Nigro v Insurance Australia Limited t/as NRMA Insurance

[2025] NSWPICMP 723

DETERMINATION OF REVIEW PANEL

CITATION:

Nigro v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 723

CLAIMANT:

Cosimo Nigro

INSURER:

IAG Limited trading as NRMA Insurance

REVIEW PANEL

MEMBER:

Alexander Bolton

MEDICAL ASSESSOR:

Margaret Gibson

MEDICAL ASSESSOR:

Tai-Tak Wan

DATE OF DECISION:

19 September 2025

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of certificate and reasons of Medical Assessor (MA); threshold injury assessment and assessment of whole person impairment (WPI); claimant claimed injury to his cervical and lumbar spines, his right shoulder as well as a tear to his right shoulder supraspinatus muscle as a result of the accident; insurer denied this on the basis the condition was degenerative; claimant had been involved in an earlier work accident in 2003 involving mainly his lumbar spine and had not worked since; issue about the age of the shoulder tear; complaint by the claimant at the time of the accident and immediately thereafter of acute pain in the shoulder; Held – Review Panel satisfied that the claimant had a non-threshold injury of his right shoulder and that this not a degenerative condition; Review Panel assessed 5% WPI for the cervical spine and 6% WPI for the shoulder; total WPI of 11%; certificate of MA revoked.

DETERMINATIONS MADE:  

CERTIFICATE OF DETERMINATION

1.     The Panel revokes the Certificate of Medical Assessor Kenna dated 5 February 2024.

2.     The Panel finds that the claimant has suffered the following threshold injuries:

(a)    cervical spine - soft tissue injury, and

(b)    lumbar spine - soft tissue injury.

3.     The Panel finds that the claimant has suffered the following non-threshold injury:

·     right shoulder – supraspinatus partial- thickness tear.

4.     The Panel assesses 11% whole person impairment for the claimant’s injuries.

STATEMENT OF REASONS

INTRODUCTION

1. This is an application by the claimant for a review of a certificate and reasons of Medical Assessor Kenna (the Medical Assessor) dated 5 February 2024.

2. This is a dispute between the claimant and the insurer about:

   (a)    whether the injury is a threshold injury under Schedule 2, s 2(e) of the Motor Accident Injuries Act2017 (the Act), and

   (b)    the degree of permanent impairment under Schedule 2, s 2(a) of the Act.

3. The following injuries were referred by the Personal Injury Commission (Commission) for assessment of whether they were threshold injuries:

   (a)    cervical spine - soft tissue injury and/or discogenic injury to the cervical spine with radiating pain into the limbs;

   (b)    lumbar spine - soft tissue injury and/or discogenic Injury to the lumbar spine with radiating pain down the right thigh/leg, and

   (c)    right shoulder - right shoulder - right shoulder structure (s) including partial thickness tearing in the supraspinatus with tendinopathy.

4. The following injuries were referred by the Commission for assessment of whole person impairment (WPI):

   (a)    cervical spine - soft tissue injury and/or discogenic injury to the cervical spine with radiating pain into the limbs;

   (b)    lumbar spine - soft tissue injury and/or discogenic Injury to the lumbar spine with radiating pain down the right thigh/leg, and

   (c)    right shoulder - right shoulder structure (s) including partial thickness tearing in the supraspinatus with tendinopathy.

5. The following injuries referred to the Medical Assessor for assessment were assessed and determined to be not caused by the motor accident:

   (a)    lumbar spine - soft tissue injury, and

   (b)    right shoulder – rotator cuff tear.

6. Consequently, the Medical Assessor said that a decision about whether this injury was a threshold injury was not required for the purposes of the Act.

7. The following injuries referred to the Medical Assessor for assessment were assessed as being caused by the motor accident and were assessed as threshold injuries for the purposes of the Act:

   (a)    right shoulder -soft tissue injury, and

   (b)    cervical spine - soft tissue injury.

8. The Medical Assessor found the following injuries caused by the motor accident gave rise to a permanent impairment of 0%:

   (a)    right shoulder- soft tissue injury, and

   (b)    cervical spine - soft tissue injury.

Documentation

1. The parties have each presented their respective bundles of documents upon which they rely. The Panel have read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel or a Panel Member has not read it, in much the same manner as parties not referring to or not specifically relying on a document in their own bundle and submissions.

2. The fact that evidence is not referred to in these reasons does not mean it has been overlooked and nor is it required that each piece of evidence be mentioned – see WAEE v Minister for Immigration and Citizenship (2003) 75 ALO 630 at [46]. The Panel is not required to “analyse every piece of information from every opinion contained in a document with which he [it] was provided” – see Farr v Insurance Australia Limited t/as NRMA Insurance Ltd [2014] NSWSC 1435 at [46]. The Panel has come to its own conclusion and has taken its own history.

Amendment to legislation

1. The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2023 with various amendments commencing on
   1 April 2023. From 1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries.”

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

3. For motor accidents occurring on or after 1 April 2023, the entitlement to statutory benefits for a threshold injury have increased from 26 weeks to 52 weeks.

4. Accordingly, an injury which does not fall within the definition of a threshold injury “(a non-threshold injury)” means that a claimant has an entitlement to claim damages and, subject to other exclusions, receive statutory entitlements beyond either the 26-week or 52-week limitation period.

LEGISLATIVE BACKGROUND

Jurisdiction

1. The claimant’s claim is governed by the provisions of the Act.

2. Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matters, including (e) “whether the injury caused by the motor accident is a threshold injury for the purposes of the Act.”

Threshold injury

1. A threshold injury is defined in s 1.6 of the MAI Act as a “soft tissue injury” and a “threshold psychological or psychiatric 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.”

2. In summary, if a person injured in a car accident has soft tissue injuries only then, unless one of those soft tissue injuries falls within the excluding clause of s 1.6(4), the injured person’s statutory benefits cease in accordance with ss 3.11 and 3.28. If a person injured in a car accident has an injury to a structure (such as a bone) or an injury to an organ, that injury will be a non-threshold injury.

3. Section 1.6(4) provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a threshold psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder (in terms of psychiatric or psychological injuries).

4. Section 1.6(5) says that the Motor Accident Guidelines (the Guidelines) may provide for the assessment of whether an injury is a threshold injury. Relevantly to the matters in issue in the claimant’s claim, cls 5.7 to 5.9 of the Guidelines are headed “soft tissue assessment – injury to a spinal nerve root” and cl 5.7 provides:

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

5. Clause 5.8 defines radiculopathy and adopts the method of assessment provided for in the WPI chapter of Part 6 of the Guidelines.

6. 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.”

7. Clauses 5.10 to 5.12 are not relevant to the matter before the Panel as they deal with psychological or psychiatric injuries.

Method of assessment

1. 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.

   5.5    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, and

   (e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”

Does the claimant have radiculopathy?

1. Radiculopathy is a medical term used by treating doctors, medico-legal examiners and Medical Assessors. Radiculopathy is used within the Guidelines in both the assessment of WPI (to distinguish between categories II and III) and in threshold injury assessments.

2. In Chapter 5 of the Guidelines, the heading “Soft issue assessment – injury to a spinal nerve root” appears above the definition of radiculopathy in cl 5.8 as follows:

   “Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination ...

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

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

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

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

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

3. For the claimant’s injury to fall outside the definition of threshold injury in s 1.6, he would need to have two of the above signs. Pain is not one of the five signs of radiculopathy which might indicate an injury to a spinal nerve root.

The accident

1. The accident occurred on 12 October 2018. The claimant was driving a Ford Focus car in a westerly direction on Parramatta Road in Camperdown when he stopped at traffic lights. His car was hit from behind by a Volkswagen. As a result, the claimant says that he suffered immediate neck, right shoulder and back pain.

Claimant’s submissions

1. The claimant submits that:

   (a)    the Medical Assessor misapplied the correct test of causation in relation to the injuries sustained in the subject accident and the rotator cuff pathology. The claimant says that the Medical Assessor “misapplied correct test of 'minor-injury' (now known as a threshold injury)” under the Act;

   (b)    the Medical Assessor erred in finding that there was no evidence that there was a rotator cuff injury caused by the motor vehicle accident;

   (c)    the Medical Assessor erred by applying the incorrect test with respect to his approach to the assessment of radiculopathy and the comparison between one shoulder range of movement to the other;

   (d)    the Medical Assessor failed to comply with the statutory requirement for sufficient reasons;

   (e)    the Medical Assessor failed to provide reasons why the lumbar spine was found not to have been injured;

   (f)    the Medical Assessor failed to provide reasons why the injury to the cervical spine and shoulder had resolved themselves in light of the continual unbroken complaint of symptoms;

   (g)    the Medical Assessor failed to provide details (including the nature and extent) of the shoulder soft tissue injury; nor to why the claimant's rotator cuff tear was not injured (whether as new pathology or aggravation of
   pre-existing pathology) in the circumstances, and

   (h)    the Medical Assessor also failed to provide sufficient reasons to enable an understanding of the finding of symptoms complained of by the claimant in the arm/shoulder emanating from the cervical spine, and yet discounting these symptoms when assessing a radicular diagnosis and WPI.

2. Regarding the test of causation, the claimant says that although the Guidelines in cls 6.6 and 6.7 provide an incomplete statement of some of the legal principles to be applied in respect of causation, the legal principles in respect of causation must be applied, including s 5D of the Civil Liability Act 2002 (NSW) (CLA) . The claimant says that this required a detailed analysis about whether the claimant's rotator cuff injury arose as a consequence of the subject motor vehicle accident.

3. The claimant says a non-medical approach in that regard required an approach in accordance with principles in Varga v Galea [2011] NSWCA 76 at [9] that the accident was a necessary condition of the harm and Warth v Lafsky [2014] NSWCA 94. The claimant says the non-medical analysis required a detailed reasoning process with respect to whether the rotator cuff tear was either caused by or was aggravated and thereby arose as consequence of the subject accident. The claimant says that the Medical Assessor was required to embark upon an enquiry, by reference to the contemporaneous onset of pain and referred symptoms and requirement for treatment and that he failed to undertake this enquiry required of him.

4. The claimant says that the Medical Assessor recorded a history of prior incidents and conditions to which the claimant freely and voluntarily disclosed. However, the claimant says that the Medical Assessor failed to make mention of the statement of the claimant and the radiology results taken as part of the treatment obtained as part of the post motor accident treatment regime. The claimant says that such evidence is clear and leads to the unmistakeable conclusion that the Medical Assessor erred in finding that there was “no evidence” and led the Medical Assessor to fail to apply the required causal test.

5. The claimant says that it is an error that the Medical Assessor, noting this evidence in comparison with the pre accident evidence of no ongoing treatment (no pre-accident scans), symptoms, or shoulder restriction, concluded that the rotator cuff pathology was not caused by the motor vehicle accident. The claimant says that the lack of evidence of persisting pre-accident issues clearly contradicts the Medical Assessor's findings.

6. The claimant says that the Medical Assessor failed to recognise that even if the rotator cuff pathology pre-dated the motor accident, such a finding does not conclude the analysis that the Medical Assessor is required to embark upon.

7. The claimant says that the finding that the rotator cuff pathology pre-dated the injury, which the claimant says is erroneous, requires an analysis of and a reasoned decision rendered as to whether the condition was aggravated or impacted upon to make the pathology turn from an asymptomatic condition to a symptomatic condition, and by way of legal causation, referable to and caused by the subject motor vehicle accident. The claimant says that the Medical Assessor failed to turn his mind to such a proposition which was an error.

8. Regarding the findings of the Medical Assessor that any injury/aggravation has resolved, the claimant says that there is little detail about how the Medical Assessor reached this conclusion which is a finding the claimant says, in contrast to the evidence of the claimant and the medical evidence contained within the application for assessment.

The claimant submits that the errors in the Medical Assessor's approach to causation affected the manner in which he approached the assessment generally. The claimant says that the correct approach required the Medical Assessor to determine the injury sustained in the subject accident and whether the pathology was caused by or was aggravated by the motor vehicle accident. The claimant submits that the Medical Assessor failed to embark upon this enquiry and led himself into error. The claimant says that if the Medical Assessor found multiple causes for the pathology, then he was required to embark upon an analysis consistent with the principles of causation to determine whether the motor accident was a necessary condition of the harm.

Insurer’s submissions

1. The insurer has addressed the alleged errors raised by the claimant,

   ·        alleged error 1 - causation and “minor injury” assessment of the rotator cuff injury.

2. The insurer referred to the claimant’s submission that the Medical Assessor misapplied the correct test of causation of the rotator cuff injury and misapplied the “correct test of minor-injury under the Act.” The insurer submits that the Medical Assessor’s complied with the Act and the Guidelines as required.

3. The insurer submits that as far as it is able to discern, the claimants alleges:

   (a)    that the Medical Assessor “fails to make mention of the testimony of the plaintiff and the radiology results taken”;

   (b)    that the Medical Assessor did not fulfill his obligation to “embark upon an analysis” to determine whether the accident was a necessary condition of the harm after identifying multiple causes for the pathology;

   (c)    that the Medical Assessor did not consider whether the accident caused an aggravation of the shoulder condition, and

   (d)    that the Medical Assessor has not provided adequate reasons as to how he determined that the shoulder injury or aggravation had resolved.

4. The insurer submits that the Medical Assessor determined causation in accordance with the Guidelines, in particular cl 5.6, considering the claimant’s history and presentation at the assessment and all of the evidence provided by the parties:

   (a)    a comprehensive accurate history, including pre-accident history and pre-existing conditions - the Medical Assessor clearly obtained the claimant’s history of the accident, the history of symptoms and of his treatment following the accident;

   (b)    a review of all relevant records available at the assessment - the Medical Assessor extensively considered all relevant records;

   (c)    a comprehensive description of the injured person’s current symptoms - the Medical Assessor clearly recorded the claimant’s reported symptoms as well as the claimant’s reported symptoms during the clinical examination. Furthermore, the insurer says that the Medical Assessor referred to the claimant’s report of his symptoms when considering the medical evidence relied on by the parties, indicating that the Medical Assessor had not just recounted the claimant’s history, but had duly taken it into consideration when making his findings;

   (d)    a careful and thorough physical and/or psychological examination - the insurer submits that the Medical Assessor clearly conducted a thorough clinical examination which explicitly states the testing performed and the results obtained as required by the Guidelines. Furthermore, the Medical Assessor put his findings to the claimant, stating that “any discomfort, when asked about limitation in flexion and abduction, related to discomfort across the cervical spine, that is, the neck and there were no indications of pain specifically relating to the right shoulder”, and

   (e)    diagnostic tests available at the assessment - the insurer says that the Medical Assessor considered the radiology provided by both parties and referred to the relevant results throughout his determinations.

Alleged error 1(a) - mention of the testimony of the “plaintiff” or radiology results

1. The insurer referred to the claimant’s allegation that the Medical Assessor ‘fails to make mention of the testimony of the plaintiff [sic] and the radiology results taken and notes that the claimant has not specified which radiology results he alleges the Medical Assessor has failed to consider.

2. The insurer submits that this is inaccurate and refers to the claimant’s reported history and where the Medical Assessor considered the radiology results available to him.

3. Additionally, the insurer refers to the claimant’s allegation that the “vacuum of evidence of persisting pre-accident issues clearly contradicts the Medical Assessor’s findings” and submits that this is erroneous.

4. The insurer refers to Rahman v Insurance Australia Ltd t/as NRMA Insurance [2022] NSWSC 1079 at [15] referring to Azzopardi v Tasman UEB Industries Ltd (1985)

   
   

   4 NSWLR 139, where Basten AJ stated:

   “A party bearing the onus of proof cannot rely on a no evidence ground by saying that there was no evidence upon which to reject a critical fact. That would either entail a reversal of the onus of proof or an assumption that the plaintiff’s evidence has been accepted, or both. Neither course is permissible.”

5. The insurer says that given the Medical Assessor has clearly considered all of the available evidence and determined that there is insufficient evidence to support a finding that the accident caused the alleged rotator cuff tear, it is not open to the claimant, who bears the onus of proof  to allege that there was no evidence to support this finding.

Alleged error 1(b) - causation principles and analysis of whether accident was a

necessary condition of the harm

1. The insurer submits that the Medical Assessor considered all relevant evidence supplied by the parties. In particular, the insurer says that the Medical Assessor’s comments on the information provided by both parties to the Medical Assessor which directly address causation of the rotator cuff tear and/or the cause of the alleged shoulder symptoms. This information includes the reports of Dr Rae, treating shoulder consultant, Dr McIntosh biomechanic expert, Dr Breit orthopaedic surgeon, Dr Hubicki, and Dr Chen, general practitioners (GP). The insurer says that the Medical Assessor specifically identified the reports of Dr McIntosh and Dr Rae, commenting that any assumption that the claimant’s rotator cuff tear was caused by the subject accident, as asserted by the claimant, was further mitigated by those reports.

2. The insurer submits that the Medical Assessor has clearly analysed the potential pathology of the claimant’s shoulder condition. The insurer says that this analysis is evident in the certificate through the Medical Assessor’s extensive discussion and evaluation of the evidence advanced by the parties, along with consistent reference to his own findings on examination and the symptoms reported by the claimant on the date of the assessment.

Alleged error 1(c) - consideration of the aggravation of the shoulder injury

1. In relation to the claimant’s submission that the Medical Assessor did not address the potential aggravation of the shoulder condition, the insurer referred to the Medical Assessor’s comments regarding the lack of relationship between the accident-related soft tissue injuries and the rotator cuff tear. The insurer says that the Medical Assessor stated that the claimant “sustained an injury to the right shoulder in the MVA, but that it was purely a soft tissue injury, and not related or causal to the rotator cuff tear, which was not caused by the MVA.”

2. The insurer says that neither the claimant’s application nor the insurer’s reply prior to the Medical Assessor’s assessment included submissions or evidence which suggested an accident-related aggravation of the right rotator cuff tear. The insurer says that the claimant’s application for medical assessment identified the shoulder injury in dispute to be a “soft tissue injury to the right shoulder.”

3. The insurer submits that the Medical Assessor was under no obligation to provide detailed reasons why he discounted an alternative diagnosis in relation to the right shoulder, particularly one which had not been referred for determination or raised on behalf of the claimant by way of submissions or evidence.

Alleged error 1(d) - determination of the resolution of the shoulder injury

1. In relation to the claimant’s allegation that the Medical Assessor did not provide adequate reasons how he determined that the shoulder injury was a soft tissue injury, the insurer submits that the Medical Assessor’s determination was made in line with the Guidelines.

2. The insurer says that the claimant has not specified whether this allegation is in relation to the assessment of threshold injury or permanent impairment. The insurer notes that the current approach adopted by the Commission is that a threshold injury is determinable on the basis of evidence at any point following the accident and a finding as to the extent of permanent impairment is determined as at the date of assessment -  David v Allianz Australia Insurance Ltd [2021] NSWPICMP 227.

3. The insurer therefore says that a finding whether the claimant’s injury had resolved has no relevance to the determination of whether the condition was a threshold injury. The insurer says that the Medical Assessor is instead required to consider if the injury meets the definition of a threshold injury and whether the injury resulted from the motor accident (per s 4.4 of the Act) which was satisfied.

Alleged error 2 – approach to radiculopathy

1. The insurer refers to the claimant’s allegation that the Medical Assessor incorrectly determined that the claimant’s symptoms did not satisfy a finding of radiculopathy, alleging that:

   (a)    the Medical Assessor “erred by applying the incorrect test with respect to his approach to the assessment of radiculopathy”, and

   (b)    the Medical Assessor accepted that ‘the occurrence of radiating pain into the upper limb emanated from the cervical spine injury’ following the subject accident and attributed arm symptoms to both the cervical spine and shoulder injury inconsistently.

Alleged error 2(a) - incorrect test of radiculopathy

1. The insurer submits that the claimant’s submissions appear to erroneously equate “radiating pain” with “radiculopathy” as defined by section 4(1) of the Motor Accident Injuries Regulation 2017 (the Regulations) and cl 5.8 of the Guidelines. The insurer submits that the importance of this distinction is emphasised at cl 5.7 of the Guidelines which state “in assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”

2. The insurer submits that while the claimant reported some radiating pain from the cervical spine to the sides of the neck down to the shoulders but not into the arms there was explicitly no radiculopathy identified by the Medical Assessor.

3. The insurer says that the Medical Assessor directly addressed the mandatory criteria for a finding of radiculopathy set out in cl 5.8 of the Guidelines in the context of his examination of the claimant.

4. The insurer says that the Medical Assessor stated that “there has never been any evidence of radiculopathy and radiological investigations excluded any fractures.” The Medical Assessor then summarised his examination findings again, finding the claimant “would classify as a DRE I.”

5. The insurer submits that, in line with cls 5.9 and 6.138 of the Guidelines, the Medical Assessor has correctly determined that the claimant’s cervical spine injury as a result of the accident has not, at any time after the subject accident, met the assessment criteria required for a finding of radiculopathy.

6. The insurer submits there is no basis for the claimant’s allegation that the Medical Assessor has made an error in his assessment of the presence of radiculopathy in line with the definition of contained within the Guidelines.

Alleged error 2(b) - acceptance and attribution of radiating pain into upper limb

1. Regarding the claimant’s allegation that the Medical Assessor accepted that “the occurrence of radiating pain into the upper limb emanated from the cervical spine injury’ and accepted that ‘these symptoms occurred for the first time following the subject accident,” the insurer submits that this is an inaccurate reading of the certificate and notes that the claimant’s submissions make no reference to where in the certificate it is alleged that the Medical Assessor accepted these propositions.

2. The insurer also referred to the claimant alleging that the Medical Assessor attributed arm symptoms to the cervical spine when assessing the shoulder injury and then attributed cervical spine symptoms as being referrable to shoulder movements when assessing the cervical spine. The insurer submits in response to this that the Medical Assessor summarised the current report of the claimant’s symptoms, saying,

   “His present complaints pertain primarily to the right side of the neck, also radiates a little bit towards the left side of the neck, and towards the upper trapezii and suprascapular region, but there is no referral of symptoms into either upper extremity and no symptoms radiate past the shoulder tip.”

3. The insurer says that the Medical Assessor did not “attribute” cervical spine symptoms to the shoulder condition when assessing the cervical spine but merely recorded that shoulder movements elicited cervical spine symptoms, as required by the Guidelines at cl5.6 (c) and (d).

4. The insurer submits that the Medical Assessor has correctly assessed the claimant’s cervical spine condition as a soft tissue injury, and therefore a threshold injury, in compliance with the Act, the Regulation and the Guidelines.

Medical evidence

1. Medical Assessor Kenna provided a certificate dated  5 February 2024.

2. He discussed in detail the claimant’s extensive past-history and as well as the nature of the injuries from the 2018 motor accident, superimposed on an industrial accident and fall in 2003 and that since that time he has never worked.

3. The Medical Assessor noted that over time the claimant’s history was one of developing of chronic cervical and lumbar pain and subsequent motor vehicle accident in 2016 in which his GP noted right shoulder injury.

4. The Medical Assessor said that the claimant's clinical presentation then at 67 years of age was that he may well have initially sustained soft tissue injury to the cervical spine but there had never been any evidence of radiculopathy and radiological investigations excluding any fractures.

5. Going to the cervical spine the Medical Assessor confirmed that the claimant had uniform restriction of movement with no evidence of muscle spasm, radiculopathy or fractures and therefore would classify as a diagnosis related estimate (DRE) I, giving 0% WPI. The Medical Assessor also classified this as a threshold injury.

6. Regarding the lumbar spine and right shoulder, the Medical Assessor considered that there was no evidence that he sustained a rotator cuff tear in that right shoulder, taking into consideration his pre-accident history.

7. The Medical Assessor considered that the right shoulder was originally injured in the accident but that, any initial rotator cuff tear would have resolved, and any restrictions were related to the cervical spine.

8. The Medical Assessor noted that there had been some dispute as to the origin of such a tear. That is, whether the right shoulder pathology, i.e. tear of the right shoulder partial-thickness tear rotator cuff with tendinopathy, was caused by that accident as opposed to, as noted by Dr Rae, underlying extensive history of degenerative change and the prior motor vehicle accident of 2016, as well as previously working in the construction industry, heavy manual work, associated with the fall from the third floor, following which he has never worked again.

9. The Medical Assessor said that that the lumbar spine complaints were not related to the motor vehicle accident and that therefore there was no assessable impairment in relation to those injuries.

10. Regarding the cervical spine, there was uniform restriction which was associated with the level of degenerative change. The Medical Assessor said that initial aggravation had since ceased. He said there had never been a history of radiculopathy and therefore would be categorised as a DRE category I (0%WPI) and would be a threshold injury, as there was no history of radiculopathy or fracture.

11. Similarly, the Medical Assessor said that with the range of movement of the shoulders, the right shoulder movement was equal to the left. When asked, the claimant acknowledged that any movement of the shoulders was restricted due to particular elevation past 90° of flexion and abduction and which caused neck discomfort.

12. The Medical Assessor was not satisfied that soft tissue injuries to the claimant’s cervical spine and right shoulder were caused by the accident. He was not satisfied that any soft tissue injury of the claimant’s lumbar spine was caused by the accident.

13. The Medical Assessor discussed that there was clearly no evidence that the shoulder pathology as demonstrated on ultrasound scan of October 2018 was caused by the accident. He said that, taking into account the nature of the accident and the report from Dr McIntosh confirming that finding, as was the opinion of Dr Rae, the claimant’s treating surgical specialist for his right shoulder, who was of the view that shoulder pathology was degenerative, in his report of 29 April 2019.

14. Furthermore, the Medical Assessor said that the clinical findings indicated that the right shoulder discomfort essentially emanated from his cervical spine, with the claimant noting in a report from Dr Stanford that the pain was across both shoulders.

15. As noted, therefore, the Medical Assessor said that there was no evidence of

    
    

    non-verifiable radicular symptoms or indeed verifiable symptoms of radiculopathy in relation to the motor vehicle accident of 2018. Therefore the “Nguyen principle” was not applicable, as there was no assessable impairment.

16. The Medical Assessor assessed 0% WPI due to non-attributability of any injury to the accident.

17. Dr Breit provided a report of 2 December 2021 on behalf of the insurer. He noted some restriction to the cervical spine and to the lumbar spine, but no evidence of sciatic nerve root irritability on straight leg raise. Neurological assessment of both upper and lower extremities was normal.

18. In relation to the shoulders, he noted the right shoulder was dropped. That there was 130° of elevation (flexion) and 90° of abduction. In the uninjured left shoulder range of movement was also restricted but to a lesser extent.

19. Dr Breit said that there was evidence of long-standing cervical and lumbar spondylosis. He suggested that considering the claimant’s age and previous occupation, he probably did have some rotator cuff disease which was present long term as a result of being in the building trade.

20. Dr Breit then reviewed the claimant in April 2023. The claimant’s lower back pain continued to be noted, radiating into the right leg and the claimant said he could only walk approximately 100m.

21. At this review examination Dr Breit noted restricted movement of the lumbar spine, and asymmetric movement loss of the cervical spine, but that there were inconsistencies on repetition and particularly on dressing and undressing. On dressing he demonstrated movements considerably in excess of that demonstrated on clinical examination.

22. Dr Breit considered that the cervical spine could well have a causal connection to the motor accident but that both the right shoulder and lumbar spine, considering the

    
    

    past- history of injury, were both non-causal.

23. Dr Breit considered that that there was an aggravation of underlying cervical spondylosis of a minor soft tissue injury but nothing to indicate that he had sustained an injury to his right shoulder or his lower back in the accident.

24. He concluded that there was no impairment to be assessed for the right shoulder or the lumbar spine but that he had sustained soft tissue injuries of the cervical spine representing DRE category II with 5% WPI. He said that much of the clinical presentation was probably due to the pre-existing level of degenerative change.

25. The key point of the examination as noted by Dr Breit was that he the claimant gave overwhelming findings with regards to symptoms, gross inconsistency in maximisation, deliberately displaying bizarre movements and inconsistent ranges of movement.

26. Dr Breit said that there was no evidence of any injury to the right shoulder related to the accident, noting the claimant's history of right shoulder symptoms two years prior to the accident in relation to an earlier motor vehicle accident and associated with that was the degenerative nature of the pathology of the shoulder and lack of any evidence of frank injury to the right shoulder, as well as the opinion of Dr McIntosh, biomechanical engineer.

27. Dr Breit said that regarding the claimant’s right shoulder, the presentation was unrealistic, if not unreasonable and inconsistent. He considered that there was some injury to the cervical spine and there may be some restriction to the right shoulder as a result of the cervical spine, however, the range of movement was totally inapplicable, and the Guidelines deal with this issue where there is inconsistency. He concluded that there was a 1% WPI for the right shoulder, making a total of 6% WPI.

28. There are several reports from Dr Rae, shoulder specialist. He made a recommendation for an MRI both of the cervical and lumbar spine and for a recommendation for an ultrasound-guided steroid injection pertaining to the right shoulder.

29. He noted that post-accident there was a complaint of neck and right shoulder pain, as well as lower back with pain initially radiating into the posterior left thigh. On examination, six months post-accident, there was a painful arc of motion and movements were generally restricted to about shoulder height 90° of flexion and abduction.

30. Dr Rae referred to a number of X-rays which had been taken. He discussed a CT of the cervical spine which showed multiple levels of degenerative change with pre-existing mild canal stenosis and multiple areas of foraminal stenosis.

31. A CT scan of the lumbar spine also showed degenerative spondylosis which was severe in the lower lumbar spine.

32. An ultrasound of the right shoulder showed a partial-thickness tear of the supraspinatus with tendinopathy. Dr Rae noted the cervical spine appeared to be the major cause of both his neck and shoulder symptoms.

33. However, in a report of 29 April 2019, Dr Rae said that there appeared to be some contribution of his symptoms from a degenerative partial­ thickness supraspinatus tear in his right shoulder. He considered that this was not a major problem and surgical intervention was unlikely, particularly in view of a potentially poor post­ operative outcome due to his chronic smoking. Specific physiotherapy for the right shoulder was· recommended, as well as an ultrasound-guided cortisone injection.

34. A further report of 30 July 2019 said that the claimant’s presenting symptoms were diffuse and non-specific. Dr Rae said that although the claimant had a lumbar disc herniation, his symptoms were not specific for it and there were no corroborating signs.

35. The insurer relied on a biomechanical report from Dr McIntosh's dated

    
    

    20 October 2022 He said that the claimant had suffered soft tissue injury to the cervical spine and/or aggravation to already pre-existing cervical spine degenerative changes and may have temporarily aggravated symptomatically pre-existent lumbar spine musculoskeletal condition.

36. Dr McIntosh concluded that the accident was not capable of causing the constellation of the claimant’s alleged injuries, in particular a right shoulder rotator cuff tear or rotator cuff disorder.

37. He said that the accident was capable of causing a whiplash associated disorder involving the cervical spine and/or aggravation of a pre-existing cervical spine musculoskeletal disorder.

1. Dr McIntosh said that the accident was not capable of injuring the lumbar spine but may have aggravated symptomatically a pre-existing lumbar spine musculoskeletal disorder. He said the accident was not capable of causing structural injuries to the cervical or lumbar spines, for example. intervertebral disc injury.

2. Centrelink records were produced as of 2011 which was eight years post work injury and seven years pre-motor vehicle accident. These indicated that the claimant continued to experience significant low back symptoms with poor activity tolerance limits, restricted tolerance for walking of 10 minutes, sitting 15 minutes, standing 15 minutes, lifting 5kg, and with the main irritation being pain.

3. Neither Dr Chen's clinical notes of 13 October 2018, one day post-accident, nor the clinical records of his next GP, an appointment with Dr Lau two weeks later on

   
   

   29 October 2019, referred to any injury or aggravation pertaining to his lower back. The claimant was not referred for imaging of his lumbar spine until March 2019, five months after the motor vehicle accident.

4. There was no contemporaneous report of any injury to the lumbar spine following the 2018 motor vehicle accident.

5. The claimant was also seen by Dr Stanford, orthopaedic surgeon, who provided a report of 30 July 2019. He believed the lumbar spine symptoms were diffuse and

   
   

   non-specific.

6. Regarding the cervical spine, there were noted to be advanced pre-existing degenerative changes. Imaging taken possibly following a motor vehicle accident in 2016 indicated advanced degenerative change. There may also have been also a complaint of right shoulder pain as the claimant’s GP referred him to a right shoulder ultrasound but this was apparently never undertaken. The claimant’s GP at the time in 2016 was Dr Hubicki. He requested a right shoulder ultrasound and X-ray.

7. After the accident on 30 October 2018, an ultrasound confirmed a partial-thickness tear of the supraspinatus.

8. In the claimant’s statement of 31 July 2023, he refers to the fact that after the accident he had instant pain in his neck, back and right shoulder. He said that he saw his GP the following day and was told that he had damage in his neck and back and a tear in his right shoulder.

9. Medical Assessor Kenna in his certificate raised the possibility of a pre-existing history of rotator cuff pathology. The clinical records of Dr Chen from the motor vehicle accident in 2018 recorded right shoulder pain post-accident with tenderness along the right trapezius.

10. Norton Street Medical Centre. Notes only commence on 19 November 2020.

11. GP notes from the Ashfield General Practice appear to start in November 2011 without any mention of musculoskeletal complaints prior to this accident.

    Ramsey Street Medical Centre notes only make note of musculoskeletal complaints at the time of this motor vehicle accident.

Summary of relevant radiological and medical imaging and other investigations

Pre-motor vehicle accident

1. The claimant had a series of X-rays in 2016. This related to a clinical history of headaches and right-sided neck lump.

2. As a result, he underwent on 22 August 2016 a CT scan of the cervical spine, noting spondylitic changes throughout the cervical spine, most marked at C4/5, C5/6 and C6/7, where there is joint space narrowing, endplate sclerosis and small endplate osteophytes. There was moderate central canal stenosis at these levels.

   Conclusion: Osseous protuberance along the right occiput. Overall, it was a

   
   

   non-aggressive appearance indicated a differential including a bony exostosis, marked central lobular emphysema in the image lung aphesis, slightly spiculated nodule in the right upper lobe. Differentials include a primary pulmonary neoplasm..

3. 14 January 2016 - Skull and neck x-ray- Clinical history of chronic headaches. Cervical spine plain film maintained mildly lordotic alignment. There was no evidence of fracture or spondylolisthesis. Prominent endplate osteophytes at C4/5, C6 and C7 were demonstrated. There was relative narrowing of C5/6 and C6/7 disc spaces. Comment: No evidence of fracture or lesion in the skull. Degenerative changes cervical vertebra is evident.

Post motor vehicle accident

1. 30 October 2018- Ultrasound right shoulder - Clinical history: Motor vehicle accident whiplash. Seatbelt injury to right shoulder -query torn supraspinatus tendon. Conclusion: Supraspinatus partial­ thickness tear. There was supraspinatus tendinopathy, mild subscapularis tendinopathy. There was an element of adhesive capsulitis.

2. 13 June 2019 - Ultrasound-guided right shoulder injection - Clinical history of bursitis. Findings: Using aseptic technique and under ultrasound guidance, 25 gauge needle was inserted into the right subacromial/subdeltoid bursa. The patient tolerated the procedure well and no immediate complications were encountered.

3. 6 March 2019 - CT lumbar spine - Findings: Degenerative spondylosis. The L5/S1 was sacralised. No stenosis of spinal canal with exit foramina. All the nerve roots within the exit foramina are normally defined bilaterally. No evidence of nerve root impingement. Spinal alignment is anatomical. No focal destructive bone lesion or fracture detected. No defects are seen in the pars interarticularis. At L4/5 there is a posterolateral bulge of the disc to the left resulting in stenosis of left lateral recess of the spinal canal. There is also some stenosis of the left exit foramen, however the left L4 nerve root within the exit foramen does not appear impinged. At L3/4 there is a mild diffuse bulge of the disc resulting in some stenosis of the spinal canal. No stenosis at the exit foramina.

4. 12 June 2019 - MRI lumbar spine - Comment: The dominant findings are left paracentral disc extrusion at L5/S1. This extends into the left lateral recess with impingement on the descending left S1 nerve root. L5/S1 - There was a left paracentral disc extrusion extending towards the left lateral recess with impingement on the descending left S1 nerve root. No significant spinal canal or exit foraminal narrowing. At L4/5 there is a shallow broad-based posterior disc protrusion. No significant spinal canal or exit foraminal narrowing. There is early bilateral facet arthropathy. At L3/4 no focal disc protrusion. No spinal canal or exit foraminal narrowing.

   12 June 2019 - MRI cervical spine - Clinical history: Persistent right-sided neck pain. Conclusion: Multi-level degenerative changes with posterior disc osteophyte complexes from C4/5 to C6ll. There was moderately severe canal narrowing at C4/5 and moderate canal narrowing at C5/6. There was severe bilateral exit foraminal narrowing from C4/5 to C6 with potential multi-level exit nerve root impingement.

Biomechanical report

1. The insurer obtained a biomechanical report of 20 October 2022 from Dr McIntosh. He provided a summary and analysis of the circumstances and dynamics of the accident and concluded:

   (a)    the accident was not capable of causing the constellation of the claimant’s alleged injuries, in particular a right shoulder rotator cuff tear;

   (b)    the accident was capable of causing a whiplash associated disorder involving the cervical spine and/or aggravation of a pre-existing cervical spine musculoskeletal disorder, and may have aggravated symptomatically a preexisting lumbar spine musculoskeletal disorder;

   (c)    symptoms of these conditions would have likely been of a closed period of short duration;

   (d)    based on the biomechanical forces acting on the claimant, it is, plausible that the claimant suffered: a whiplash associated disorder/soft tissue injury involving the cervical spine (neck) /aggravation of pre-existing degenerative condition; and, symptomatic aggravation of pre-existing degenerative condition;

   (e)    the symptoms of these conditions are likely to have been of a closed period of short duration;

   (f)    based on the biomechanical forces acting on the claimant, it is unlikely that the claimant suffered a right shoulder rotator cuff condition involving partial tear of supraspinatus;

   (g)    the collision damage to both vehicles was indicative of elastic deformation of the bumper covers with some permanent damage. Although the photographs do not depict internal damage to either vehicle, the external damage is not consistent with substantial internal damage, and

   (h)    the accident was not capable of causing the constellation of the claimant’s alleged injuries, in particular a right shoulder rotator cuff tear.

2. Dr McIntosh noted the following entry in the clinical notes of Ashfield General Practice dated 31 May 2021:

   “●   29/10/2018 – Incident noted (2 weeks ago).

   Reported that claimant had injured right shoulder and had numbness.

   §    05/11/2018 – neck and right shoulder injury reported.

   §    24/01/2019 – still getting pain in right shoulder, and left hip and thigh.

   §    05/03/2019 – numbness down left leg

   §    03/04/2019 - claimant reported to have ongoing low back pain radiating to leg, and shoulder pain.”

3. A further clinical record of 16 October 2016 was noted by Dr McIntosh, reporting “Right shoulder pain, neck pain, headaches, ringing in right ear as a result of 02/09/2016 MVA.”

4. A selection of two photographs within the report of Dr McIntosh of the insured car, but not taken by him, follows:

[IMAGE UNABLE TO RENDER]

[IMAGE UNABLE TO RENDER]

1. From this it can be seen that the damage to the insured car seems to prevent the bonnet from closing.

2. A selection of photographs within the report of Dr McIntosh of the claimant’s car, but not taken by him, follows:

[IMAGE UNABLE TO RENDER]

[IMAGE UNABLE TO RENDER]

[IMAGE UNABLE TO RENDER]

1. Dr McIntosh said that the collision damage to both vehicles was indicative of elastic deformation of the bumper covers with some permanent damage. He said that although the photographs did not depict internal damage to either vehicle, the external damage was not consistent with substantial internal damage.

2. Dr McIntosh concluded the accident was not capable of causing the constellation of the claimant’s alleged injuries, in particular a right shoulder rotator cuff tear. The accident was capable of causing a whiplash associated disorder involving the cervical spine and/or aggravation of a pre-existing cervical spine musculoskeletal disorder and may have aggravated symptomatically a pre-existing lumbar spine musculoskeletal disorder. Symptoms of these conditions would have likely been of a closed period of short duration.

3. Dr McIntosh said that based on the biomechanical forces acting on the claimant, it is plausible that he suffered: a whiplash associated disorder/soft tissue injury involving the cervical spine (neck)/aggravation of pre-existing degenerative condition; and, symptomatic aggravation of pre-existing degenerative condition. He said that the symptoms of these conditions were likely to have been for a closed period of short duration.

4. Dr McIntosh also concluded that based on the biomechanical forces acting on the claimant, it was unlikely he suffered a right shoulder rotator cuff condition involving partial tear of the supraspinatus.

Medical examination

1. The claimant was examined by Medical Assessor Gibson on 1 November 2024. Her report follows:

   Mr Nigro attended as arranged. He was unaccompanied to the assessment. He said that he had driven from his home, the trip taking 35-40 minutes.

   PAST OCCUPATIONAL HISTORY

   Mr Nigro had worked as a carpenter in the building industry for most of his life, having commenced work with his father. He had also had his own business, a formal hire store for several years.

   RELEVANT PERSONAL DETAILS

   Mr Nigro lives alone in a one-bedroom Housing Commission apartment. He has two flights of stairs to climb. He has been in this location for five years.

   At the time of the subject accident he was living in a Housing Commission apartment in Surry Hills and this was also up two flights of stairs.

   He said that his partner (who lives elsewhere) is happy to come in and assist him when needed. He finds he is currently restricted with lifting any weights over 5kg due to his right shoulder symptoms.

   He said he is independent in self-care. He said he has to use his left hand to wash his hair. He has a railing in the shower and toilet which was installed prior to him moving in.

   PAST MEDICAL HISTORY

   Mr Nigro advised that he had been working as a carpenter on a building site in 2003 when he fell two floors. He sustained various injuries, including a low back injury. He never returned to work and was then in receipt of the Disability Support Pension largely due to his low back condition.

   I note there was a Job Capacity Assessment Report on file (20/01/2011). This gave a diagnosis of intervertebral disc disorder, which was classified as permanent. And “Functional implications: client report constant pain, which reportedly increases with activity. Reports restricted tolerance for walking (10 minutes), sitting (15 minutes), standing (15 minutes), lifting (5kg). The client reports that he is able to move his spine, but with some restriction, but the main limitation is pain.” And a neck disorder producing “constant pain and headaches, exacerbated by movements of the neck, lifting, pushing/pulling.”

   He said that prior to the subject accident he could walk normally, he could do "a few things" although he couldn’t work. He had some pain into his right leg but this was “bearable.”

   When asked about the references to right shoulder injury in June 2016 and the reported referral for ultrasound, he said "absolutely not."

   He said there had been no prior shoulder conditions, referrals or consultations that he could recall.

   There was no other history of any motor vehicle accidents, work injuries or any other medical or surgical issues prior to the accident.

   POST ACCIDENT MEDICAL HISTORY

   Mr Nigro underwent a prostatectomy for cancer four years ago, but he hadn’t required any subsequent radiotherapy or chemotherapy. And, last year he had a further procedure to address bladder leaking.

   He said that since these procedures he has required assistance at home.

   He has been in receipt of aged care support which is coordinated through the hospital where he had the prostate surgery and this has been in place now for the last 2-3 years. The support person cleans the house and washes clothes. However, he does his own shopping, as he is only a short walking distance from the supermarket and he doesn’t need to buy much.

   HISTORY OF THE SUBJECT ACCIDENT

   On 12/10/2018, Mr Nigro had been driving his Ford Focus sedan in a westerly direction along Parramatta Rd in Camperdown. He was on his way to a mass in memory of his mother who had recently passed away. He had stopped at a traffic light on Missenden Rd when his car was hit from behind by a Volkswagen sedan. The other driver had apologised, and details were exchanged. Police and ambulance had not attended the scene of the accident. The claimant reported to the police 3 weeks later (on 5/11/2018).

   He said there was immediate neck, right shoulder and worsening low back pain. He had initially driven the car into a service station where he sat down for a while due to the pain. Due to the importance of the service, he had continued his journey and attended the mass.

   The following day he had taken his car to the panel beater, but it couldn’t be repaired, so it was written off. He volunteered that NRMA made him an offer which he had declined after having advice from his lawyer.

   PROGRESS MEDICAL HISTORY

   The following morning, the low back, neck and right shoulder pain was worse. He also noted a funny sensation over his right anterior lateral thigh. When asked, he denied having had any other symptoms referred down to his right leg.

   He had seen Dr Frances Chen the day after the subject accident, and she had recorded complaints of neck and right shoulder pain.

   He visited general practitioner, Dr Lau at Ashfield General Practice on
   5 November 2018. Dr Lau noted neck and right shoulder injuries in relation to the subject accident. Mr Nigro was advised to take anti-inflammatories. It was not until 24 January 2019 that mention is made of left thigh pain, and then 5 March 2019 the doctor notes lumbar radiculopathy, as numbness down left leg.

   He was referred to a physiotherapist. He said he had several months of therapy after which the insurer refused to pay for any further treatment, and he couldn’t afford to pay for it himself.

   He had seen Dr Rae, an orthopaedic surgeon, 29 April 2019 regarding his right shoulder. Dr Rae noted that Mr Nigro had reported being:

   “…..shaken up by the accident but did not notice any immediate physical problems. He did not attend hospital and went home that day. The next morning he had developed left sided sciatica with electrical and shooting pains down the posterior thigh and leg which would intensify if he puts his foot to the floor and also give paraesthesia to the foot. He also noticed neck and right shoulder pain that are associated with headaches. He was initially treated with NSAIDs and physiotherapy but has not seen any improvement in his symptoms. While he has had chronic lower back pain, he denies he has ever had the left leg sciatica symptoms before. In terms of his shoulder his pain is mostly positional, and he is unable to perform overhead tasks.” And he concluded “His cervical spine appears to be the major cause of his neck and shoulder symptoms and an MRI of his ( cervical spine has also been ordered. There does appear to be a contribution to his symptoms from a degenerative partial thickness supraspinatus tear in his right shoulder.”

   He said he had also seen Dr Stanford, a spinal surgeon. Dr Stanford had reported on 30 July 2019 noting that he:

   “…. continues to have pain in the back of his neck, across the shoulders, headaches and low back pain. There is no pain in his lower limbs though he does have tingling diffusely in his left lower limb.”

   He had visited Dr Tringali, a GP, as she was of Italian descent and he was told she was a good doctor. This seems to have been from 19 November 2020.

   He has had no surgical procedures for his neck, back or right shoulder.

   CURRENT COMPLAINTS

   Mr Nigro described right-sided neck pain which spreads to the right trapezius region but no further, in particular there was no pain referral or symptoms extending into his right arm. He denied having any symptoms over the left side of neck or left trapezius region.

   He also reported occipital headaches which can at times be constant.

   There is midline low back pain which extends to the right paravertebral region with pain and numbness felt over the right anterolateral thigh. There were no symptoms on the left side.

   When asked specifically about the shoulder, he described pain across the top of the shoulder including the trapezial region extending to the right shoulder blade.

   On specific questioning, there were no other complaints.

   CURRENT AND PROPOSED TREATMENT

   Mr Nigro takes 4-6 paracetamol tablets a day. He uses a Spiriva inhaler for his airway’s disease.

   IMAGING Mr Nigro brought no imaging studies with him to the examination. The following was on file:

   Skull and neck x-ray performed 14 January 2016 reported as showing no evidence of fracture or lesion in the skull. Degenerative changes cervical vertebra are evident.

   CT of the cervical spine performed 22 August 2016 reported as showing spondylitic changes throughout the cervical spine, most marked at C4/5, C5/6 and C6/7, where there is joint space narrowing, endplate sclerosis and small endplate osteophytes. There is moderate central canal stenosis at these levels.

   CT lumbar spine performed 6 March 2019 showed degenerative spondylosis.

   Ultrasound right shoulder performed 30 October 2018 showed supraspinatus partial- thickness tear. There was supraspinatus tendinopathy, mild subscapularis tendinopathy. There was an element of adhesive capsulitis.

   MRI lumbar spine performed 12 June 2019 showed left paracentral disc extrusion at L5/S1. This extends into the left lateral recess with impingement on the descending left S1 nerve root. Consideration could be given to L5/S1 epidural injection or left S1 perineural injection.

   MRI cervical spine performed 12 June 2019 showed Multi-level degenerative changes with posterior disc osteophyte complexes from C4/5 to C6/7. There is moderately severe canal narrowing at C4/5 and moderate canal narrowing at C5/6. There was severe bilateral exit foraminal narrowing from C4/5 to C6/7 with potential multi-level exit nerve root impingement.

   PHYSICAL EXAMINATION

   Mr Nigro was 156cm tall and weighed 65kg. He had a wasted appearance. He was able to walk on heels and toes but reported a pulling discomfort over the right lateral thigh on heel walking.

   On examination of neck, there was no local tenderness. Flexion and extension were to half normal, rotation half normal to the left, one-third normal to the right with some muscle guarding. Lateral flexion was to a third normal bilaterally.

   On examination of the upper limbs, circumferential measurements were consistent with right hand dominance, arms measuring 26cm bilaterally (10cm above the olecranon), right forearm 24cm, left arm 23cm (10cm above the olecranon) which was consistent with right hand dominance.

   Upper limb power, sensation and reflexes were normal and symmetrical.

   On examination of the shoulders, there was asymmetry with the right shoulder depressed compared to the left and there was wasting of the right shoulder musculature. Movements were repeated on at least three occasions and goniometer was used to take the measurements. He was advised to give his best effort when measurements were taken. Active movements were as follows:

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	100°	160°
Extension	30°	30°
Internal Rotation	60°	80°
External Rotation	50°	80°
Abduction	110°	160°
Adduction	35°	50°

There was impingement in abduction on the right. When asked, he confirmed there had been no issues at all with his left shoulder. As noted before, there was also no neck pain referring to the left shoulder additionally.

When asked about the range of movement found of his left shoulder found by Assessor Kenna, he said he could not recall any special circumstances around that assessment and couldn’t recall how much he had moved his shoulder.

On examination of the low back, there was tenderness over the lower lumbar vertebrae in the midline extending to the right paravertebral region. Flexion and extension a third normal, lateral flexion half normal bilaterally, rotation normal range bilaterally. There was no asymmetry, muscle spasm or guarding.

On examination of the lower limbs, circumferential measurements, 36cm at the thighs (10cm above the upper pole patella), 34cm at the calves (maximal girth). There was normal power and reflexes bilaterally. There was numbness over the anterior lateral aspect of the right thigh. Straight leg raise was 70° bilaterally when supine and 60° when seated, each with complaints of low back pain. Neurotension signs were negative bilaterally.

SUMMARY AND OPINION

Mr Nigro was injured in the subject accident of 12 October 2018, sustaining soft tissue injuries to his neck and low back.

In relation to the right shoulder, there was no doubt there was pre-existing degenerative changes involving the right shoulder on account of his age and work history.

However, the panel could not exclude, given the post- subject accident imaging and contemporaneous complaints, there being, at a minimum, some extension of a pre-existing shoulder tendon tear or even a new tear in an already compromised right shoulder. Mr Nigro had presented to his GP, Dr Frances Chen on the day after the subject accident, and she recorded complaints of “headaches, whiplash, right shoulder pain.” And on examination “reduced right shoulder movement, tender alone (sic) right trap muscle + shoulder and neck.” By way of comment, there was not only right trapezial pain, which could reflect the whiplash injury, there were specific right shoulder symptoms. And Dr Rae, an orthopaedic surgeon, on 29 April 2019 concluded:

“His cervical spine appears to be the major cause of his neck and shoulder symptoms and an MRI of his cervical spine has also been ordered. There does appear to be a contribution to his symptoms from a degenerative partial thickness supraspinatus tear in his right shoulder.”

In other words, there is evidence of new right shoulder symptoms, a shoulder tendon tear that was not previously demonstrated, and potentially a tendon already impacted by degenerative change, that could well have rendered it more vulnerable to even a minor insult.

THRESHOLD DECISION

The following injuries were referred by the Commission for assessment:

1.     Cervical spine - Soft tissue injury and/or discogenic injury to the cervical spine with radiating pain into the limbs;

2.     Lumbar spine - Soft tissue injury and/or discogenic Injury to the lumbar spine with radiating pain down the right thigh/leg, and

3.     Right shoulder - Right shoulder - right shoulder structure (s) including partial thickness tearing in the supraspinatus with tendinopathy.

Section 1.6(2) of the Act states:

“A soft tissue injury is (subject to this section) an 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.”

Schedule 1 [2] clause 4 of the Motor Accident Injuries Regulation 2017:

“1) An injury to a spinal nerve root that manifests in neurological signs (other than radiculopathy) is included as a soft tissue injury for the purposes of the Act.”

And Radiculopathy is defined in the Guides as impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with “Part 6 of the Motor Accident Guidelines: Permanent impairment:”

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

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

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

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

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

Cervical spine

There was no radiculopathy on clinical examination. There were no imaging findings that would suggest the subject accident had caused any injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.
Therefore the cervical spine injury is a THRESHOLD injury.
Lumbar spine

There was no radiculopathy on clinical examination. There were no imaging findings that would suggest the subject accident had caused any injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.

Therefore the lumbar spine injury is a THRESHOLD injury.

Right shoulder

The panel could not exclude, in the absence of prior imaging, that the right shoulder ultrasound findings were new and given the early presentation of right shoulder complaints, related to the   subject accident, by way of a new tear or even extension of an existing tear in an already vulnerable shoulder. Therefore, it is the finding of the Panel that the accident had caused an injury which was outside of the scope of the soft tissue definition as outlined in the legislation.

Therefore the right shoulder injury is a NON - THRESHOLD injury.

IMPAIRMENT

Cervical [Cervicothoracic] spine

There were complaints of pain or symptoms, but without vertebral body compression or vertebral fracture. There were clinical findings (asymmetry/guarding) as detailed in the MAA Guidelines. There was no inconsistency identified on examination of the cervical spine.

Thus, in reference to MAA Guidelines the cervical spine injury would be assessed at DRE Impairment Category II, thus 5% permanent WPI.

Whilst the panel is aware of the findings of the original assessor with respect to the cervical spine. Clause 6.21 of the Guidelines states that “The evaluation should only consider the impairment as it is at the time of the assessment.” The panel also notes the presence of significant pre-existing degenerative changes identified on imaging. Clause 6.121 states that imaging studies alone are insufficient to qualify for a DRE category. And furthermore, cl 6.31 states:

“The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored.”

Lumbar [Lumbosacral] spine

There were complaints of pain or symptoms, but without vertebral body compression or vertebral fracture. There were no clinical findings as detailed in Table 7, MAA Guidelines [2018]. Thus in reference to MAA Guidelines the lumbar spine injury would be assessed at DRE Impairment Category I, thus zero percent permanent WPI.

Right shoulder

Shoulder ROM	ROM RIGHT	%UEI	ROM LEFT	%UEI
Flexion	100°	5	160°	1
Extension	30°	1	30°	1
Internal Rotation	60°	2	80°	0
External Rotation	50°	1	80°	0
Abduction	110°	3	160°	1
Adduction	35°	1	50°	0
13	3

The Guidelines state if the contralateral uninjured joint has a less than average mobility, the impairment value corresponding with the uninjured joint can serve as a baseline and are subtracted from the calculated impairment for the injured joint only if there is a reasonable expectation that the injured joint would have had similar findings to the uninjured joint before injury. The panel noted there was no prior or subsequent left shoulder condition and so the left shoulder would reasonably be expected to reflect the impairment of the injured right shoulder, had it not been injured in the subject accident.

The panel then considered whether any deduction should be made for a pre-existing right shoulder condition.

The Guidelines state at s 6.31

“The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored.

6.32 The capacity of a medical assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA 4 Guides (page 10): 'For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.’”

There was no objective evidence of the degree of pre-subject accident impairment on which an assessment of whole person impairment of the right shoulder could be calculated.

UEI 13% - 3% - 10%UEI = 6% WPI using Table 3, AMA 4

The total WPI assessment for the claimant’s right shoulder is 6%.

1. The combined WPI assessment for the claimant’s right shoulder and cervical spine is 11%.

2. The Panel met on 14 July 2025 to discuss the findings of Medical Assessor Gibson on examination. Neither the legal Member of this Panel nor Medical Assessor Wan participated in the medical examination but prior to the Panel meeting on 14 July 2025, the legal Member and Medical Assessor Wan had the benefit of reading and considering Medical Assessor Gibson’s examination report. On 14 July 2025 the Panel met and all discussed the examination findings and the issues going to causation, assessment of threshold injury and assessment of WPI. Further discussions and analysis ensued. Further communications and discussions have taken place between the Panel. It is from this teleconference on 14 July 2025 and the further subsequent discussions of the Panel that the Panel has agreed and reached its final conclusion and determination.

3. The Panel adopts the findings and report of Medical Assessor Gibson.

Causation

1. The claimant in his submissions has raised issues about the method of determining causation for consideration by the Panel. In the circumstances, the Panel will deal with this in detail.

The Motor Accident Guidelines

1. The Guidelines identify the test for causation in cls 6.6 and 6.7.[1]

   [1] Causation is defined in the Glossary at page 316 of the American Medical Association Guides 4th edition (AMA 4 Guides). It is in the same terms as cl 6.6 of the Guidelines.

   Clause 6.6 provides:

   “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:

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

   (b) The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.”

   Clause 6.7 provides:

   “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.”

The authorities

1. In Ackling v QBE Insurance (Aust) Ltd,[2] Johnson J indicated that the task of a review panel in assessing whether an injury was caused by the relevant accident is "a practical one." His Honour also observed that a review panel will derive practical assistance from the Guidelines when undertaking the task of assessing causation.[3]

   [2] [2009] 75 NSWLR 482; [2009] NSWSC 881.

   [3] At [87]. Justice Johnson was then referring to the predecessors to cls 6.5-6.7 of the Motor Accident Guidelines, being cls 1.7-1.9 of the Permanent Impairment Guidelines.

2. Section 5D of the CLA also needs to be considered when assessing causation.

3. Section 5D of the CLA provides:

   "General principles

   (1)     A determination that negligence caused particular harm comprises the following elements:

   (a) that the negligence was a necessary condition of the occurrence of the harm ('factual causation), and

   (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ('scope of liability')."

4. There are two elements to address when assessing causation under s 5D(1):

   “●      factual causation,[4] and

   ·        scope of liability.[5]”

   [4] See s 5D(1)(a) of the CLA - this is the statutory restatement of the “but for” test (see Adeels Palace Pty Ltd v Moubarak [2009] 239 CLR 420; [2009] HCA 48 at [45]) i.e. but for the negligent act or omission, would the harm have occurred?

   [5] See s 5D(1)(b) of the CLA. See Adeels Palace at 42; Wallace v Kam [2013] 250 CLR 375; [2013] HCA 19 at [12].

5. Assessing "factual causation" and "scope of liability" involves making value judgments.[6]

   [6] There is a conflict between s 5D and the Guidelines. Section 5D requires the use of the “but for” test and the Guidelines state that while the “but for” test may be useful in some cases, it “is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”

6. In the accident involving the claimant, in which he was the driver of his car, a rear end collision occurred with the insured car. It was sudden and might not have been with some degree of force according to the conclusion of Dr McIntosh. Photographs of the car in which the claimant was travelling indicate only slight damage to the car which was able to be driven after the accident. On the observations of the Panel, the damage was minor and not indicative of a significant impact. Similar observations can be made from photographs of the insured car.

7. The claimant is 68 years of age now. At the time of the accident, he was 64 years of age. The claimant last worked in 2003 after he suffered a work injury which thereafter left him incapacitated for work.

8. The claimant had been on a disability pension since 2003 following a fall from a height of 5m at a worksite.

9. The claimant may have also had another motor vehicle accident in 2016. There was a suggestion that he had injured his right shoulder then but there are limited records about this. At that time, the claimant’s GP recommend a scan of the right shoulder but none was apparently undertaken.

10. Ramsay Street clinical notes record an entry on 16 October 2016 as follows:

    “was seen today for an MVA he reports sustained on 2/9/16. He reports being a belted passenger, the airbag didn't go off.

    He now complains of right shoulder and neck pain with some headaches and a constant ringing in his right ear since then.

    I am referring him for an Ultrasound and x ray today.”

11. There was no follow up reporting of the outcome of any ultrasound investigation, if it occurred.

12. Clearly there is a written notation by way of clinical notes that the claimant had injured his right shoulder in 2016. However, there are no other records about this. When questioned about an incident in 2016 at the medical examination by Medical Assessor Gibson, the claimant denied any incident or knowledge though, of this.

13. When Medical Assessor Kenna enquired of the claimant about this accident in 2016 he noted that there were:

    “very little details pertaining to that. He (the claimant) barely acknowledged that he had been in an accident in 2016 and it was only brought up when I noted his pre-2018 motor vehicle accident x-rays, but I can confirm that he didn't undergo an x-ray of the right shoulder but he did undergo investigations pertaining to his cervical spine, as he had post-traumatic tinnitus.”

14. So, to Medical Assessor Kenna, the claimant acknowledged the 2016 motor accident albeit barely but to Medical Assessor Gibson, he denied any accident.

15. It is perplexing to the Panel that there is another entry in the clinical notes dated

    
    

    25 October 2020, where Dr Hubicki stated that:

    “… He presents today with a letter from his solicitor asking that his record from 16/10/2016 be deleted. The record indicated he reported then to be a passenger in an MVA that had occurred 6 wks prior to that. An US and Xray were ordered at that time. He has subsequently been involved in a MVA in 2018 and is pursuing a claim. I wrote a letter today indicating I am unable to delete that record from 2016…”

16. The Panel questioned the claimant’s solicitor about the entry of 25 October 2020 but he was unable to assist the Panel as he was not acting for the claimant at that time. The identity of the solicitor acting for the claimant in 2020 is not known by the Panel and the Panel accepts that the claimant’s current solicitor did not write to Dr Hubicki on 25 October 2020.

17. The two entries though of 16 October 2016 and 25 October 2020 clearly do exist and while the claimant denied any accident to Medical Assessor Gibson on enquiry, he did not deny this to Medical Assessor Kenna.

18. The claimant, in his statement of 23 July 2023 has not sought to refer to the suggestion of a pre-existing injury to his shoulder in 2016 to either deny it or to explain it. The Panel would have expected the claimant to address this in his statement when Medical Assessor clearly attributed the possibility of an earlier right shoulder injury arising from a motor vehicle accident in 2016 or from earlier work-related conditions.

19. With this accident, it was a low impact collision. Photographs of the claimants damaged car do not indicate extensive damage and Dr McIntosh said as much.

20. On examination the claimant’s left and right shoulder movements were not identical.

21. Dr Breit said there were considerable inconsistencies on repetition and particularly dressing and undressing.

22. Regarding the engineering/ergonomic report from Dr McIntosh, he said the accident would not have caused an injury to the claimant’s right shoulder or back.

23. Dr McIntosh concluded that based on the biomechanical forces acting on the claimant, it was unlikely he suffered a right shoulder rotator cuff condition involving partial tear of supraspinatus. His reference to the word “unlikely” does not make such a condition though, impossible. The claimant’s inertia seatbelt would have crossed his right shoulder and the possibility of a seatbelt injury to his right shoulder is not negligible.

1. Dr McIntosh noted that minor damage to both vehicles occurred during the accident and determined the impact was a result of a low speed rear end collision. Dr McIntosh determined “The accident was not capable of causing the constellation of the Claimant’s alleged injuries, in particular a right shoulder rotator cuff tear.” Dr McIntosh determined that the accident was capable of causing whiplash disorder/soft tissue injury and /or aggravation of a pre-existing cervical spine condition. Dr McIntosh found the accident was not capable of injuring the claimant’s lumbar spine but may have aggravated the pre-existing lumbar condition.

2. The claimant also does have a disc herniation of the lumbar spine but this was thought to be from the 2003 fall. There are no contemporaneous reports of lumbar pain following the 2018 accident. Discogenic pain is pain originating from a damaged vertebral disc, particularly due to a trauma or degenerative disc disease. There does not appear to be however, evidence of a damaged vertebral disc consequent upon the accident.

3. The ultrasound of the right shoulder on 30 October 2018 showed a partial tear. Medical Assessor Kenna says it is soft tissue only but does not really give reasons to substantiate this.

4. Dr Chen in a clinical entry of 13 October 2018 noted reduced right shoulder movement and that the claimant was tender in the right shoulder. This is contemporaneous to the accident.

5. The police report referred to a low-speed incident.

6. The claimant was noted by Dr McIntosh as having sought a parking permit renewal in 2017, before the accident the subject of this claim as a result of severe musculoskeletal trauma associated with his fall in 2003. This information is contained in Table 4 of his report dated 20 October 2022 and referring to Ramsay Street Medical Practice clinical notes following a consultation at the practice on 23 November 2017.

7. Qiang Li clinical records note an initial chiropractic appointment on 2 November 2018 with reported neck pain and stiffness, right shoulder pain, lower back pain, tingling in right upper limb, headaches, dizziness and disturbed sleeping.

8. Dr Rae, shoulder surgeon, treated the claimant and provided a report of 29 April 2019. He referred to an ultrasound of the claimant’s right shoulder of 30 October 2018 which showed a partial thickness tear of supraspinatus and tendinopathy. The claimant had a painful arc of motion. Pain was mostly positional, and he was unable to perform overhead tasks. Dr Rae attributed the partial thickness supraspinatus tear in the claimant’s right shoulder to his degenerative condition and not the subject accident.

9. The claimant had recorded shoulder pain after the accident. He had an ultrasound

   
   

   18 days following the accident and this revealed a partial thickness tear. He had not been treated prior to the accident for shoulder disability, and it is not, in the opinion of the Panel, likely to have been a pre-accident problem as he did not demonstrate symptoms prior to the accident. However, minor tears of a rotator cuff which are not symptomatic is common as people get older. The Panel must consider whether this was an aggravation or was it more pronounced and acutely and then chronically symptomatic as a result of the accident? Dr McIntosh says the forces involved were not sufficient to cause an injury of this nature.

10. The claimant consulted his GP on 13 October 2018, the day following the accident and complained of “headaches, whiplash, right shoulder pain.” On examination he had right shoulder pain and was tender along the right trapezius muscle as well as the shoulder and neck.

11. In the claimant’s statement of 31 July 2023, he says that in his work accident he injured his back, but he has never had a problem with his neck and shoulders which were fully functioning before the subject motor vehicle accident.

12. The claimant says that the day following the accident he attended his GP and was told that he had damage to his neck, back and a tear in his right shoulder. This is not borne out by the clinical notes. It is recorded though that the claimant had significant reduced range of motion in all directions in his right shoulder following a consultation on
    2 November 2018.

13. Following the accident on 12 October 2018, the claimant had an ultrasound examination of his right shoulder on 30 October 2018. This reported,

    “Motor vehicle accident whiplash. Seatbelt injury to right shoulder -query torn supraspinatus tendon. Conclusion: Supraspinatus partial­ thickness tear. There was supraspinatus tendinopathy, mild subscapularis tendinopathy. There was an element of adhesive capsulitis.”

14. Photographs of the car in which the claimant was travelling, possibly taken a short time after the accident but the time is not known to the Panel, show limited body damage to the rear panel of the car. From this, the Panel discerns from general experience, that the impact was not one involving high speed and to the contrary, was a low impact collision. As Dr McIntosh said air bags do not appear to have been deployed in either car. Against this, the claimant says that his car was written off as it could not be repaired. The Panel notes that there is no evidence before it to confirm this. Given that the damage is limited to the claimant’s car, it is not apparent that this would have been sufficient to write the car off for insurance purposes. The Panel notes however that it does not know the market value of the claimant’s car at the time of the accident nor is it aware of the cost of repairs. 

15. The Panel is mindful that a lack of reported complaint of constant pain or disability relative to the claimant’s right shoulder and an associated rotator cuff tear should not preclude a conclusion that this condition arose from the accident.

16. Scientifically, there is a possibility that the accident could have caused a rotator cuff tear although Dr McIntosh does not accept this. The Panel must consider, did the accident contribute to the claimant suffering injury to his cervical spine, his lumbar spine and his right shoulder, noting his work injury accident in 2003 which prevented him from working thereafter? The claimant though, says that it was only his lumbar spine that caused continuous difficulties following his 2003 workplace incident.

17. On the balance of probabilities, can it be said that the rotator cuff tear suffered by the claimant and his soft tissue injuries to his cervical and lumbar spines, was caused by the accident? The Panel is satisfied that this is the case. The claimant, at the time of the accident, was 64 years of age. He had though, been suffering physical disabilities since 2003 which had prevented him from working and for which he had been in receipt of a disability pension.

18. As Medical Assessor Gibson reported, there is evidence of new right shoulder symptoms, a shoulder tendon tear that was not previously demonstrated, and even had the tendon been in a weakened state as a consequence of the degeneration, the subject accident could have produced the tear de-novo or even increased the extent of the said tear.

19. Would the impairment have occurred, if not for the accident?  Whilst the damage to the claimant’s car does not appear very severe. The Panel considers that it is important that the claimant had a very early presentation to his GP, following the accident in 2018, with specific neck and shoulder symptoms and in particular reduced right shoulder movements.

20. The claimant was not being treated for shoulder symptoms, left or right, at the time of the accident. He complained of injury to his right shoulder at the time of the accident, and it is feasible that this could have been injured by the seat belt strain on impact.

21. According to the Guidelines, MRI and CT findings are not used to decide DRE grading. It is only the physical findings which are considered (whether DRE category I or II). Other factors such as a spinal fusion may affect the grading DRE category III / IV but this is not relevant for this claimant.

22. Radiculopathy is a purely clinical diagnosis, and radiological findings are not considered. There was no radiculopathy evident on examination.

23. Pre-existing degenerative changes can suggest possible symptoms and signs but are  not adequate to assess the DRE grading. Only physical findings of medical or physio can be used to assess the DRE. 

24. Accordingly, the Panel is satisfied that the accident and impact has had a more than negligible effect on the condition suffered by the claimant.

CONCLUSION

1. This is a dispute between the claimant and the insurer about: whether the injury caused by the accident is a threshold injury under Schedule 2, s 2(e) of the Act.

2. Following on from this, in the event of a non-threshold injury having been suffered by the claimant, the Panel must consider the extent of his WPI. The Panel is not satisfied however, that as a result of the accident on 12 October 2018 that the claimant has suffered a non-threshold injury. The Panel finds that the claimant has suffered threshold injuries to:

   (a)    cervical spine - soft tissue injury, and

   (b)    lumbar spine - soft tissue injury.

3. The Panel is satisfied that the claimant has suffered a non-threshold injury to:

   (a)    right shoulder – supraspinatus partial- thickness tear.

   The conclusion of the Panel and Medical Assessor Kenna are different for reasons explained within the Panel’s reasons. On this basis, the Panel revokes the certificate and reasons of the Medical Assessor and issues a new certificate and reasons.O FINA

DETERMINATION

1. The Panel revokes the certificate of Medical Assessor Kenna dated 5 February 2024.

2. The Panel finds that the claimant has suffered threshold injuries:

   (a)    cervical spine - soft tissue injury, and

   (b)    lumbar spine - soft tissue injury.

3. The Panel finds that the claimant has suffered a non-threshold injury:

   (a)    right shoulder – supraspinatus partial- thickness tear.

4. The Panel assesses 11% WPI for the claimant’s injuries.