in the accident.  She reported the symptoms of dizziness had been reported since the accident.[24]

    [24] ALAD 14 April 2025 p 443.

  3. In a report dated 19 December 2024 Dr Aligiannis stated:

    “Prior to the MVA – there was no mention of any neck arthritis. He had consulted with
    Dr Thi Nguyen re neck pain, however there was no examination performed or any imaging or evidence to suggest any osteoarthritis to the neck. She only documented ‘?OA’ which is a medical abbreviation for QUERY osteoarthritis, however again there was no evidence of same in the medical notes that I have reviewed from Medplaza.”[25]

Revesby Physiotherapy and Sports Injury Centre

[25] ALAD p 17.

  1. The clinical notes of Revesby Physiotherapy and Sports Injury Centre disclose the following relevant records:

    ·        20 December 2018 - clinical record with pictogram of pain – the midline of the posterior aspect of the neck was shaded with ’6-7/10 stabbing pain’ annotation pointing to that shaded area.[26]

    ·        21 January 2019 - neck is improving, complaint of increased pain in left shoulder (especially with reaching backwards).

    ·        25 January 2019 – neck feels okay … anterior shoulder seems to be causing the most symptoms.

    ·        30 January 2019 – neck is sore, limited with right rotation. R shoulder very sore, unable to reach and load or complete rotation tasks. Arguably the reference to the right shoulder is an error where the examination noted restriction of movement and increased pain in the left shoulder. 

    ·        7 February 2019 – report of Mitch Holdsworth physiotherapist reported ongoing management of the claimant’s cervical whiplash and a complaint of anterior left shoulder pain, particularly present with abduction and external rotation-based movements.[27] He noted cervical range of motion had improved to close to 90% with rotation in both directions. Left lateral flexion was still mildly restricted, to around 80% of his expected range. There was still soft tissue tightness present down the cervical/thoracic paraspinals, although improved.

    [26] Claimant’s documents p 1,085.

    [27] Claimant’s documents p 549.

  2. The claimant consulted Dr Derrick Soh, neurologist on 18 April 2019, 18 May 2019 and
    4 July 2019 in respect of ongoing neck and shoulder pain.[28] He noted the MRI of the cervical spine showed moderate to severe foraminal stenosis with potential impingement of the left C6 nerve root.  He considered his symptoms were a combination of left supraspinatus shoulder tear with the possibility of a C5/C6 left foraminal narrowing that may have been exacerbated by the accident.

Professor Murrell, orthopaedic surgeon

[28] Claimant’s documents p 127, 159, 161 and 592.

  1. Mr Nicolaou consulted Prof Murrell on 17 July 2019 in respect of a “left shoulder problem”.[29]  Prof Murrell reported Mr Nicolaou was rear-ended by a truck and felt immediate neck and shoulder pain. He reported the neck pain had resolved but not the shoulder pain. He diagnosed a frozen left shoulder.  On 15 October 2019 Mr Nicolaou underwent an arthroscopic capsular release of the left shoulder under the care of Prof Murrell.[30]  On

    [29] Claimant’s documents p 104.

    [30] Claimant’s documents p 122.

    29 January 2020 Prof Murrell reported the shoulder was still stiff and irritable. He noted positive impingement signs. 

  2. On 6 April 2020 Prof Murrell reported Mr Nicolaou still had a restricted range of motion and mild mechanical impingement.[31]

    [31] Claimant’s documents p 111.

  3. On 27 May 2020 Prof Murrell reported Mr Nicolaou presented with right shoulder symptoms caused by using the right shoulder more since the left shoulder surgery six months earlier.[32] He had mild pain with overhead activities and severe pain at night. Prof Murrell reported the claimant had a painful, moderately restricted range of shoulder movement. He noted right shoulder X-ray showed evidence of impingement and mild glenohumeral arthritis. Ultrasound showed a rotator cuff (supraspinatus) tear. He recommended surgery.

    [32] Claimant’s documents p 112.

  4. On 29 October 2020 Prof Murrell reported whilst the left shoulder had slight restriction of range of motion, power was quite good.  The right shoulder had positive impingement signs and was slightly weak.  He did not consider any further intervention was required with the left shoulder. He recommended arthroscopy and rotator cuff repair of the right shoulder.[33]

    [33] Claimant’s documents p 237.

  5. On 9 February 2021 Mr Nicolaou underwent arthroscopy and rotator cuff repair of the right shoulder under the care of Prof Murrell.[34]On 1 November 2021 Prof Murrell reported the shoulder had a slightly restricted range of motion and was strong in strength testing.[35] 

    [34] Claimant’s documents p 273.

    [35] Claimant’s documents p 1,356.

  6. On 28 March 2022 Prof Murrell reported Mr Nicolaou was concerned about stiffness of the right shoulder.[36]  On 22 August 2022 Prof Murrell assessed post rotator cuff repair with some impingement and stiffness of the right shoulder.[37] 

    [36] Claimant’s documents p 1,365.

    [37] Claimant’s documents p 1,372.

  7. On 27 March 2023 Prof Murrell reported Mr Nicolaou had restricted range of motion of the right shoulder although power was good, and reasonable power and range of motion on the left. He assessed a small partial thickness intrasubstance tear of the left shoulder and stiffness following rotator cuff repair of the right shoulder.[38]

    [38] Claimant’s documents p 1,379.

  8. On 5 December 2023 Prof Murrell reported Mr Nicolaou had a fall six months earlier landing on his right shoulder. He also reported the left shoulder continued to give him problems. He assessed a post rotator cuff repair of the right shoulder with a recent fall but no significant retear.  He also noted a small partial-thickness tear of the left shoulder which was improving.[39]

    [39] Claimant’s documents p 1,393.

  9. On 1 December 2024 Prof Murrell reported the claimant had a fall at the back of his kitchen on 12 October 2024 when he fell on his shoulder and has had increased pain since then.[40] He diagnosed bursitis of the right shoulder.

[40] ILAD 14 April 2025 p 99.

Dr Shaun Watson

  1. Mr Nicolaou saw Dr Shaun Watson, neurologist on 31 January 2020 in respect of the migraine headaches. The history he obtained was that he was struck from the rear by a truck which threw his car into the gutter resulting in momentary loss of consciousness and immediate neck pain, left shoulder pain, headache and dizziness. He considered
    Mr Nicolaou had suffered severe whiplash with migrainous symptoms. In a report dated

    [41] Insurer’s documents p 426.

    26 May 2023 Dr Watson concluded Mr Nicolaou had vestibular migraine secondary to injury.[41]

  2. On 12 December 2023 Dr Watson reported pain and stiffness in the neck. He also noted he has dizziness and loss of balance variably triggered by looking up or down, trains, noisy shopping centres and lifts. Dr Watson affirmed his diagnosis of vestibular migraine triggered by injury. He thought there might also be a cervicogenic component to the dizziness. He prescribed Allegron 25 mg nocte.

  3. On 19 July 2024 Dr Watson reported the claimant was taking Allegron 25mg nocte. He reported he felt a little less dizzy but feels unsteady and dizzy fairly often.  He reported he continued to experience neck and head pain. Dr Watson concluded the claimant had severe migraine, possibly with a cervicogenic component.[42]

    [42] ALAD 14 April 2025 p 44.

  4. On 24 January 2025 Dr Watson reported Mr Nicolaou had a fall on 12 October 2024 which was related to spinning dizziness.[43] He fell down a small step outside of the kitchen and hurt his right shoulder and hand. He reported Mr Nicolaou was taking Nortriptyline 75 mg nocte which he felt helped with headache and head tightness but not substantially with dizziness. He reported he was withdrawn, depressed and crying. Dr Watson reported he experiences spinning dizziness on a regular basis which can be triggered by loud noises and visual motion.

    [43] ALAD 14 April 2025 p 421.

Dr John Trantalis, shoulder surgeon

  1. The claimant saw Dr John Trantalis, orthopaedic surgeon on 13 June 2024 in respect of right shoulder pain.[44] He reported following the arthroscopic capsular release and rotator cuff repair he had ongoing pain in the shoulder which wakes him up at night.

    [44] ALAD 14 April 2025 p 34.

  2. On 2 August 2024 Dr Trantalis reported the CT scan demonstrated that the cuff repair was intact.[45]  He though the pain may have been from the biceps tendons and possibly a partial re-tear of the repaired rotator cuff.

    [45] ALAD 14 April 2025 p 49.

Recovre Medical Management and RTW Assessment Report

  1. In a report dated 16 April 2019 Ms Bhardwaj reported in the two to three weeks following the accident the pain in his neck and shoulder was unbearable.[46] She reported he had sustained whiplash and bursitis in his left shoulder from the accident.

    [46] Insurer’s documents p 25.

Pinnacle Rehab RTW & Recovery + Workplace Assessment Report

  1. In a report dated 13 September 2019 Mr Jack Anderson reported Mr Nicolaou injured his left shoulder, had a whiplash injury and experienced ringing/deafness in his left ear since the accident.[47] He reported a constant ache in the left shoulder and neck pain on the left side with movement of the left shoulder and when turning the head to the left or right.

    [47] Insurer’s documents p 33.

Imaging

  1. CT cervical spine, 29 November 2018 – the report concludes:

    “No intracranial haemorrhage, no skull fracture, no cervical spinal fracture, subluxation or dislocation”.[48]

    [48] Claimant’s documents p 134.

  2. MRI brain, 24 February 2019 – the report concludes:

    “The appearance of the intracranial contents is within normal limits for the patient’s age.”[49]

    [49] Claimant’s documents p 136.

  3. Left shoulder X-ray 26 February 2019 – the report concludes:

    “Normal alignment to AC and glenohumeral joints with no joint abnormality noted. No focal osseous lesion. No abnormal soft tissue calcification”.[50]

    [50] Claimant’s documents p 137.

  4. Left shoulder ultrasound, 26 February 2019 – the report concludes:

    “7 mm intrasubstance partial thickness supraspinatus anterior fibres tear present. No other tendon pathology appreciated. SASD bursitis with bursal thickness to 4mm and associated bursal impingement upon abduction noted. Normal range of active movement.”[51]

    [51] Claimant’s documents p 137.

  5. X-ray left hand, 24 April 2019 – the report concludes:

    “Osteoarthritic changes as described”.[52]

    [52] Claimant’s documents p 138.

  6. CT neck angiogram, 6 May 2019 – the report states:

    “No evidence of a carotid or vertebral artery dissection or occlusion. No acute cervical spine injury. Moderate to severe left C5/6 neural exit foraminal stenosis which may impinge on the exiting left C6 nerve root. This can be assessed with MRI. Multiple subcentimetre thyroid nodules.”[53]

    [53] Claimant’s documents p 139.

  7. MRI cervical spine dated 31 May 2019 – the report concludes:

    “Mild discovertebral spondylotic changes. C5/6 moderate to severe left foraminal stenosis due to uncovertebral osteophytes resulting in potential impingement of left C6 nerve root. C6/7 tiny left central disc protrusion associated with potential impingement of root entry zone of the left C7 nerve root. No myelopathy is seen”.

  8. Diagnostic ultrasound left shoulder 17 July 2019 – the report reads:

    “Supraspinatus               Undersurface change

    Biceps  Normal

    Impingement                   No impingement but blocking at 40 on abduction

    Subscapularis                 Normal

    Infraspinatus                   Normal ”[54]       

    [54] Claimant’s documents p 152.

  9. Diagnostic ultrasound left shoulder 6 April 2020 – the summary reads:

    “Left shoulder: Partial thickness – undersurface 20% (5mm x 5mm) rotator cuff (supraspinatus) tear.”[55]

    [55] Claimant’s documents p 145.

  10. Diagnostic ultrasound right shoulder 27 May 2020 – the summary reads:

    “Right shoulder. Partial thickness – undersurface 60% (8mm x 8mm) rotator cuff (supraspinatus) tear.”[56]

    [56] Claimant’s documents p 144.

  11. X-ray right shoulder, 27 May 2020 – the report concludes:

    “Rotator cuff pathology, show evidence of impingement, mild glenohumeral arthritis.”[57]

    [57] Claimant’s documents p 143.

  12. Diagnostic ultrasound left shoulder 30 July 2020 – the summary reads:

    “left shoulder: partial thickness – undersurface 20% (7mm x 10mm) rotator cuff (supraspinatus) tear.”[58]

    [58] Claimant’s documents p 141.

  13. Diagnostic ultrasound left shoulder, 29 October 2020 – the summary reads:

    “Left shoulder: partial thickness – undersurface 20% (6mm x 10mm) rotator cuff (supraspinatus) tear.”[59]

    [59] Claimant’s documents p 236.

  14. Diagnostic ultrasound right shoulder, 29 October 2020 – the summary reads:

    “Right shoulder: Partial thickness – undersurface 60% (11mm x 8mm) rotator cuff (supraspinatus) tear.”[60]

    [60] Claimant’s documents p 235.

  15. CT scan both shoulders, 24 June 2024 – the report concludes:

    “Right shoulder

    1.   status post right cuff repair without complication, intact cuff repair fibres.

    2.   Minimal AC joint degeneration.

    3.   SLAP llb tear of the superior glenoid labrum.

    Left shoulder

    Unremarkable examination allowing for mild free edge truncation of the glenoid labrum. No cuff tear identified.”[61]

    [61] ALAD 14 April 2025 p 40.

  16. Ultrasound shoulder, 14 November 2024 – the comment reads:

    “There is supraspinatous tendon tear as described.

    There is subacromion subdeltoid bursitis with impingement on abduction.”[62]

Medico-legal evidence

[62] ALAD 14 April 2025 p 87.

Dr Frank Machart, orthopaedic surgeon

  1. Dr Machart assessed the claimant at the request of the insurer and provided a report dated

    [63] Insurer’s documents p 63.

    7 October 2020.[63]

  2. Dr Machart reported at the time of the accident the claimant experienced pain in the neck and on the pectoral aspect of the left shoulder.  He underwent arthroscopic surgical release for frozen shoulder. Dr Machart reported Mr Nicolaou protected the less useable left arm by using the right arm and developed pain and stiffness in the right shoulder about 12 months earlier.

  3. Dr Machart stated he did not find evidence of overuse where the claimant was working as a builder’s labourer up to the time of the accident and where his left arm is not totally useless. He found there was no injury to the right shoulder caused by the accident. 

  4. Dr Machart diagnosed a cervical soft tissue strain at the time of the accident. In relation to the left shoulder, he concluded whilst frozen shoulder can develop for no reason in the presence of a potential injury from the accident, the impact of the accident cannot be entirely discounted.  He stated it was reasonable to conclude that the left shoulder adhesive capsulitis (frozen shoulder) was at least in part caused by the accident.

Prof James Brew, neurologist

  1. Prof Brew assessed the claimant at the request of his lawyers and provided a report dated 20 January 2022.[64] Prof Brew reported following the accident the claimant had had ongoing neck pain initially going into the left shoulder with involvement of the right shoulder over the subsequent months. He also complained of headaches, diminished hearing and bilateral ringing in the ears.  He reported poor balance.

    [64] Claimant’s documents p 81.

  2. Prof Brew diagnosed musculoskeletal neck pain, bilaterally frozen shoulders, post-traumatic migraine, and vestibular migraine, all related to the accident.  He also noted sensory neural hearing loss bilaterally. He also concluded that the rotator cuff tear on the left was a direct result of the accident.

Dr Charles New, orthopaedic and spinal surgeon

  1. Dr New assessed the claimant for his lawyers and provided a report dated 8 August 2022.[65]

    [65] Claimant’s documents p 99.

  2. Dr New reported on impact Mr Nicolaou had pain in his neck and left shoulder and ringing in his ears. Dr New reported prior to the accident Mr Nicolaou held a full-time job without restriction. He reported the cervical spine was his main issue although he also had difficulties with recurrent headaches, vertigo and hearing loss. He also described a number of falls due to the vertigo in August and October 2020, July 2021 and March 2022. He noted Mr Nicolaou had undergone left shoulder arthroscopic capsular release on 15 October 2019 and right rotator cuff repair and arthroscopy on 9 February 2021.

  3. Dr New diagnosed cervical spondylosis and bilateral shoulder pain.  Dr New noted a history of cervical spondylosis but reports the claimant stated he was asymptomatic prior to the accident. He did not find true radiculopathy.

  4. Dr New assessed the claimant as DRE cervicothoracic II or 5% WPI. He assessed the upper limb impairments as 19% WPI, with a combined impairment value of 23% WPI.

Dr James Powell, orthopaedic surgeon

  1. Dr Powell assessed the claimant for the insurer and provided a report dated 28 April 2022.[66]

    [66] Insurer’s documents p 74.

  2. Dr Powell reported at the time of the accident Mr Nicolaou had pain in the neck and about the left shoulder region. Dr Powell reported the first mention of left shoulder pain was from
    9 February 2019 referring to the left clavicle.

  3. Dr Powell reported Mr Nicolaou described ongoing pain in both shoulders and said he could not lift his left arm above shoulder height. He reported pins and needles in the left hand which came on halfway along the course of his troubles since the accident.

  4. In relation to the right shoulder Dr Powell reported; “at the time of the accident Mr Nicolaou was aware of discomfort about the right shoulder but this increased in severity over subsequent months to become painful”. Dr Powell notes that the GP’s records first mentions right shoulder region symptoms around 3 March 2020.

  5. Dr Powell expressed the following opinions:

    “The forces were delivered in a straight manner in the long axis of the car in the direction of travel with no additional complex forces applied. In this mechanism, Mr Nicolaou may have had extension of the neck under the influence of the inertia of his head until it impacted on the headrest and the support of the seat furniture would prevent any further motion of the skeleton of the neck region. During this mechanism, there would be no force directed through the shoulders.”

    And further:

    “Apart from the relevant closeness of the development of left shoulder symptoms to the motor vehicle accident, the mechanism of incident would not specifically be expected to cause injury about the left shoulder, nor to be a proximate physical cause for the development of adhesive capsulitis, and it is more likely that this condition is simply a common disorder which just happens to have developed in the period after a low energy motor vehicle accident.”

    And further:

    “The development of right shoulder difficulties in relation to the motor vehicle accident is even more difficult to associate. Symptoms developed in 2020, and Mr Nicolaou had been previously noted to have a full range of motion of the right shoulder.
    Subsequent imaging identified age related degenerate disease and this pathology formed the basis of his operative management.
    (The terms, “consequential injury and ‘overuse’ are frequently utilised to explain the development of contralateral difficulties often in the mirror imaged joint, but this concept does not have any sound evidential base.).”

  1. Dr Powell concluded the claimant’s ongoing disabilities relate to bilateral shoulder stiffness and pain which arises from his rotator cuff disease and post-operative state, none of which relate to the accident.

  2. In relation to the cervical spine Dr Powell considered any soft tissue strain had resolved, and no further management was required, although he found the prognosis was guarded with respect to the multilevel degenerate disease which had been symptomatic prior to the accident.  He found there was no accident-related WPI in the neck or either shoulder.

Dr Ross Mellick, neurologist

  1. Dr Mellick assessed the claimant at the request of the insurer and provided a report dated

    [67] Insurer’s documents p 93.

    27 September 2022.[67] There is some doubt about the efficacy of the assessment where an interpreter was not available for the entire assessment.

  2. Dr Mellick stated Mr Nicolaou stated his main problem was depression of mood.  He also complained of neck pain and pain present in the left shoulder since the accident. He reported with the passage of time the pain on the left side has become less and he now reports more pain involving the right shoulder region.

  3. Dr Mellick diagnosed a chronic pain syndrome and associated impairment of function due to severe depression dating from the accident.

SUBMISSIONS

Claimant’s submissions

  1. The claimant provided submissions dated 21 August 2024.[68]

    [68] Claimant’s documents p 1.

  2. The claimant submits Medical Assessor Chan failed to give any or any sufficient weight to the clinical records of Bankstown-Lidcombe Hospital, the clinical records of Your Padstow Doctors Plus and the report of Professor George Murrell dated 1 July 2020.

  3. The claimant notes the ED Discharge Referral of Bankstown-Lidcombe Hospital dated
    29 November 2018 stated:

    “No LOC, … has pain to neck and occipital, midline neck pain, prior to anterior chest, mild left shoulder pain mild decrease ROM”

  4. In spite of this entry Medical Assessor Chan concluded the claimant should have complained of symptoms in the first few days after the accident in respect of the left shoulder and the absence of complaints led Medical Assessor Chan to conclude there was no direct injury to the left shoulder in the accident.

  5. The claimant also notes the entry in the clinical records of Your Padstow Doctors Plus of
    2 March 2020 reads:

    “Right shoulder hurting now, last 2 days. Due to overuse of right shoulder to compensate for left shoulder. Left shoulder pain – ongoing – no change. Examination: Right shoulder – full ROM – with pain, Right arm power NAD. Referral right shoulder x-ray and US.”

  6. The claimant also relies upon the report of Prof Murrell dated 1 July 2020 where he stated:

    “Prof Murrell informed the insurer that as a result of having to use his right shoulder more, after he had surgery to the left shoulder that he had developed pain in his right shoulder.”

  7. The claimant notes Medical Assessor Chan did not deal with Prof Murrell’s opinion. The claimant submits where Medical Assessor Chan accepted injury to the cervical spine, he could have accepted injury to the right shoulder in light of the decision in Nguyen v Motor Accidents Authority of New South Wales & Anor where Hall J remarked at [94]:

    “Application of common law causation principles would, in my opinion, support the conclusion that impairment to one or both of the plaintiff’s upper limbs consequent upon injury to the cervical spine would be compensable as the natural and direct consequence of spinal injury.”[69]

    [69] Nguyen v Motor Accidents Authority of New South Wales & Anor [2011] NSWSC 351.

  8. The claimant also relies upon cl 6.7 of the Guidelines to assert that the test is whether the injury was caused or materially contributed to by the accident and that the accident does not have to be the sole cause as long as it is a contributing cause which is more than negligible.

  9. The claimant provided submission dated 23 November 2021 in support of the common law claim for damages.[70]  In those submissions the claimant states as a result of his injuries he was required to undergo an arthroscopic capsular release of his frozen left shoulder under the care of Prof Murrell.  That surgery was funded by the insurer.  The claimant subsequently developed a consequential injury to the right shoulder due to over reliance of over compensatory use which led to Prof Murrell recommending a rotator cuff repair and arthroscopic surgery to the right shoulder. Whilst the insurer did not concede injury to the right shoulder the claimant proceeded to have the right shoulder surgery on 9 February 2021.

    [70] Claimant’s documents p 6.

Insurer’s submissions

  1. The insurer provided submissions dated 5 September 2024.[71]

    [71] Insurer’s documents p 1.

  2. The insurer submits Medical Assessor Chan had provided a clear pathway of reasoning where he reported no imaging of the left shoulder was performed at the hospital, where the left shoulder was not included in the provisional diagnosis provided by the hospital and where he has indicated he agreed with Dr Powell that “adhesive capsulitis is a common condition throughout the community and its cause obscure”. The insurer submits Medical Assessor Chan made his findings in spite of acknowledging a complaint of mild pain at the hospital.

  3. In relation to the right shoulder the insurer submits Medical Assessor Chan did not disregard the GP notes from 2 March 2020 in concluding there was no contemporaneous evidence of an injury to the right shoulder.

  4. The insurer submits the evidence to suggest the right shoulder symptoms arose from overuse is not medically sound. The insurer relies upon the opinion of Dr Powell who noted subsequent imaging identified age related degenerative disease which formed the basis of his operative management.

  5. In relation to the Nguyen principle the insurer submits this was considered and rejected by Medical Assessor Chan who found “the pain in the posterior aspect of his neck was localised with no radiation to the upper limbs. Hence the restriction of movement at the shoulders was not related to the cervical spine injury …”.

MEDICAL EXAMINATION

  1. Mr Nicolaou was examined by Medical Assessor Mohammed Assem at the Medical Suites at the Commission at 1 Oxford Street, Darlinghurst on 15 April 2025. He was accompanied by Mr Jim Tsoukalos, an accredited Greek-speaking interpreter (NAATI Number 14529).

Pre-accident medical history and relevant personal details

  1. Mr Nicolaou is a 62-year-old right-handed male who immigrated to Australia from Cyprus on 16 April 2016. At the time of the accident, he was employed as a full-time labourer on a construction site with CH Construction in Sydney. He has not returned to work since the date of the accident. During the assessment he indicated that it was because of persistent dizziness, episodes of unsteadiness, and symptoms of depression. He also described side effects from medications, which he believes have contributed to balance difficulties.

  2. His medical history prior to the accident includes a diagnosis of arthritis affecting his hands and back. GP records dated 28 April 2018, approximately seven months prior to the accident, documented complaints of neck pain which were queried as early osteoarthritis. In 2016, he was noted to have carpal tunnel syndrome and back arthritis. In 2017, his GP documented “severe arthritis in hands ? gout” for which he was prescribed colchicine.

History of the accident

  1. On 29 November 2018, Mr Nicolaou was the sole occupant of a Ford station wagon travelling in a northerly direction along King Georges Road near Wiley Park, New South Wales, and had stopped at an orange traffic light at the intersection with Canterbury Road to avoid running a red light and potentially triggering the red-light camera. While stationary, his vehicle was struck from behind by a truck.

  2. He reported that the force of the impact propelled his vehicle forward by approximately 2 TO 3m. He was wearing a seatbelt restraint, and there was no airbag deployment. Mr Nicolaou stated that the sudden jolt forward caused him to strike his upper chest on the steering wheel. He experienced immediate central neck pain and described “screaming from pain” and being in a state of shock. He recalled having difficulty breathing and bracing himself by holding the steering wheel at the time of impact. He associated this bracing action with the onset of left shoulder discomfort. Although the damage to the vehicle appeared minor in the photographs provided, it was subsequently declared a total loss by the insurer.

  3. An ambulance attended the scene and documented that Mr Nicolaou had complained of “central neck pain/tenderness and generalised pain to right leg”. No shoulder injury was recorded, and there were no neurological deficits or external abrasions noted. He was transported to Bankstown-Lidcombe Hospital.

  4. The hospital emergency department record for the same day documented “midline neck pain, pain to anterior chest, and mild left shoulder pain”. On examination, there was “mild decrease in range of motion”, “mild sternal tenderness” and “midline cervical tenderness at C3-4”. Imaging including chest X-ray and CT scans of the brain and cervical spine were unremarkable and did not reveal evidence of fracture, dislocation, or intracranial pathology.

  5. In his Application for Personal Injury Benefits (APIB) dated 20 December 2018, Mr Nicolaou listed symptoms of “whiplash,” “headache”, and “ringing in the ears”, but did not include reference to shoulder pain. Later in the assessment, he explained that he initially experienced mild left shoulder pain, but it became more prominent over time.

History of symptoms and treatment following the accident

  1. He consulted his GP, Dr Penelope Aligiannis, on 1 December 2018, two days after the accident. He reported symptoms of dizziness, central neck pain, and mid-scapular discomfort. AHRR (physiotherapy) dated 21 January 2019 noted left shoulder pain associated with a reduced active range of motion. Similar findings were noted on
    31 January 2019.

  2. On 9 February 2019, Dr Aligiannis recorded pain localised to the left collarbone region and referred Mr Nicolaou for radiological imaging. An X-ray of the left shoulder performed on
    26 February 2019 showed no evidence of fracture. An ultrasound conducted the same day revealed a 7mm partial thickness intrasubstance tear of the anterior fibres of the supraspinatus tendon, with associated bursal thickening and impingement on abduction.

  3. A CT angiogram of the neck performed on 6 May 2019 showed moderate to severe left C5/6 foraminal stenosis. An MRI of the cervical spine dated 31 May 2019 demonstrated early multilevel degenerative changes.

  4. He was referred to Professor Murrell on 17 July 2019, who diagnosed adhesive capsulitis and recommended surgical management. On 15 October 2019, Mr Nicolaou underwent an arthroscopic capsular release and debridement of the left shoulder. Intraoperative findings included a bursal-side partial thickness tear of the supraspinatus tendon measuring 8mm x 8mm.

  5. Following the surgery, Mr Nicolaou reported an improvement in some aspects of shoulder function. He stated that during imaging of his cervical spine and left shoulder, he was incidentally noted to have a tear in the right rotator cuff. He was informed that dedicated imaging of his right shoulder would be necessary. Imaging in April 2020 confirmed a partial supraspinatus tear in the right shoulder. Subsequently, on 9 February 2021, he underwent a right shoulder arthroscopic rotator cuff repair using a single anchor. Post-operative ultrasound imaging in March and August 2022 confirmed that the repair remained intact. However, Mr Nicolaou continued to experience right shoulder pain and stiffness.

Details of any relevant injuries or conditions sustained since the accident

  1. Since the accident, Mr Nicolaou has reported episodic dizziness and subsequent falls. The first recorded fall occurred in August 2020. Mr Nicolaou reported that while attending an English class, he experienced sudden dizziness and exited the classroom. While descending the stairs, he missed several steps and fell forward, using his right forearm and elbow to break his fall against a wall. He denied injury to the right shoulder at the time. An X-ray of the right elbow dated 4 September 2020 revealed no fracture.

  2. In another episode, Mr Nicolaou described feeling dizzy while walking. He reached for the branches of a nearby tree to steady himself and inadvertently bumped his head against the trunk. He did not report any significant injury resulting from this incident.

  3. A subsequent and more significant fall took place on 7 May 2023. While picking mandarins from a tree, Mr Nicolaou looked upwards, experienced dizziness, and fell backwards onto his right elbow. He reported immediate pain in the right elbow and shoulder. Radiological assessment on 2 June 2023 including an X-ray of the right elbow, were normal. An ultrasound of the right shoulder performed the same day revealed intact biceps, infraspinatus, subscapularis, and teres minor tendons, and a normal acromioclavicular joint and posterior labrum. However, a small intrasubstance partial tear of the anterior supraspinatus tendon was detected, measuring 12mm x 12mm x 4mm.

Current symptoms

  1. At the time of assessment, Mr Nicolaou continues to report persistent symptoms involving the cervical spine and both shoulders, although symptoms are more severe in the right shoulder. He describes intermittent, localised pain at the back of the neck, which is aggravated by prolonged postures and neck movements. He can drive for short distances, though he avoids longer trips and relies on his wife for most driving. He reports difficulty with tasks requiring overhead reaching, lifting, and prolonged sitting.

Findings on examination

  1. Mr Nicolaou was unsteady when he initially stood from a seated position. He was cooperative but demonstrated pain behaviour in the form of grimacing and vocalisation. He was informed at the time of the examination, not to engage in any manoeuvre beyond what he could tolerate, or which may cause harm or injury.

  2. All movements performed in today’s examination were active and voluntary. No movements were undertaken to the point that they would have caused or inflicted any further injury or pain.

Cervical spine

  1. Inspection of the cervical spine revealed no visible deformity or muscle wasting. There was no guarding or spasm. Palpation revealed tenderness over the midline cervical spine and paraspinal muscles. He reported nocturnal paraesthesia involving the entire left arm, but there was no sensory loss on formal examination.

  2. Cervical flexion and extension were symmetrically reduced to ¾ of normal range. Lateral flexion and rotation were also symmetrically reduced to ¾ of normal range. There was no asymmetry or spinal dysmetria.

  3. The circumference of his left forearm and upper arm was 1cm less than the right. Neural tension signs were negative. His upper limb reflexes were symmetrically reduced. Power was globally reduced.

Upper extremities

  1. There were minor arthroscopic porthole surgical scars. There was tenderness over the anterior and lateral shoulder region worse on the right. There were no crepitations or instability. Active range of motion was reduced as follows:

Shoulder Movements

Active ROM Measured
RIGHT

Active ROM Measured

LEFT

Flexion

90°, 90°, 90°

100°, 90°, 110°

Extension

30°

40°

Adduction

20°, 20°, 20°

0°, 10°, 20°

Abduction

80°,70°, 80°

80°, 80°, 80°

Internal Rotation

70°, 60°70°

60°,70°,80°

External Rotation

40°, 40°, 40°

40°, 40°, 40°

DIAGNOSIS AND CAUSATION

Cervical spine injury

  1. The contemporaneous evidence supports a causal relationship between the accident and his neck complaints. The ambulance record from 29 November 2018 documented “central neck pain/tenderness”, and the emergency department record of the same date confirmed “midline cervical tenderness at C3-4” and “mild decrease in ROM”. His GP, Dr Penelope Aligiannis, recorded “limited ROM in all directions” at the consultation on 1 December 2018. Subsequent imaging included a CT angiogram performed on 6 May 2019, which showed moderate to severe left C5/6 foraminal stenosis, and an MRI of the cervical spine dated 31 May 2019 which showed multilevel degenerative changes. These findings support an aggravation of pre-existing degenerative pathology.

Left shoulder injury

  1. The emergency department record dated 29 November 2018 documents “mild left shoulder pain” and “mild decrease in ROM”. No reference to shoulder symptoms is found in the GP records until 9 February 2019. However, physiotherapy records dated 21 January 2019 reported pain in the left shoulder associated with a restriction in shoulder motion. A subsequent ultrasound on 26 February 2019 revealed a “7mm partial thickness tear of the anterior supraspinatus” and bursal thickening with impingement.

  2. The mechanism of bracing against the steering wheel and early post-accident stiffness supports plausibility of trauma-induced adhesive capsulitis associated with a rotator cuff tear. This condition is therefore causally related to the accident.

Right shoulder injury

  1. The right shoulder condition is not supported by contemporaneous documentation in the immediate months following the accident. The first documented reference to right shoulder pain appears on 2 March 2020—approximately 15 months post-accident—in a GP note which states: “right shoulder hurting now last two days due to overuse to compensate for left shoulder”. Whilst the Panel noted the opinion of Prof Murrell, the Panel notes there is no evidence that Mr Nicolaou was engaged in any occupational or strenuous activities that would plausibly result in a rotator cuff tear. 

  2. Moreover, rotator cuff tears are relatively common incidental findings in individuals of
    Mr Nicolaou’s age group. During the assessment, Mr Nicolaou himself described the tear as an “incidental finding” detected during imaging. On the available evidence the Panel is not satisfied the right shoulder injury was caused or materially contributed by either the accident directly or by over compensatory use.

  3. While the right shoulder injury cannot currently be attributed to compensatory overuse or directly to the accident, the issue of whether any subsequent falls—potentially caused by post-traumatic dizziness—contributed to or aggravated the right shoulder condition was considered.

  4. However, the Panel notes on 5 December 2023 Prof Murrell reported the claimant had a fall six months earlier landing on his right shoulder although he found no significant retear and on 1 December 2024 Prof Murrell only diagnosed bursitis of the right shoulder notwithstanding a fall on 12 October 2024.

  5. Where it was not a matter the Panel was asked to consider and having regard to the opinion of Prof Murrell the Panel thinks it is unlikely any impairment of the right shoulder is related to the subsequent falls but does not express any conclusion in that regard.

  6. Accordingly, based on the present evidence, the right shoulder condition is not considered causally related to the motor vehicle accident or to compensatory overuse.

PERMANENT IMPAIRMENT

Cervical spine

  1. Mr Nicolaou demonstrated a symmetrical restriction in cervical spine range of motion. There was no evidence of muscle spasm, guarding, spinal dysmetria, or radiculopathy. Neurological examination of the upper limbs revealed no deficits. Based on these findings, the cervical spine condition is consistent with a DRE Cervicothoracic Category I, equating to a 0% whole person impairment (AMA 4 Guides, p 104).

Left shoulder

  1. Impairment of the left shoulder was assessed in accordance with the AMA 4 Guides (AMA4, Figure 38, 3/43; Figure 41, 3/44; Figure 44, 3/45). According to the best range observed, he has 13% left upper extremity impairment, which translates to an 8% whole person impairment (AMA 4 Guides, Table 4, p. 20). The contralateral right shoulder was not deemed an appropriate reference for ‘normal’ for comparison (MAA Guides, paragraph 6.51 p 91).

Shoulder ROM

  Right°

RUEI%

Left°

LUEI%

Normal

Flexion

90

6

110

5

180

Extension

30

1

40

1

50

Abduction

80

5

80

5

180

Adduction

20

1

20

1

50

Internal rotation

70

1

80

0

80

External rotation

40

1

40

1

60

Total RUEI

15

Total LUEI

13

CONCLUSION

  1. The Review Panel revokes the Certificate of Medical Assessor Wing Chan dated
    29 September 2023 and issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a whole person impairment of 8%:

    ·        injury to the cervical spine, and

    ·        injury to the left shoulder.

  2. The Review Panel finds the following injury was not caused by the accident:

    ·        injury to the right shoulder.


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Nguyen v Motor Accidents Authority of New South Wales and Anor [2011] NSWSC 351