QBE Insurance (Australia) Limited v Abdi
[2025] NSWPICMP 442
•23 June 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | QBE Insurance (Australia) Limited v Abdi [2025] NSWPICMP 442 |
CLAIMANT: | Abdi |
INSURER: | QBE Insurance (Australia) Limited |
REVIEW PANEL | |
MEMBER: | Alexander Bolton |
MEDICAL ASSESSOR: | Dr Christopher Oates |
MEDICAL ASSESSOR: | Dr Margaret Gibson |
DATE OF DECISION: | 23 June 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); threshold injury; claimant claimed tears to his shoulders and his knees as a result of the accident but insurer denied this same the condition was degenerative; claimant had been involved in an earlier accident in 2017 involving similar body areas of injury to the subject accident; issue about the age of the shoulder and knee tears; no complaint by the claimant at the time of the accident and immediately thereafter of acute pain in the shoulder and KNEES; Held – Review Panel not satisfied that the tears were anything other than age-related and a degenerative condition. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION 1. The Panel affirms the certificate of Medical Assessor Home dated 2. The Panel find that the following injuries were caused by the motor accident: · cervical spine -soft tissue injury, underlying degenerative change; · lumbar spine -soft tissue injury, underlying degenerative change; 1. left knee -patellofemoral contusion, soft tissue injury, underlying degenerative change; · right knee - patellofemoral contusion - soft tissue injury, underlying degenerative change; · left shoulder -soft tissue injury, and · right shoulder - soft tissue injury. The Panel finds that the claimant has suffered threshold injuries. |
PERSONAL INJURY COMMISSION
MOTOR ACCIDENTS DIVISION
REVIEW OF MEDICAL ASSESSMENT
Matter number: | M23777/24 | |
Claimant: | Navid Abdi | |
Insurer: | QBE Insurance (Australia) Limited | |
Review Panel: | Member Alexander Bolton Medical Assessor Christoper Oates Medical Assessor Margaret Gibson | |
Date of determination: | 23 June 2025 | |
Representation | claimant: | Mr Stephen Young |
| insurer: | Ms Alexandra Kyprianos | |
CERTIFICATE OF DETERMINATION
The Panel affirms the certificate of Medical Assessor Home dated
28 October 2024.The Panel find that the following injuries were caused by the motor accident:
· cervical spine -soft tissue injury, underlying degenerative change;
· lumbar spine -soft tissue injury, underlying degenerative change;
2. left knee -patellofemoral contusion, soft tissue injury, underlying degenerative change;
· right knee - patellofemoral contusion - soft tissue injury, underlying degenerative change;
· left shoulder -soft tissue injury, and
· right shoulder - soft tissue injury.
The Panel finds that the claimant has suffered threshold injuries.
INTRODUCTION
The claimant has sought a review of the certificate and reasons of Medical Assessor Home (the Medical Assessor) dated 28 October 2024.
The Medical Assessor found that the following injuries were caused by the motor accident:
(a) cervical spine - soft tissue injury, underlying degenerative change;
(b) lumbar spine - soft tissue injury, underlying degenerative change;
(c) left knee - patellofemoral contusion, soft tissue injury, underlying degenerative change;
(d) right knee patellofemoral contusion - soft tissue injury, underlying degenerative change;
(e) left shoulder -soft tissue injury, and
(f) right shoulder-soft tissue injury -resolved,
were threshold injuries for the purposes of the Motor Accident Injuries Act 2017 (the Act).
The following injuries were referred by the Personal Injury Commission (Commission) for assessment:
(a) cervical spine;
(b) lumbar spine;
(c) left knee;
(d) right knee;
(e) left shoulder, and
(f) right shoulder.
There is a dispute between the claimant and the insurer about: whether the injury caused by the motor accident is a threshold injury under Schedule 2, s 2(e) of the Act.
Amendment to legislation
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”.The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
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.
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
The claimant’s claim is governed by the provisions of the Act. This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the Act, there are some disentitling provisions and limits to the amount and extent of benefits available. One of which is that, under ss 3.11(1) and 3.28(1) of the Act, statutory benefits cease 52 weeks after the motor accident if the only injuries sustained by the injured person are “threshold” injuries.
It should also be noted that in a common law damages claim, no damages are recoverable if the claimant’s injuries are “threshold” injuries.
Pursuant to Schedule 2, cl 2 of the Act, various matters are declared to be 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
A threshold injury is defined in s 1.6 of the 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.”
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 not be a non-threshold injury.
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).
Section 1.6(5) says that the Motor Accident Guidelines (the Guidelines) may provide for the assessment of whether or not 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.”
Clause 5.8 defines radiculopathy and adopts the method of assessment provided for in the whole person impairment chapter of Part 6 of the Guidelines. Clause 5.9 then provides:
“Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury.”
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
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 MAI 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 Diagnostic imaging is not considered necessary to assess threshold injury.
5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Does the claimant have radiculopathy?
Radiculopathy is a medical term used by treating doctors, medico-legal examiners and Medical Assessors alike. Radiculopathy is used within the Guidelines in both the assessment of whole person impairment (to distinguish between categories II and III) and in threshold injury assessments.
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
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
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.
Bundles of documents
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.
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.
The accident
The accident occurred on 13 July 2023. The claimant was wearing his seatbelt and stationary while driving a 2018 model station wagon. His car was hit from behind and then he was pushed into the vehicle in front. Air bags did not deploy.
The claimant was able to alight from his car with assistance from a passer-by. He exchanged details. His partner came to the scene and drove him to his home. He did not seek initial medical treatment.
The claimant’s submissions
The claimant submits the following issues in dispute:
(a) failure to give full consideration to medical evidence;
(b) failure to provide adequate reasoning and/or explanation for findings, and
(c) denial of procedural fairness.
Failure to give full consideration to medical evidence
The claimant says that the Medical Assessor had stated on page 14 of his certificate:
“Left shoulder
The injuries listed above are threshold injuries. I am satisfied the injuries meet the definition of soft tissue injuries.
There is no evidence of injuries to the nerves, complete or partial rupture of tendons, ligaments, menisci or cartilage.”
However, the claimant says that the Medical Assessor identified at page 3 of his certificate:
“Reference is made to the report of Dr Herald, treating orthopaedic surgeon, who identified medial meniscal tears in both knees with partial thickness tears in the subscapularis of the left shoulder and the biceps tendon. MRI scans of the lumbar scan had shown lumbar spondylosis.”
The claimant noted that in the report of Dr Herald dated 26 June 2024 he stated:
“MRI scans show a medial meniscal tear bilaterally in both knees. He has a partial-thickness tear in his subscapularis of the left shoulder and biceps tendon. He also has an MRI scan of his lumbar spine showing lumbar spondylosis but no imaging of his cervical spine.”
The claimant therefore submits that there was evidence of injuries to the nerves, complete or partial rupture of tendons, ligaments, menisci or cartilage, given the left shoulder tear identified in the report of Dr Herald.
The claimant submits that as the Medical Assessor identified that there was no pre-accident injury to the claimant’s left shoulder, but had identified in his report that there was a left shoulder tear therefore the claimant submits that his comments at page 14 are incorrect.
The claimant also referred to a statement of the Medical Assessor at page 12 of his report where he said:
“I have reviewed the reports of Dr Antoun and his conversations with reporting radiologist Dr Younis, who confirmed no acute features. I find that the mechanism of accident would be unlikely to cause a subscapularis tear, as a tear in the subscapularis requires an abduction and extension of force to the shoulder, which would not be caused by the mechanism of the accident.”
In this regard the claimant further submits that the Medical Assessor had commented
Dr Antoun had stated “It was noted that it was difficult to determine the age or relevance to the subject accident.”
The claimant says that the Medical Assessor has also stated “Dr Younis noted pathology throughout the shoulder, commenting it was unusual in this age-group, but difficult to determine whether it was chronic or recent pathology”.
The claimant submits that it is clear that Dr Antoun could not even confirm whether the opinion was absolutely correct, but the Medical Assessor had relied on the medical assessment. The claimant says that if there was any inconsistency with this then it should have been raised to the claimant and the claimant should have been given the opportunity to address the inconsistency. The claimant says that the Medical Assessor has failed to do so.
Regarding the claimant’s left and right knees he submits that the Medical Assessor referred to MRI scans of both knees dated 28 February 2024 showing in both knees horizontal oblique tears along the posterior horn. However, the claimant says that the Medical Assessor said at page 12 of the certificate;
“With regard to the knee complaints, I am satisfied the mechanism of accident could cause an injury to the anterior aspect of both knees, due to direct impact. The post-accident imaging demonstrates underlying degenerative changes in the medial meniscus of each knee, where there is a degenerative tear seen. There is underlying lateral compartment chondropathy noted (underlying degenerative change).”
The claimant submits that there is a conflict between what the Medical Assessor stated at page 14 of his certificate and throughout his certificate.
The claimant submits that the Medical Assessor has not provided adequate and sufficient reasoning and explanation about what he means by “… not consistent with the causations from the subject motor vehicle accident which involved rear and then front on impact”. The claimant says that this sentence is vague and not capable of interpretation.
The claimant says that his medical history has only identified injury to the left shoulder and both knees after the subject motor accident. However, inconsistently, the Medical Assessor has stated that “I am satisfied the mechanism of accident could cause an injury to the anterior aspect of both knees, due to direct impact”. Following on from this the Medical Assessor concluded the tears in both knees were not related to the accident but due to degenerative changes.
However, the claimant says that the Medical Assessor has stated at page 12 of his certificate:
“The underlying tearing in the medial meniscus of both knees reflects underlying degenerative change and is not consistent with the causations from the subject motor vehicle accident which involved rear and then front on impact, where patellofemoral impact is the likely cause of his symptoms.”
Following on from this, the claimant says that the Medical Assessor has not provided adequate and sufficient reasoning and explanation by what he means by “… not consistent with the causations from the subject motor vehicle accident which involved rear and then front on impact”. The claimant submits that this sentence is vague, and not capable of interpretation.
The claimant cited cl 6.41 of the Guidelines which says;
“Where there are inconsistencies between the medical assessor's clinical findings and information obtained through medical records and/or observations of non-clinical activities, the inconsistencies must be brought to the injured person's attention; for example, inconsistency demonstrated between range of shoulder motion when undressing and range of active shoulder movement during the physical examination. The injured person must have an opportunity to confirm the history and/or respond to the inconsistent observations to ensure accuracy and procedural fairness.”
The claimant says that the Medical Assessor has failed to provide the claimant with the opportunity to address the inconsistency.
Insurer’s submissions
The insurer says that the claimant did not attend his general practitioner (GP), Dr El Azzi until 22 July 2023 which was nine days after the accident. At that time he reported the subject accident and injuries to the neck, right shoulder, right hand (numbness), lower back pain and headache on his left side. On 2 August 2023 the claimant returned to Dr El Azzi, complaining of cervical and lumbar spine tenderness and pain in the knees, which was worse on the left, as well as bilateral shoulder pain. He was referred for an MRI scan and advised to continue taking analgesia.
Left shoulder
The insurer referred to the claimant submission that the Medical Assessor had failed to have regard to the report of Dr Herald, treating orthopaedic surgeon, who noted a partial thickness tear in the subscapularis of the left shoulder however, the insurer noted at page 3 of the certificate the Medical Assessor recorded:
(a) “Reference is made to the report of Dr Herald, treating orthopaedic surgeon, who identified medial meniscal tears in both knees with partial thickness tears in the subscapularis of the left shoulder and the biceps tendon”, and
(b) at page 9 of the certificate the Medical Assessor records “I reviewed the Report of Dr Herald, dated 26 June 2024, setting out the accident of 13 December 2023, and this time he described pain at the neck, back and bilateral knees, and left shoulder pain. He opined that MRI scans showed a medical meniscus tear bilaterally in both knees, but the partial thickness tear of the subscapularis of the left shoulder and biceps tendon.”
The insurer submits it is clear the Medical Assessor reviewed and considered the evidence of Dr Herald and the radiology to which he referred.
The insurer referred to the claimant’s assertion that because there were pre-accident scans of the left shoulder available where tears were not recorded, they were likely accident related. The insurer noted the pre-accident scans of the left shoulder were limited to an ultrasound and an X-ray. The post- accident scan was an MRI. As such, the insurer submits that the pre-accident scans were less detailed than the post-accident scan. Accordingly, the insurer says that a direct comparison by the Medical Assessor was inappropriate, but it is clear that he has considered pre and post-accident radiology during his assessment.
The insurer submits that the findings of the MRI are not in dispute. Rather, the insurer says that the issue for consideration by the Medical Assessor was the causal connection between those findings and the subject accident. In this regard, the insurer submitted that the Medical Assessor also had regard to other available and relevant evidence and who explained;
“The reports of Dr Antoun (R3-6 of the insurer’s original reply) and his conversations with reporting radiologist Dr Younis, who confirmed no acute features. I find that the mechanism of accident would be unlikely to cause a subscapularis tear, as a tear in the subscapularis requires an abduction and extension of force to the shoulder, which would not be caused by the mechanism of the accident. Therefore, I find it is more likely that these subscapularis changes are degenerative in aetiology.”
In this way, the insurer submits the Medical Assessor has had regard to the views of
Dr Herald amongst other available evidence regarding the left shoulder. Further, the insurer says that the Medical Assessor clearly exposed his path of reasoning for concluding the pathology shown in available scan material was likely due to a degenerative condition, rather than the trauma from the subject accident. The insurer says that the Medical Assessor did so, having regard to the mechanism of injury in the subject accident.
Right and left knees
The insurer addressed the claimant’s assertion that the Medical Assessor failed to have regard to the MRI of the left knee dated 28 February 2024 and an MRI of the right knee dated 28 February 2024. The insurer noted the comments of the Medical Assessor where he said;
“I am satisfied the mechanism of accident could cause an injury to the anterior aspect of both knees, due to direct impact. The post-accident imaging demonstrates underlying degenerative changes in the medial meniscus of each knee, where there is a degenerative tear seen. There is underlying lateral compartment chondropathy noted (underlying degenerative change).
I have reviewed the opinion of Dr Kirsh, dated June 2024, who noted the majority of the symptoms related pain following the motor vehicle accident, related to patellofemoral impact.
This is consistent with the mechanism of the accident.
I note that Dr Bodel, qualified by the Claimant, also opined that the claimant had suffered retropatellar damage to the front of both knees.
The imaging findings, in relation to the patellofemoral joints does not support a non-threshold injury.”
The insurer referred to the claimant’s assertion that he had pre-accident scans to the knees available that did not identify pre-existing pathology. The insurer says that this is incorrect. The insurer submits there were no pre-accident scans of the knees available (see page 11 of the certificate).
The insurer submits that it is clear from the reasons recorded in his certificate that the Medical Assessor has considered all relevant evidence, finding tears seen on imaging were likely degenerative, then concluded that the claimant’s injuries in the left shoulder and both knees were limited to soft tissue injuries only.
Submissions for original threshold injury assessment
The claimant was involved in prior motor vehicle accident on 18 December 2017 injuring his cervical spine (strain), lumbar spine (strain), upper extremity (tear, avulsion, contusion and strain). The claimant has reported he recovered from those injuries.
Cervical spine
The insurer disputes the claimant’s findings on the available scans of the cervical spine in 2023 and 2024 are accident related.
The insurer submits the pathology is due to underlying and pre-existing degenerative conditions of the cervical spine and is not traumatic in nature as supported by the report of Dr Antoun dated 7 February 2024.
The insurer says that there is no evidence to support a conclusion that the claimant suffered complete or partial disruption to the ligaments, tendons, menisci, cartilage or a fracture to the cervical spine in the subject accident.
The insurer referred to Dr Herald’s report which recorded a “whiplash injury to the cervical spine with soft tissue injury and radiculopathic symptoms to the shoulder blades”. However, the insurer noted the available clinical evidence did not confirm that the claimant had two or more clinical signs consistent with verifiable radiculopathy as required by cl 5.8 of the Motor Accident Guidelines.
In April 2024 the insurer says that Dr Perla reviewed the available MRI and confirmed there were no acute and traumatic features. He also found no evidence of radiculopathy on examination.
The insurer says that the claimant has not otherwise demonstrated that he suffers from two or more clinical signs found on examination to diagnose clinical radiculopathy.
The insurer says that the claimant’s expert, Dr Bodel confirmed a diagnosis of soft tissue injury after examination of the claimant.
The insurer submits the claimant’s alleged injury to the cervical spine suffered in the subject accident was a soft tissue injury.
Following on from this, the insurer submits the cervical spine injury suffered in the subject accident was a threshold injury.
Lumbar spine
The insurer disputes the claimant’s findings on the available scans with respect to his lumbar spine are accident related.
The insurer submits the pathology is due to underlying and pre-existing degenerative conditions of the lumbar spine and is not traumatic in nature.
The insurer notes Dr Herald’s report recorded a “soft tissue injury to the right lumbar spine and aggravation of underlying spondylosis with radiculopathic symptoms to both lower limbs”. However, the insurer says the available clinical evidence does not confirm that the claimant has two or more clinical signs consistent with verifiable radiculopathy as required by cl 5.8 of the Motor Accident Guidelines.
The insurer submits the claimant’s alleged injury to the lumbar spine suffered in the subject accident was a soft tissue injury.
Accordingly, the insurer submits any lumbar spine injury suffered in the subject accident was a threshold injury.
Shoulders
The insurer notes that the certificates of capacity refer to right shoulder pain, but do not make any reference to the left shoulder.
The insurer says that the bilateral ultrasound dated 30 August 2023 does not support a conclusion that the claimant suffered complete or partial disruption to the ligaments, tendons, menisci, cartilage or a fracture to either shoulder in the subject accident.
The insurer noted that the claimant’s expert, Dr Bodel confirmed a diagnosis of soft tissue injury to the right shoulder, suspected a tear of the right supraspinatus tendon, but could not confirm this.
The insurer says the nature of pathology in the left shoulder did not have acute or traumatic features and has not been correlated with the subject accident as concluded by Dr Antoun in his report dated 4 July 2024.
The insurer submits the claimant’s alleged injuries to the shoulders suffered in the subject accident were soft tissue injuries.
Following on from this, the insurer submits any injuries to the shoulders suffered in the subject accident by the claimant were threshold injuries.
Knees
The insurer submits nature of pathology in the knees is degenerative and not traumatic in nature. The pathology is similar on the right and the left demonstrating that these issues were longstanding. The insurer says that this position is supported by the views of Dr Antoun in his report dated 12 April 2024.
The insurer submits the claimant’s knee symptoms and pathology are due to degenerative, underlying and pre-existing conditions.
The insurer submits the claimant’s alleged injuries to the knees suffered in the subject accident were soft tissue injuries.
The insurer submits that claimant’s injuries to the knees in the subject accident were limited to threshold injuries.
Imaging
Pre-accident
A brief summary of pre-accident scans follows;
(a) MRI lumbar spine, dated 19 July 2018. Normal;
(b) MRI cervical spine, dated 19 July 2018. Normal study;
(c) Ultrasound right shoulder, dated 17 August 2018. Mild subacromial subdeltoid bursitis with impingement;
(d) Ultrasound left shoulder, dated 17 August 2018. Supraspinatus tendon normal;
(e) Subacromial bursa is mildly thickened. No rotator cuff tear of tendinosis;
(f) Ultrasound guided injection to left and right subacromial bursa, performed 26 September 2018;
(g) X-ray left shoulder, dated 30 January 2019. Normal;
(h) X-ray right shoulder, dated 30 January 2019. Normal, and
(i) MRI right shoulder, dated 26 July 2019. Capsular swelling at the AC joint. Tendinosis of the anterior rotator cuff interval with involvement of the insertion of the subscapularis and the anterior insertion of the supraspinatus tendons.
Post accident
A summary of post-accident scans follows;
(a) On 19 August 2023 the claimant underwent an MRI of the cervical spine which revealed “no acute trauma related event is noted. Mild degenerative changes are seen with disc dessication. No bulge or protrusion is seen.”
(b) On 30 August 2023 the claimant underwent an ultrasound of the shoulders which revealed “Mild bilateral subacromial bursitis with no signs of impingement. No evidence of a rotator cuff injury tear/injury”.
(c) MRI of the left shoulder dated 29 February 2024 shows some mild degenerative osteoarthritis of acromioclavicular joint (age-related), otherwise no abnormality.
(d) MRI scan of the right and left knee dated 28 February 2024 shows mucoid degeneration of the posterior horn of both medial menisci (there is no tear). There is no effusion.
(e) MRI scan of the lumbar spine dated 20 January 2024 shows no abnormality.
(f) MRI scans of the left shoulder, referred to in the report of Dr Antoun, dated
4 July 2024, as follows: MRI left shoulder 29 February 2024, the supraspinatus tendon is thickened and shows high signals suggestive of tendinopathy. There is no definite tendon tear detected. The infraspinatus appears normal. The subscapularis tendon is thickened and shows high signal. There is partial thickness tear of the inferior fibres of subscapularis tendons, seen measuring 6.8mm. There is a small intrasubstance tear of the biceps tendon, measuring 3.2mm.(g) On 8 May 2024 the claimant underwent a further MRI of the cervical spine which revealed “The cervical spine is within normal limits. No disc prolapse or neural compromise detected. There is no fracture or ligamentous injury.”
(h) On 28 February 2024 the claimant underwent an MRI of both knees which revealed tears of the medial meniscus on both sides and full thickness chrondral fissuring of the posterior third of the lateral femoral condyle with subcortical oedema.
(i) MRI lumbar spine dated 20 January 2024. Multilevel disc bulges between L2/3 and L4/5. No significant central canal or foraminal stenosis. No annulus tear is documented.
(j) Whole body Bone scan with SPECT CT imaging, dated 17 May 2024. There is uptake consistent with arthropathy of the right acromioclavicular joint and first costochondral junction.
On 25 June 2024 Dr Kirsch, treating orthopaedic surgeon stated “The left knee has some mild tenderness. An MRI scan demonstrates degenerative changes in both medial menisci and the right knee has some changes in the lateral femoral condyle. I feel Naivd’s problem is both knees is post traumatic patello-femoral maltracking and have recommended that he work on patella- femoral balancing with a physiotherapist.” He concluded the majority of the symptoms related pain following the motor vehicle accident, related to patellofemoral impact.
The insurer says that the Medical Assessor said that this was consistent with the mechanism of the accident. The underlying tearing in the medial meniscus of both knees reflects underlying degenerative change and is not consistent with the causations from the subject motor vehicle accident which involved rear and then front on impact, where patellofemoral impact is the likely cause of his symptoms.
On 26 June 2024 Dr Herald, commented on available imaging saying “the MRI scans show a medial meniscal tear bilaterally in both knees”. He said that the claimant had a partial thickness tears in his subscapularis of the left shoulder and biceps tendon. He also has an MRI scan of his lumbar spine showing lumbar spondylosis, but no imaging of his cervical spine.
Medical evidence
The Medical Assessor provided a certificate dated 28 October 2024.
Regarding the claimant’s accident in 2017, he recalled that his neck, back and bilateral shoulder pain had improved, and resolved, sometime in 2022. Consequently he had returned to work as a construction worker. The claimant informed the Medical Assessor that he recalled no physical symptoms in the period leading up to the subject motor vehicle accident.
The Medical Assessor noted that the claimant reported that he had no symptoms at the time of examination in his right shoulder.
The Medical Assessor concluded that regarding the claimant’s cervical spine and lumbar spine, the clinical presentation did not meet the criteria for radiculopathy.
As to the claimant’s left and right shoulders and left and right knees, the Medical Assessor said that there was no evidence of injuries to the nerves, complete or partial rupture of tendons, ligaments, many sky or cartilage.
The Medical Assessor concluded that the claimant had suffered threshold injuries.
Dr Bodel, in his report of 3 July 2024, concluded on clinical testing, that it was probably the case that the claimant has suffered threshold injuries in the neck and the back and possibly the right shoulder, although clinically he suspected that there was a partial thickness tear of the supraspinatus tendon on the right, but he said that had not been confirmed. Dr Bodel did say however, that there was articular cartilage damage in the retropatellar region of both knees and that in his view was a non-threshold injury.
Dr Herald provided two nearly identical reports of 24 and 26 June 2024 to the claimant’s GP. The claimant was referred to him for treatment.
Dr Herald in his report of 26 June 2024 noted that the claimant described pain at his neck, back and bilateral knees, and left shoulder pain. He said that MRI scans showed a medical meniscus tear bilaterally in both knees, and a partial thickness tear of the subscapularis of the left shoulder and biceps tendon. MRI scans of the lumbar spine showed lumbar spondylosis but there had been no imaging of the cervical spine.
Dr Herald assessed the claimant as having suffered a whiplash injury to the cervical spine with soft tissue injury and radiculopathic symptoms to both shoulder blades. The claimant had a left shoulder partial-thickness subscapular tear and partial-thickness biceps tear with subluxation. He was also diagnosed as having bilateral knee chondromalacia patellae and medial meniscal tear. Dr Herald diagnosed a soft tissue injury to the lumbar spine and aggravation of underlying lumbar spondylosis with radiculopathic symptoms to both lower limbs.
Dr Herald provided another report of 6 August 2024 to the claimant’s GP. He discussed the possibility of arthroscopic rotator cuff repair surgery. He also referred to MRI scans of the lumbar spine featuring spondylosis and MRI scans of the knees showing meniscal tears and of the left shoulder showing a partial thickness rotator cuff tear. Dr Herald did not refer to the accident nor did he attribute any cause for these symptoms.
Dr Kirsh provided a treating report of 25 June 2024. He reported that the claimant had generalised pain for about two weeks following the accident but both his knees, the right more so than the left, were sore. He also had some left shoulder pain. He diagnosed that the claimant had a problem in both knees consisting of post-traumatic patello-femoral maltracking.
Dr Kirsh said that problems in both knees were due to post-traumatic patellofemoral maltracking. He noted the MRI scan of 28 February 2024 which showed degenerative changes in both medial menisci, with the right knee having changes in the lateral femoral condyle.
Certificates of Capacity, commencing 11 December 2021, relate to the previous accident, and detail cervical lumbar and bilateral shoulder pain.
Certificates of Capacity, relating to the current accident, detail cervical, lumbar, spinal, musculoskeletal injuries and right shoulder pain with whiplash.
There are references within the documentation to a certificate and reasons of Medical Assessor Perla. No document about this was attached in either bundle of documents from the parties.
Within the insurer’s bundle of documents there are various clinical records from Restwell Medical Centre, Orthoclinic for Dr Herald, treatment notes of Dr Kirsh and clinical notes of Advance Health Medical Centre. The insurer has made no reference to any of these notes and records within its submissions.
Dr Rimmer provided a report for the insurer dated 21 January 2025. He noted that the claimant had a significant past history of being involved in a motor vehicle accident on
18 December 2017. The claimant described injuring the following anatomic sites:
(a) cervical spine;
(b) lumbar spine;
(c) left knee, and
(d) right and left shoulder.
Dr Rimmer referred to a clinical file provided to him and in which it was stated that the claimant received a financial settlement. However, the claimant apparently strongly denied this.
Dr Rimmer said that “Overwhelmingly, Mr Abdi demonstrates abnormal illness behaviour/malingering” however, he did not elaborate on this.
Dr Rimmer concluded that the claimant had suffered threshold injuries. He also assessed the claimant as having 0% whole person impairment.
Clinical notes of Restwell Medical Centre on 21 December 2017 show very restricted lumbar movements due to pain and two thirds range of movement of the cervical spine. The claimant was being regularly treated for neck and back pain throughout 2018. He also had limited bilateral shoulder movement as indicated in the notes and was not driving his car and required for shopping and cleaning as he could not do any weightlifting.
The claimant had ongoing neck/lower back and bilateral shoulder pain in 2019. There was reference to a gym program being declined by an insurer. There is an entry of 3 June 2019 and reported right shoulder pain which was worse in cold weather and pain at abduction at 90°. His sleep was disturbed at night. Notes stop at 7 July 2020 but at that time the claimant still had chronic neck/back and bilateral shoulder pain. He was also noted to have changed lawyers.
Medical examination
The claimant was examined by Medical Assessor Oates on 9 May 2025. His report follows:
Threshold disputes to be assessed
· Cervical spine – injury neck
· Knee – injury to knees
· Lumbar spine – injury to back
· Shoulder – injury to shoulders
REASONS
Details of who attended the Assessment
The claimant Navid Abdi arrived at the PIC Medical Suites for re-examination on behalf of the Panel by Medical Assessor Oates on 09/05/2025. The claimant arrived 15 minutes late, explaining his friend had driven him to the wrong address.
A Farsi interpreter (NAATI No. CPN2ZQ85O) was present for the duration of the assessment. The claimant wore an elastic knee guard on the left knee.
HISTORY
Pre-accident medical history and relevant personal details
The claimant said he came from Iran in 2013. He was a shopfitter and decorator in Iran. In Australia, he was employed as a painter doing domestic and commercial work.
Before the accident of 2017, he was walking and running, and had attended a gymnasium about 20 years ago.
He had a motor vehicle accident in 2017 where he injured his neck, both shoulders and lower back. He was off work for three or four years. He had injections to the shoulders. The main problem was the lower back.
He was previously assessed by PIC Medical Assessor Home and found to have 19% permanent impairment from injuries to cervical spine, lumbar spine, right shoulder and left shoulder arising from this motor accident.
His CTP claim was finalised around December 2021, after which he returned to work.
After this motor vehicle accident of 2017, he says he did not return to any sports or hobbies. Otherwise, he has had no operations and was on no regular medications.
After his claim was settled, he resumed work as a painter. He states he had no ongoing symptoms in the neck, back or shoulders at the time of the subject accident.
History of the motor accident
The claimant confirmed on 13/7/2023 he was driving an automatic 2018 Mercedes Benz station wagon. He had a seatbelt on and no passengers. He was stationary when he was hit from behind by another sedan.
His vehicle was pushed about 2 metres into the back of the vehicle in front of him in the line of traffic. The airbags did not deploy. He says he was rocked around by the impacts but doesn’t recall hitting any part of his body inside the cab.
He remembered vomiting after the accident. He was not bleeding. He didn’t lose consciousness. The road was blocked with traffic but he could hear sirens and see police, fire brigade and ambulance coming up from behind.
He does not recall there being any damage to the driver’s seat. He got out of his vehicle with some assistance. He said the police did not reach the site. His partner came to the accident scene and drove him home in her car. His car was towed and repaired, but he doesn’t know the cost.
He thought everything would settle down. He had mid-line lower back pain after the accident and right-sided neck and trapezial pain, bruising to the right wrist, anterior knee pain on both sides of the patella, left greater than right, and headaches.
He is uncertain how he hurt his knees in the accident, as he doesn’t recall impacting them. He can’t recall any other pain areas.
History of symptoms and treatment following the motor accident
When he was not improving after three or four days, he contacted the GP and was able to get an appointment on 22/7/2023.
I asked him about the APB form, which did not mention the back; only neck, shoulders, knees and head were mentioned. I showed him the form and he said it was not his writing. He had signed it though, dated 24/7/2023.
He attended Dr El Azzi, GP Bankstown, complaining of neck, back and shoulders, more on the left, and radiating to the elbow. He does not recall any pain in the right shoulder, he then added except at the beginning after the accident.
A medical certificate of 22/7/2023 referred to neck, back and right shoulder. He could not explain this.
He then attended a physiotherapist for treatment of neck, back and shoulders.
He had an MRI scan of the cervical spine, ultrasound of the shoulders and MRI scan lumbar spine, and then MRI of both knees. He was treated with Tramadol.
He had a repeat MRI scan of cervical spine.
He had about 16 sessions of physiotherapy, after which there was benefit for the left shoulder and back, but the right shoulder got worse. He says the knees eventually improved.
He was referred to Dr Herald, orthopaedic surgeon, and also Dr Kirsh, orthopaedic surgeon. He saw Dr Kirsh on 25/6/2024 and was diagnosed with post-traumatic patellofemoral maltracking with degenerative changes on MRI scan in both medial menisci, and the right knee showed some changes in the lateral femoral condyle. The specialist advised patellofemoral balancing exercise with a physiotherapist.
He saw Dr Herald on 26/6/2024 and he recommended cortisone injections for a partial-thickness subscapularis tear and noted there was also a partial-thickness biceps tear with subluxation, and he was diagnosed with bilateral knee chondromalacia patellae and medial meniscal tears, with soft tissue injury to lumbar spine and aggravation of underlying lumbar spondylosis with radiculopathic symptoms to both lower limbs, along with whiplash injury to the cervical spine consisting of soft tissue injury and radiculopathic symptoms to both shoulder blades. His dose of anti-inflammatory medication was increased. Administration of an injection was not approved by the insurer.
He saw Dr Ghahreman, neurosurgeon, for assessment of neck and back injuries, and he was advised to have Mobic for three months for three bulging discs in the lower back, and was recommended exercises and to have a bone scan to check the cervical spine, but neither the exercise program nor the bone scan were approved.
The claimant said that no-one assessed his left elbow.
Details of any relevant injuries or conditions sustained since the motor accident
Nil relevant.
Current symptoms
He has pain at the AC joint of the left shoulder and lateral left upper arm and anterior left elbow at the biceps insertion.
There was pain in both kneecaps and also has developed some pain at the back of both knees, and he feels a locking sensation behind the knees with stiffness when he first tries to stand up after a period of sitting.
His low back is affected by central pain, sometimes radiating to the left buttock and posterior left leg as far as the knee. This pain in the leg will stop when he takes Lyrica. He sometimes gets pins and needles in both feet when he wakes up. It settles after moving around for half an hour.
His neck is all right. He feels a heat sensation in the right side of the neck when he goes to use his right arm.
He is not working and is on insurance benefits.
He lives in a house which he shares with four others. His partner left him after the accident. He started weeping at this point. There are no children.
A friend of his comes over to do house chores which would normally fall to him and he also does some shopping. He doesn’t do any yard work.
Current and proposed treatment
He takes Lyrica 75mg 1 - 4 tablets per day as required, Voltaren one daily, Panadol 50mg twice daily, Avanza one at night. He is having no other form of treatment.
His current GP is Dr Adrian Wan, West Ryde.
He has no outstanding specialist appointments.
CLINICAL EXAMINATION
General presentation
The claimant was quite flustered when he arrived late and I tried to settle him as best I could by giving him a drink of water, which was appreciated. He then relaxed sufficiently to provide the history from a comfortable seated position.
As soon as he was asked to stand up to commence the formal examination, his head, neck, back and shoulders all stiffened up. When he was asked to show the best range of active movement he could manage, he said he was in too much pain to move and demonstrated very little active movement.
He was of strong muscular build with height 184cm and weight 112.7kg.
I asked him had he done weightlifting in the past and he denied this.
Cervical spine (cervicothoracic)
Flexion extension one-quarter of normal. Lateral flexion one-quarter of normal bilaterally. Rotation one-quarter of normal bilaterally. There was no guarding. There was voluntary stiffening of cervicothoracic musculature.
Power in the right upper extremity was normal and in the left there was no voluntary effort made because of pain inhibition. Sensation was normal in both upper extremities. Reflexes were all of low amplitude but symmetrical.
Upper arm girth; right 36cm, left 37.5cm at 10cm above the elbow.
Forearm girth; right 34cm, left 33cm at 5cm below the elbow.
The forearm girth difference would be consistent with stated right-hand dominance.
Upper extremity
Shoulder Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
90°
30°
Extension
20°
10°
Adduction
20°
0°
Abduction
90°
30°
Internal Rotation
40°
20°
External Rotation
40°
0°
Active range of movement was measured with a goniometer.
Internal and external rotation in the left upper extremity had to be measured with the elbow at the side of the trunk, because he said he could not abduct to anywhere near 90° to do these measurements in the usual position because of severe left shoulder and left elbow pain.
On the right side, all right shoulder movements were said to be limited by upper trapezial pain.
Lumbar spine (lumbosacral)
There was no guarding. Flexion and extension were both one-half normal range. Lateral flexion one-quarter of normal range bilaterally and rotation was one-quarter normal range bilaterally.
Reflexes were +1 and symmetrical with plantar responses both flexor. Power and sensation in the lower limbs were normal.
Supine straight leg raising was 0° bilaterally with the claimant refusing to attend to lift either leg at all off the couch because of complaints of severe back pain when lying supine. Sitting straight leg raising was 70° bilaterally with negative stretch/slump test.
Thigh girth; right equals left equals 54cm at 10cm above the patella.
Leg girth; right 46cm, left 45cm measured at maximal circumference.
Lower extremity
Knee Movements
Active ROM Measured
RIGHT
Active ROM Measured
LEFT
Flexion
0° when supine
0° when supine limited by low back pain
Extension
0° when supine
0° when supine
Because of the claimant’s professed inability to flex his knees at all whilst lying supine because of the severity of low back pain, knee movements were repeated in a sitting position on a chair and in this position there was 5° flexion contracture in both knees and flexion to 90° was possible bilaterally. There was mild patellar tenderness bilaterally.
At the end of the examination, I asked the claimant whether he had anything to add and he replied in the negative.
Consistency of presentation
There was marked inconsistency between the range of movement observed during informal observation during the history taking in the knees, back and neck, in sharp contrast to that demonstrated during formal examination tests of active movement.
The claimant replied, when asked about this discrepancy, stating that he was in too much pain when he stood for formal examination, primarily from the lumbar spine, hence he could not produce any significant active movement.
IMAGING
The following imaging was brought to the Panel re-examination:
· 20/1/2024 – MRI lumbar spine
· 28/2/2024 – MRI bilateral knees
· 29/2/2024 – MRI left shoulder
Diagnosis, causation and reasons
Cervical spine
The accident was a cause of this injury, as it is mentioned in the APB dated 24/7/2023 and the GP record dated 22/7/2023, where neck and right hand numbness was referred to, and also in the physiotherapy record of 15/8/2023.
At the time of the examination there was no dysmetria on testing range of movement, no guarding on palpation and no signs of radiculopathy or non-verifiable radicular complaints that conformed to a dermatomal pattern in the upper limbs.
The diagnosis is soft tissue injury.
Right and left knees
Although there is no clear mechanism of injury in terms of impact to the front of the knees recalled by the claimant, nevertheless right and left knees are mentioned on the APB and in the GP record of 2/8/2023, where both knees are referred to, the left being more of a problem than the right.
It may be that there was some unremembered impact to the knees which resulted in bilateral knee pain.
The diagnosis is soft tissue injury with patellofemoral joint irritation to right and left knees. This type of injury could be caused by a frontal impact to the bent knee striking the patella.
A medial meniscal tear with moderate degenerative signal on MRI scan of 28/2/2024 in the left knee would not be caused by the mechanism of injury in this accident, namely front impact to the knee. A meniscal tear requires a twisting episode on a partially flexed knee in the standing position, which is not the posture that the knee was in in the subject accident.
Meniscal tears occur most often as a sporting injury when there are sudden changes in direction of movement producing twisting on a partially flexed knee whilst weight-bearing, or in non-sporting situations where the foot may slip on a slippery surface and resulting in twisting injury to the knee, whilst weight-bearing.
The medial meniscal tear in the right knee and full-thickness chondral defect of lateral femoral condyle are similarly not related to the motor vehicle accident because the mechanism of injury required to produce these injuries was not present in the accident.
Lumbar spine
The diagnosis is soft tissue injury.
The accident was a cause of this injury, as it is referred to in the early GP records and the physiotherapy record of 15/8/2023, which mentions low back pain radiating to both legs and feet.
Regarding radiculopathy, none of the following clinical signs were found on examination ...
(a) loss or asymmetry of reflexes
(b) positive sciatic nerve root tension signs
(c) muscle atrophy and/or decreased limb circumference
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e)reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution
Right and left shoulders
It is likely that there was injury to the shoulder joints by force transmitted up through the arms from the hands being on the steering wheel at the time of the double impact, and bilateral shoulders are mentioned in the APB, in the GP record of 2/8/2023 which refers to both shoulders, and the physiotherapy record of 15/8/2023 refers to the right shoulder.
The accident is considered a cause of bilateral shoulder condition.
Ultrasound of bilateral shoulders on 30/8/2023 after the accident showed mild bilateral subacromial bursitis with no impingement and no evidence of rotator cuff injury or tear.
MRI of left shoulder on 29/2/2024 refers to partial-thickness tear of subscapularis tendon and small intrasubstance tear of biceps tendon. The reason for referral for this scan was” painful external rotation ? rotator cuff pathology”.
The Medical Assessors used their clinical experience and knowledge to decide that subscapularis tear is caused by a fall on the outstretched hand or sudden wrenching traction force producing forced abduction of the arm, but in the absence of acute trauma, most commonly from chronic overuse and degenerative processes. Such a subscapularis tear is often seen with long head of biceps tear, which is caused either by repetitive use of the arm and age-related degeneration, or else acute trauma from a fall on the outstretched arm or from sudden heavy lifting, which is not the case here.
If a tendon tear occurs acutely as a result of trauma, the Medical Assessors would expect that it would cause immediate onset of severe pain, swelling in the shoulder, immediate weakness producing difficulty in lifting or twisting the arm, a grating sensation when moving the arm at the shoulder, a snap or tear sensation at the time of injury, marked shoulder discomfort disturbing sleep when lying on the affected side in bed, and in the case of a biceps tendon tear, often extensive bruising from the shoulder with tracking down the arm towards the elbow and this is not documented in this claimant’s case.
THRESHOLD DISPUTE
Cervical spine
This is a soft tissue injury.
It is a threshold injury because there is no evidence of cervical radiculopathy clinically on the MRP re-examination, nor documented in the file of evidence, and no evidence of a partial or complete tear of tendon, ligament or disc fibrocartilage.
Right and left knees
These are threshold injuries.
I have explained above that the tears of menisci and cartilage seen on MRI scans are pre-existing changes rather than acute traumatic changes caused by the motor vehicle accident.
Lumbar spine
This is a soft tissue injury and is a threshold injury.
There is no evidence of lumbar radiculopathy on today’s clinical examination, nor documented in the file of evidence. MRI scan did not show any partial or complete tear of ligament, tendon or disc fibrocartilage.
Right and left shoulders
These are soft tissue injuries and are threshold injuries.
As explained above, the tears of subscapularis and long head of biceps seen on MRI scan are non-traumatic in etiology and pre-existing and not related to the motor vehicle accident because the mechanism of injury was absent.
The ultrasound scans of both shoulders done initially after the accident showed no tears.
The difference is explained by the greater sensitivity of MRI scans as against ultrasound scans in picking up small or subtle tears, which are most likely the result of repetitive microtrauma, for example in people who play sport or have manual occupations, or else degenerative conditions due to the ageing process.
The Panel adopts the findings of Medical Assessor Oates.
Causation
The Panel must, amongst other things, consider whether, with the claimant’s shoulder and knee complaints, the disability is causally related when there was little or no complaint about these areas of disability for nine days post-accident. The Panel considers that the claimant may have suffered a minor disability as a result of the accident to his shoulders and knees. However, the Panel does not consider that the accident has had a more than negligible effect on his shoulders and knees due to the mechanism of the collision and injury.
The Panel is mindful that a lack of reported complaint of shoulder pain not preclude a conclusion that this condition arose from the accident.
Scientifically, there is a possibility that the accident could have caused a shoulder injury. The Panel must consider, did the accident contribute to the claimant suffering shoulder and knee tears when no immediate complaint of extreme pain was made by him?
While the lack of contemporaneous complaint or record is not determinative, the reality is that there is essentially no evidence of immediate complaint of extreme pain following the accident, before the Panel, and which would be expected.
The Panel must also ask itself in considering whether the accident contributed to the claimant’s physical injuries as referred to it by the Commission, whether the claimant’s condition arises because of contribution by the accident, and whether the accident materially contributed to that condition and need for treatment.
On the balance of probabilities, can it be said that the claimant suffered shoulder and knee injuries causing tears? For the reasons discussed above in the report of Medical Assessor Oates, the Panel does not find that this can be answered in the affirmative.
Would the impairment have occurred, if not for the accident? The Panel is not satisfied that the accident and impact has had a more than negligible effect on the shoulder and knee conditions suffered by the claimant.
As considered by Medical Assessor Oates, a medial meniscal tear with moderate degenerative signal on the MRI scan of 28 February 2024 in the left knee would not be caused by the mechanism of injury in this accident, namely front impact to the knee. A meniscal tear requires a twisting episode on a partially flexed knee in the standing position. This is not the posture of the knee in the subject accident. Generally, meniscal tears occur most often as a sporting injury when there are sudden changes in direction of movement producing twisting on a partially flexed knee whilst weight-bearing, or in non-sporting situations where the foot may slip on a slippery surface and resulting in twisting injury to the knee, whilst weight-bearing. The medial meniscal tear in the right knee and full-thickness chondral defect of lateral femoral condyle are similarly not related to the accident because the mechanism of injury required to produce these injuries was not present in the accident. There was no twisting action but rather a sudden acceleration and deceleration with firstly, the rear end impact and then the knock-on frontal impact.
Concerning the claimant’s complaints of injuries to both shoulders, as Medical Assessor Oates concluded, the mechanism of the accident would not give rise to the injuries claimed by the claimant.
This is because a subscapularis tear is caused in most circumstances by a fall on the outstretched hand or sudden abduction of the arm, or else from chronic overuse and degenerative processes. The subscapularis tear demonstrated by the claimant is often seen with long head of biceps tear, which is caused either by repetitive use of the arm and age-related degeneration, or else acute trauma from a fall on the outstretched arm or from sudden heavy lifting.
If a tendon tear occurs acutely as a result of trauma, the Medical Assessors would expect that it would cause immediate onset of severe pain, swelling in the shoulder and often extensive bruising from the shoulder with tracking down the arm towards the elbow in the case of the biceps tendon tear. However, this is not documented in this claimant’s case.
CONCLUSION
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.
The following injuries were caused by the motor accident:
(a) cervical spine - soft tissue injury, underlying degenerative change;
(b) lumbar spine - soft tissue injury, underlying degenerative change;
(c) left knee -patellofemoral contusion, soft tissue injury, underlying degenerative change;
(d) right knee patellofemoral contusion - soft tissue injury, underlying degenerative change;
(e) left shoulder -soft tissue injury, and
(f) right shoulder - soft tissue injury.
The Panel is not satisfied that the accident and impact has had a more than negligible effect on the right shoulder condition nor the knee injuries suffered by the claimant. Ongoing complaints for those conditions have not been caused by the accident, for the reasons discussed.
The Panel finds that the claimant has suffered threshold injuries.
DETERMINATION
The Panel affirms the certificate of Medical Assessor Home dated 28 October 2024.
The Panel find that the following injuries were caused by the motor accident:
(a) cervical spine - soft tissue injury, underlying degenerative change;
(b) lumbar spine - soft tissue injury, underlying degenerative change;
(c) right knee - patellofemoral contusion - soft tissue injury, underlying degenerative change;
(d) left shoulder -soft tissue injury, and
(e) right shoulder-soft tissue injury.
The Panel finds that the claimant has suffered threshold injuries.
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