QBE Insurance (Australia) Limited v Dincer

DETERMINATION OF REVIEW PANEL
CITATION:	QBE Insurance (Australia) Limited v Dincer [2023] NSWPICMP 286
CLAIMANT:	Vahdettin Dincer
INSURER:	QBE Insurance (Australia) Limited
REVIEW Panel
MEMBER:	Susan McTegg
MEDICAL ASSESSOR:	Wing Chan
MEDICAL ASSESSOR:	Michael Couch
DATE OF DECISION:	21 June 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; threshold injury; lumbar spine; cervical spine; thoracic spine; left shoulder; causation; the claimant suffered injury in a motor vehicle accident on 9 April 2019; review of certificate of Medical Assessor (MA) Bodel; dispute as to causation of left shoulder injury; whether progression of full thickness tear of the superficial fibres of the subscapularis seen on MRI in 2015 to a complete tear of the tendon seen on ultrasound four months post-accident attributed to the accident or part of the progression of degenerative rotator cuff pathology; Held – where no complaints regarding left shoulder between 17 March 2015 and the accident, consistent history of complaint recorded in the Ambulance report, at the hospital and thereafter; where the claimant could not recall any significant symptoms prior to the accident that the accident was a contributing cause which was more than negligible; complete subscapularis tear is a complete rupture of a tendon and is not a threshold injury; accident caused aggravation of pre-existing cervical spondylosis which is a threshold injury; accident caused aggravation of a pre-existing lumbar spondylosis which is a threshold injury; injury to the thoracic spine not caused by the accident.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Assessment of Threshold Injury Certificate issued under section 7.23(1) of the Motor Accident Injuries Act, 2017 The Review Panel revokes the certificate of Medical Assessor James Bodel dated 24 May 2022 and determines that the following injuries caused by the motor accident are threshold injuries: · cervical spine – aggravation of pre-existing cervical spondylosis, and · lumbar spine – aggravation of pre-existing lumbar spondylosis. The Panel determines the following injury caused by the accident is not a threshold injury: · left shoulder – complete tear of the subscapularis tendon. The Panel determines the following injury was not caused by the accident: · injury to the thoracic spine.

STATEMENT OF REASONS

INTRODUCTION

Mr Vahdettin Dincer (the claimant) sustained injury in a motor vehicle accident on 9 April 2019 (the accident).
QBE Insurance Australia Limited trading as NRMA Insurance (the insurer) is the relevant insurer with liability to pay any damages to Mr Dincer under the Motor Accident Injuries Act 2017 (MAI Act).
Under the MAI Act as it applied to this claim statutory benefits for treatment and care cease after 26 weeks if “the person’s only injuries resulting from the motor accident were minor (threshold) injuries”.[1]
[1] Section 3.28 of the MAI Act.
On 24 June 2019 Mr Dincer lodged an Application for personal injury benefits.[2] He described his injuries as “neck, left shoulder, lower back and trauma”.
[2] AD1 p 119
On 16 October 2019 the insurer issued a Liability Notice – benefits after 26 weeks informing the claimant that his injuries were minor (threshold) injuries and that his entitlement to statutory benefits including treatment and care would cease from 16 October 2019.
On 15 July 2021 Mr Dincer sought an Internal Review of the minor (threshold) injury decision.
On 5 August 2021 the insurer issued their Internal Review - Certificate of Determination and Statement of Reasons affirming their earlier minor (threshold) injury decision.
On 1 September 2021 the claimant filed an application with the Personal Injury Commission (the Commission) seeking a medical assessment to resolve the minor (threshold) injury dispute between the parties.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter, including “whether the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor[3].
[3] Section 7.20 of the MAI Act.

THRESHOLD INJURY- STATUTORY PROVISIONS

The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on
1 April 2023. From 1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.
The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
Any reference in these reasons to “minor injury” is a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “psychological or psychiatric injury that is not a recognised psychiatric illness”. Section 1.6(2) of the MAI Act defines a “soft tissue injury” as:
“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.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a threshold injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the MAI Act. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3   The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4    Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5    A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6     The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
In respect of injury to the neck or spine cls 5.7, 5.8 and 5.9 of the Guidelines provide:
“5.7   In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.
5.8    Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a) loss or asymmetry of reflexes
(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.
5.9    Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury.”
In Briggs v IAG Limited trading as NRMA Insurance[4] his Honour Justice Wright stated at [35]:
[4] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of injury
6.5An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
6.6Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”

ASSESSMENT UNDER REVIEW

The dispute was referred to Medical Assessor James Bodel who assessed Mr Dincer on 20 May 2022 and issued a certificate dated 24 May 2022.[5] The injuries referred for assessment were described as follows:
·        cervical spine – left C56/7 foraminal stenosis with possibility of compression of the left C7 nerve root; localised advanced left C2/3 facet arthropathy;
·        thoracic spine – injury to the thoracic spine;
·        lumbar spine – multi-level disc bulging, and
·        left shoulder – chronic appearing tears of subscapularis and long head of biceps; tendinosis and bursitis.
[5] AD1 p 12.
Medical Assessor Bodel noted the medical records confirm Mr Dincer had intermittent symptoms involving the left shoulders since March 2015, the cervical spine since November 2017 and he underwent thoracic and lumbar spine investigations in January 2018. He also reported he was treated conservatively, and he seemed to settle without long term treatment. At the time of the accident Assessor Bodel concluded Mr Dincer was relatively asymptomatic.
Medical Assessor Bodel concluded Mr Dincer had suffered a soft tissue whiplash-associated disorder in the cervical spine and probably additional disruption of the cartilaginous endplate in the C6/7 disc as a result of the accident. Further he found he suffered material aggravation of the pre-existing damage to the supraspinatus tendon and the long head of the biceps caused by the accident.
Medical Assessor Bodel found injuries to the thoracic spine and the lumbar spine were minor (threshold) injuries for the purpose of the MAI Act. He found the following injuries were caused by the accident and were not minor (threshold) injuries for the purposes of the MAI Act:
· cervical spine – left C6/7 foraminal stenosis with possibility of compression of the left C7 nerve root; localised advanced left C2/3 facet arthropathy, and
· left shoulder – chronic appearing tears of subscapularis and long head of biceps; tendinosis and bursitis.

REVIEW PROCEDURE

The insurer lodged an application for review of the medical assessment of Medical Assessor Bodel on 21 June 2022 within 28 days of the date on which the certificate of Medical Assessor Bodel was made available to the parties.
On 1 September 2022 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel).[6]
[6] AD2 p 9.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission.[7] Accordingly, the President’s delegate referred the matter to this Panel to assess.
[7] Section 7.26(5A) of the MAI Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[8]
[8] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[9]
[9] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.
The solicitor for the insurer uploaded to the portal an indexed bundle of documents paginated from pages 1 to 179 marked as AD1. The claimant uploaded to the portal an indexed bundle of documents paginated from pages 1 to 187 marked AD2.

Report of Dr Porteous, occupational physician

The claimant also sought to rely upon a report of Dr Porteous dated 25 January 2023 uploaded to the portal and marked AD7.
In submissions dated 10 March 2023 (AD6) the insurer objected to the admission of that report on the basis the report was not before Medical Assessor Bodel and the application for review was based on whether the assessment of Medical Assessor Bodel was incorrect in a material respect. The Panel notes whilst that is the test to be considered by the delegate of the President, once the dispute has been referred to a review panel the review is by way of a new assessment of all matters with which the medical assessment is concerned.
The further submission relied upon by the insurer is that if the report of Dr Porteous is admitted into evidence the insurer is prejudiced. If the report of Dr Porteous is admitted the insurer submits that the interests of justice require that the insurer be given an opportunity to introduce into evidence their own expert opinion contained in the report of Dr Bosanquet, orthopaedic surgeon of 28 October 2022
Whilst the Panel notes the review is by way of a new assessment of all matters with which the medical assessment is concerned clause 5.6 of the Guidelines requires the assessment to be undertaken based on the evidence available including a comprehensive accurate history, a review of relevant available records, a comprehensive description of the current symptoms, a thorough physical examination and diagnostic tests available.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[10] and Insurance Australia Ltd v Marsh.[11]
[10] [2021] NSWCA 287 at [40], [41] and [45].
[11] [2022] NSWCA 31 at [11], [21] and [64].
The Panel does not consider the competing opinion of two medical practitioners would be of assistance in determining the threshold injury dispute and considers the available evidence is sufficient to enable the assessment to be undertaken in accordance with clause 5.6 of the Guidelines.
Accordingly, the Panel does not propose to consider the report of Dr Porteous in determining this dispute.

Re-examination

In a report dated 17 October 2022 the Panel informed the parties it did not consider a re-examination was required to determine the issues in dispute. The claimant objected to the matter being determined without re-examination. Accordingly, the Panel agreed an examination was required.

EVIDENCE BEFORE THE REVIEW PANEL

Application for personal injury benefits

In the Application for Personal Injury Benefits dated 24 June 2019 Mr Dincer listed his injuries as “neck, left shoulder, lower back and trauma”.

Pre-accident treating records
Blacktown Family Medical Centre clinical notes

The clinical records are summarised as follows:[12]
[12] AD1 p 64.
(a)     9 March 2015 – left shoulder rotator cuff tear? Panadeine forte prescribed.
(b)     17 March 2015 – left shoulder injury. Rotator cuff injuries noted on MRI.
(c)     30 March 2015 – lumbar cervical disc disease.
(d)     5 May 2015 – back, neck pain.
(e)     13 October 2015 – lower back pain chronic. ROM restricted. Spinal tenderness.
(f)     21 March 2017 – lower back pain /chronic. No neurological symptoms. OE spinal tenderness. ROM restricted.
(g)     5 December 2017 – lower back and neck pain.
(h)     21 December 2017 – neuropathic pain. Back pain radiating down to left calf – likely related to radiculopathy. Intermittent pain impacting on gait and exercise tolerance. Cervical radiculopathy evidenced by recent MRI cervical spine (C6, 7 disc osteophyte impinging C7 nerve root), decreased strength left UL 2 pain.
(g)     16 January 2018 – MRI thoraco-lumbar spine (6/1/2018) revealed facet joint arthrosis T6/7 on the left without neural impingement or canal stenosis. Lumbar spine degenerative disc disease without definite neural impingement or canal stenosis. L2-L5 nerve exiting abut disc/endplate osteophyte complex without neural impingement.
(h)     13 February 2018 – musculoskeletal neck pain no paraesthesia or weakness, no injury, no radicular pain, relieved by rest, worsened with motion…[sic].
(i)     6 December 2018 – lower back and neck pain.
The claimant underwent an ultrasound of the left shoulder on 9 March 2015.[13] The conclusion was:
(a) subscapularis and biceps tear, and
(b) supraspinatus tendinosis subacromial bursitis with capsulitis.
[13] AD1 p 49.

The findings were recorded as follows:
“The subscapularis is attenuated and there appears to be a full thickness tear to the superficial fibres. The biceps tendon is ruptured. There is supraspinatus tendinosis. The remaining tendons are within normal limits. The bursa is thickened and with abduction there is bunching and pain at about 45º. There are features of capsulitis also.”
An MRI of the cervical spine of 29 November 2017 concluded “left C6/7 disc osteophyte impinging exiting left C7 nerve root”.[14]
[14] AD1 p 50.
The claimant underwent an MRI of the thoracic and lumbar spine on 6 January 2018.[15] The report concluded:
“Thoracic spine degenerative changes without neural impingement nor canal stenosis. Facet joint arthrosis most marked T6/7 on the left side. Minimal costovertebral degenerative wear. Lumbar spine degenerative disc disease, without definite neural impingement or canal stenosis. The exiting L2 through to L5 nerves do abut the discs/endplate osteophyte complex in the foramina and far lateral position, without evidence of neural impingement…”.

Post-accident treating records
[15] AD1 p 52.

The ambulance report noted Mr Dincer denied cervical spine pain but complained of pain to the left clavicle and shoulder.[16] The report also states, “Pt c/o intermittent numbness to L arm with hx of same over past few weeks”.
[16] AD1 p 114.
In an Emergency Department Discharge referral of Royal Prince Alfred Hospital dated 9 April 2019 it was noted the claimant was seen for review by the trauma team.[17] The history was of driving 60 kmph in M4 tunnel when he was clipped by truck on driver side then hit the wall of the tunnel and struck again by truck on driver side. It was noted airbags did not deploy and the claimant self-extricated and was walking on the scene. The claimant reported cervical spine tenderness. His right upper limbs showed no abnormality. His left shoulder was noted to be tender over the lateral clavicle with limited range of movement due to pain. X-rays of the chest, left shoulder, pelvis and left hip and a CT scan of the spine did not demonstrate any fractures.
[17] AD1 p 54.
The Blacktown Family Medical Centre clinical notes record:[18]
(a)     16 April 2019 – involved in MVA on Tuesday neck, L shoulder, L hip and lower back injuries. Whiplash soft tissue injuries.
(b)     18 April 2019 – neck, L shoulder, lower back, left hip x rays soft tissue injuries.
(c)     30 April 2019 – had MVA 9/4/19… CT of cervical spine clear. Ongoing pain neck and lower back – jerking. Known history of osteoarthritis.
(d)     14 May 2019 – lower back neck L shoulder L hip pain mva 09/04/2019.
(e)     9 July 2019 – lower back, neck, L shoulder pain.
(f)     18 July 2019 – L shoulder pain worsening.
(g)     thereafter the claimant has continued to attend Blacktown Family Medical Centre on a regular basis with complaints of neck and low back pain.[19]
[18] AD1 p 78.
[19] AD1 p 131.
An X-ray of the cervical spine on 9 July 2019 and a CT of the cervical spine on the same day reported the presence of multilevel degenerative disc changes, particularly at C6/7 and multilevel foraminal stenosis.[20] The vertebral body heights were maintained.
[20] AD1 pp 145 and 165.
An X-ray of the lumbosacral spine on 9 July 2019 and a CT of the lumbosacral spine on the same day reported the presence of degenerative changes, foraminal stenoses which appeared most marked at L3/4 and L4/5 accentuated by small retrolisthes.[21]
[21] AD1 pp 146 and 166.
Mr Dincer was reviewed by Dr Raymond Wallace orthopaedic surgeon on 12 August 2019.[22] He reported complaints of intermittent frontal headaches and intermittent aching pain at the C2 to C7 spinous processes radiating to the anterior aspect of the left shoulder and the anterior aspect of the left pectoralis major muscle. He noted neurological examination of his upper limbs showed equal and symmetrical reflex, power and light touch sensation was intact. He diagnosed Whiplash associated disorder grade II.
[22] AD1 p 107.
An ultrasound of the left shoulder on 22 August 2019 found chronic appearing complete tears of subscapularis and long head of biceps and tendinosis and bursitis.[23] The findings were recorded as follows:
“There is a chronic appearing complete tear of subscapularis and long head of biceps.
The supraspinatus is diffusely thickened and heterogeneous with features to suggest tendinosis. No discrete tear is seen.
The acromioclavicular joint demonstrates marginal osteophytes and synovial thickening without significant tenderness on probe pressure.
There is thickening of the subacromial bursa with bunching and pain on dynamic scanning.”
[23] AD1 p 147.
An X-ray of the cervical spine of 22 August 2019 reported:[24]
“Findings: Intervertebral disc narrowing with anterior osteophytosis seen most pronounced at C6/7. There is no cervical rib. Posterolateral osteophytosis is seen on the left most pronounced at C6/7”.
[24] AD1 p 149.
An X-ray of the lumbar spine of 22 August 2019 reported degenerative changes.[25]
[25] AD1 p 149.
On 24 August 2019 Jeffrey Brown of Blacktown Physioclinic completed an Allied health recovery request (AHRR).[26] He reported:
“Patient reports ongoing cervical pain, shoulder and lumbar spine pain. Neck pain refers into the shoulder with complaints of ongoing pins and needles, and numbness in the right shoulder and arm. He also reports constant headaches … Lumbar spine refers into the L lower limbs with reports of intermittent pins, needles and sharp, burning sensations on the left LL. Shoulder pain is constant and aggravated with any shoulder movements”.
[26] AD1 p 103.
On 23 September 2019, Dr Wallace reported Mr Dincer noted intermittent pain at his cervical spine and the left lateral aspect of his neck radiating globally to his left shoulder and globally about the left upper limb to the hand.[27] He reported paraesthesia globally, weakness of the left arm and stiffness of the cervical spine. His cervical spine had no swelling or deformity, and neurological examination showed equal and symmetrical reflex. His power and light touch were intact.
[27] AD1 p 57.
On 4 November 2019 Dr Wallace reported no improvement in cervical spine symptoms since 23 September 2019.[28] His opinion as to diagnosis remained unchanged.
[28] AD3.
The claimant underwent an MRI of the cervical and lumbar spine on 10 July 2020.[29] This revealed high grade left foraminal stenosis at C6/7 secondary to disc osteophyte change and multilevel disc bulging of the lumbar spine.
[29] AD2 p 163.
Dr Needham, consultant in rehabilitation and pain medicine, reported to Dr Capa on 19 August 2020 that the claimant had moderate lower back pain and neck pain in the left sided suboccipital area.[30] He reported the cervical imaging which showed left C6/7 foraminal stenosis with the possibility of compression of the left C7 nerve root, did not correspond with the claimant’s symptoms. However, the cervical imaging also showed localised advanced left C2/3 facet arthropathy which did highly correlate with the claimant’s suboccipital pain symptoms.
[30] AD1 p 61.
On 26 April 2021 Dr Dowla, neurologist noted the claimant complained of neck pain post-accident with radiation to the shoulders and an occipital headache.[31] Nerve conduction studies showed the bilateral median nerve slowing at the wrist, which was compatible with carpal tunnel syndrome.

SUBMISSIONS

[31] AD1 p 62.

Insurer’s submissions

The insurer provided submissions dated 15 September 2021 in support of the minor injury dispute.
The insurer notes the claimant had pre-accident facet joint arthrosis in the thoracic spine. The insurer submits there is no evidence of injury to the thoracic spine sustained in the accident.
Mr Dincer had pre-existing degenerative disc disease of the lumbar spine and reported chronic lower back pain from at least 2015 including radicular symptoms as noted in the clinical note dated 21 December 2017. The insurer submits the post-accident radiological evidence demonstrates progression of the pre-existing changes only with no evidence of any acute or traumatic injury to the lumbar spine.
In relation to the left shoulder the insurer notes radiological evidence from 2015 demonstrated left shoulder subscapularis and biceps tear and supraspinatus tendinosis/subacromial bursitis with capsulitis.
The left shoulder ultrasound report of 22 August 2019 noted “chronic appearing complete tears of subscapularis and long head of biceps". The insurer submits this pathology predated the accident. The insurer submits at most the claimant suffered a soft tissue aggravation of the pre-existing shoulder injury which has since resolved.
The insurer notes the claimant had a pre-existing C6/7 disc osteophyte impinging the exiting left C7 nerve root. The claimant had pre-accident radiculopathy in the cervical spine with neurological symptoms including decreased strength in the left upper limb. Indeed, the insurer notes the NSW ambulance report states the claimant said he had “intermittent numbness to L arm with hx of same over past few weeks”.
The insurer submits the cervical spine MRI of 2020 was unchanged from the MRI scan of 2017. The insurer submits there is no evidence of any verifiable radiculopathy in the cervical spine related to the accident.

Claimant’s submissions

The claimant provided undated submissions in response to the insurer’s application for review.[32]
[32] AD2 p 3
The claimant submitted that Medical Assessor Bodel’s use of the word “probably” where he stated there was “probably” additional damage to the cartilaginous endplate at the C6/7 level is of no consequence where the standard of proof is “on the balance of probabilities”. Further, in finding the claimant had probably sustained additional damage to the cervical spine Medical Assessor Bodel was of the view the claimant was “relatively asymptomatic” in respect of the neck pre-accident.
In response to the insurer’s submissions the claimant submits that it was not necessary to find radiculopathy, where cartilaginous injury without radiculopathy also satisfies the definition of non-minor injury.
The claimant also noted that Medical Assessor Bodel found the claimant was “relatively asymptomatic” notwithstanding the existence of a pre-existing condition in the left shoulder. However, he was satisfied on clinical grounds that the claimant sustained a further material injury by way of progression of the tears already in existence. The claimant notes Medical Assessor Bodel found the claimant’s current symptoms were “an extension of those injuries which would constitute a partial rupture of tendons and ligaments”.
In response to the insurer’s submissions the claimant submits that in finding an extension of the pre-existing injuries to the left shoulder Medical Assessor Bodel has relied on his clinical examination and the fact that the claimant was relatively asymptomatic pre-accident.
The claimant also notes the 2015 shoulder ultrasound refers to a rupture rather than a full thickness tear of the biceps tendon, noting the 2019 ultrasound diagnosis refers to a “complete tear … [of the] long head of biceps”.
The claimant also provided submissions dated 26 February 2022 in support of the application filed with the Commission where the claimant argued the insurer had not properly investigated the claim before making the minor injury determination.[33]

THE MEDICAL EXAMINATION
[33] AD1 p 8

Mr Dincer was examined by Medical Assessor Michael Couch and Medical Assessor Wing Chan at the Commission medical rooms over a period of 85 minutes on Tuesday, 23 May 2023. A Turkish interpreter, Mr Mahmut Oguzhan, NAATI Number: CPN01045P, was in attendance throughout. In fact, Mr Dincer, who had emigrated to Australia in 1988, spoke fair English and the interpreter was used about half of the time for clarification and to ensure accuracy. Full COVID-19 precautions were preserved.

Pre-accident medical history and relevant personal details

Mr Dincer said that he emigrated to Australia from Turkey in 1998. He initially worked in a paper factory, and also worked as a cleaner at a Westfield Shopping Centre. He had been in receipt of the Centrelink Disability Support Pension (DSP) since 1997 because of depression. On questioning, he said that he had not received inpatient treatment for this. He lives in Mascot with his wife and they have two adult sons and one daughter, who have all married and left home. They have six grandchildren, and he sees the ones that live close regularly.
Mr Dincer was asked about his past medical history. He said he had had “minor back pain – a long time ago”. He denied any specific accident or injury to cause this. When asked about any neck injuries or symptoms, he replied “no trouble”. He was asked about an MRI of the cervical spine, dated 29 November 2017. He replied, “I’m not exactly sure – maybe a routine check-up”.
When asked about the left shoulder, the first thing Mr Dincer said was that after the accident he began experiencing a shoulder problem, and also symptoms on the left side of his neck. When asked specifically about an ultrasound examination of the left shoulder performed in 2015, he denied having any symptoms or having sustained an injury at that time. He added, “I went to the doctors very seldom – just for precaution”.
He was asked about his activities prior to the accident. He said that he did a little in their very small garden, where they grew some flowers. He did not help his wife around the house. When asked about walking prior to the accident, he said that he walked regularly – he said that he would go for a 15-minute walk in the morning, and in the afternoon would sometimes walk his grandchildren to the park to play. He added “I will also be walking this afternoon”.
Mr Dincer also advised he had undergone what sounded like an acute myocardial infarction, followed by coronary artery bypass graft (CABG) at St Vincent's Hospital some six months earlier. He said that he had begun to walk more again since his recovery.

History of the accident

Mr Dincer was driving his car on the inside lane of the M5 tunnel, heading west. A large truck (Mr Dincer showed the assessors a photograph of a large Kenworth prime mover, which he said was similar to the vehicle which had hit him). He indicated that the truck had hit the right side of his car, which then spun round and hit the left hand wall of the tunnel. The car stopped after this first impact but he thought it had then been hit again. The truck driver came to his assistance. He recalled being very scared at the time. He was wearing his seatbelt and no airbags activated. He said that he had struck the top of his head on the inside of his car, which resulted in considerable bleeding. This history was consistent with the history recorded by Medical Assessor Bodel.
An ambulance attended and he was taken to Canterbury Hospital Emergency Department and subsequently assessed at Royal Prince Alfred Hospital Emergency Department. He was subsequently discharged home – his son collected him. Mr Dincer recalled that the hospital said that he could stay longer, but he wanted to go home.

History of symptoms and treatment following the accident

Mr Dincer was asked what his worst symptoms were after the accident. He replied, “on my left side – completely on the left side”. He described pain in his neck, left shoulder and arm, left leg, and back. He was asked why he thought the symptoms were on his left side. He replied that he thought he had struck the inside of his car in “too many places”. Mr Dincer confirmed that subsequent treatment had been from his general practitioner (GP) Dr Capa, and Dr Dowla neurologist. He had also attended a physiotherapist and a Turkish speaking psychologist.
Mr Dincer confirmed that he had not had any surgical treatment for injuries sustained in the accident. When asked about injections he said that his doctor was going to give him an injection although the Medical Assessors were not quite clear to what area but said that another doctor had told him that there might be side-effects, and it had not eventuated. In particular, he had not received any injections to the left shoulder.

Details of any relevant injuries or conditions sustained since the accident

Mr Dincer denied any such incidents. He also added that he had purchased a new car after the car involved in the accident had been written off. He continues to keep it registered and turns over the engine but has not driven it at all because of anxiety.

Current symptoms

When asked what body areas currently troubled him the most Mr Dincer nominated the left shoulder and left upper limb.

Left shoulder and upper limb

He described pain, putting his right hand over the left shoulder cowl. He said that he had taken to using his right hand more, despite being naturally left-handed, and that he was now getting some pain in the right shoulder as well. The Medical Assessors asked Mr Dincer to elevate his arms at this stage in the interview: he flexed the right shoulder to approximately 130 degrees and the left to 70-80 degrees. He said that the left shoulder is never pain-free, but pain gets worse with stress. He cannot lie on his left side in bed.
Mr Dincer pointed to the medial left elbow and arm and round the base of his left thumb. He described numbness, saying that this went from his shoulder blade down over the flexor aspect of the arm to the elbow.

Neck

Mr Dincer indicated pain on the left side of the neck. This is more intermittent than the shoulder pain. He also said that his balance had become poor.

Back

Mr Dincer denied any specific symptoms in the thoracic spine region. He described pain pointing to the lumbosacral area. This is intermittent. He said that he can bend forward carefully but gets more pain when he is straightening up from flexion. He also said that “when I’m walking, all of a sudden my left leg gives way and loses control…not all the time”. He has sometimes felt that he will fall and has sought support but has not actually fallen to date. He described weakness and numbness in the left lower limb. When asked about relieving factors, he said that when he gets his left lower limb symptoms, he will sit down if he can, and if not, stand still. His left lower limb improves after 5 to 10 minutes’ rest.

Current and proposed treatment

For analgesia, Mr Dincer takes about four Paracetamol a day. He also takes the SSRI antidepressant Zoloft, low dose Aspirin, Amlodipine, Metoprolol, Lipitor, Amiodarone (anti-arrhythmic) and the diuretic Frusemide.

Lifestyle factors

Mr Dincer said he smoked nearly 20 cigarettes a day prior to his heart attack but had now cut down to only three or four a day. He has stopped drinking alcohol.

Physical examination

Mr Dincer presented as a short 66-year-old man of stocky build. At a height of approximately 160cm and weighing approximately 78kg he was carrying a slight excess of body fat only. He had thinning hair and a short grey beard. He spoke reasonable English, so the interpreter’s services were only utilised for clarity. Gait and posture were within normal limits. When he removed his shirt a long, fairly recent midline sternotomy scar from CABG was noted. There was also an older, midline upper abdominal scar, which he had said had been for a “stomach operation”. He was cooperative throughout, appeared to make quite good effort during testing of active movements, and there was no evidence of abnormal pain behaviours or deliberate self-limitation.

Cervical spine

Posture of the head and neck was within normal limits. On gentle palpation, he described moderate tenderness over the posterior cervical spine. There was moderate and asymmetrical restriction of AROM (active range of motion) of the cervical spine, with flexion about one-third of normal and extension half of normal. Lateral flexion was half of normal bilaterally, rotation was a quarter of normal to the left and half of normal to the right. Both trapezius muscles were soft to palpation, although the left was moderately tender.

The Medical Assessors agreed that there was dysmetria, but no muscle guarding or spasm. As can be seen below from the upper limb examination, there were no objective signs of radiculopathy

Upper limbs

Mr Dincer’s hands were clean and soft without any callouses, consistent with his history of little recent physical work. The right forearm measured 27cm in circumference, and the left 27.5cm. Mr Dincer is left hand dominant. There was the typical appearance of a ruptured long head of biceps in the left upper arm (Popeye arm). Probably because of this, there was a greater asymmetry between the right and left upper arm, the right measuring 28.5 and the left 31cm. The Medical Assessors agreed there was no evidence of unilateral muscle wasting in the upper limbs. Biceps and triceps reflexes were within normal limits and symmetrical. Both brachioradialis reflexes were within normal limits, although the right was very slightly brisker than the left.
Power of all muscle groups was within normal limits (Grade 5/5) and symmetrical bilaterally, although the ruptured left long head of biceps (LHB) was apparent when Mr Dincer flexed the left elbow against resistance. Grip strength was normal bilaterally, as was power of intrinsic muscles – there was no wasting of the intrinsic muscles.
Sensation was preserved in the upper limbs, apart from possible subjective diminution to light touch over the left C5 distribution.
Thus, the Panel found no objective signs which would lead to a diagnosis of radiculopathy.
There was no wasting of the shoulder girdle muscles and no winging of the scapulae on resisted forward pushing. On palpation, Mr Dincer described moderate tenderness over the lateral aspect of the left humeral head in the region of the supraspinatus insertion.
Active range of motion was moderately restricted bilaterally – more so on the left. Movements were measured with a goniometer as tabulated below:

Right

Left

Flexion

100°

70°

Extension

50°

40°

Abduction

110°

70°

Adduction

40°

20°

External rotation

80°

70°

Internal Rotation

80°

50°

Thoracic spine

Mr Dincer reported no tenderness to palpation over the thoracic spine. Spinal rotation, which mainly occurs in the thoracic spine, was tested with him seated in a chair to stabilise the pelvis. This was within normal limits at 30 degrees bilaterally. Whilst he described some low back pain at the limits of rotation there was definitely no thoracic spine pain.

Lumbosacral spine

Posture of the lumbosacral spine was within normal limits. On palpation while lying prone, Mr Dincer described slight tenderness over the lumbosacral spine only. Active range of motion of the lumbar spine was tested with Mr Dincer standing with knees straight. He could flex forward with fingertips to below the knees with a 5cm expansion over a measured 15cm lumbar segment (the normal lower limb for this MacRae-Wright movement is 5cm). In contrast, lumbar extension was only one-third of normal at 10 degrees. Lateral flexion was approximately two-thirds of normal to the right at 20 degrees and half of normal to the left at 15 degrees. Mr Dincer described left-sided low back pain, particularly on left lateral flexion.
The Medical Assessors tested for lumbar paraspinal muscle spasm by asking Mr Dincer to stand and alternately move his bodyweight from one foot to the other. Palpation of the lumbar paraspinal muscles during this manoeuvre showed that the right-sided muscles relaxed normally when he stood on the right foot. Mr Dincer appeared to find it rather more difficult to balance on the left foot but there was no definite spasm/guarding when he did this.
As will become apparent there were no signs of lumbosacral radiculopathy when the lower limbs were examined. The Medical Assessors agreed that there was tenderness and dysmetria on examination of the lumbar spine, but no other abnormal signs.

Lower limbs

When the lower limbs were measured 8cm proximal to the upper pole of the patella, both thighs measured equally in girth at 31.5cm. The right calf measured 37.5 and the left 37cm. Mr Dincer confirmed that he had been mainly left-footed when he had played soccer at high school in Turkey. Knee jerks were brisk and symmetrical, and ankle jerks were normal and symmetrical. Power of extensor hallucis longus (L5 nerve root) was normal bilaterally. Mr Dincer needed some verbal encouragement to exert full effort on the left. Power of ankle eversion (S1 nerve root) was also normal and symmetrical. There was no evidence of positive neural tension on testing seated straight-leg-raising. On sensory testing, Mr Dincer described some diminution to light touch over the left medial calf only.
As noted above, gait was within normal limits. When the Medical Assessors asked Mr Dincer to try walking with his weight on his forefeet and heels off the floor he said that he was restricted from doing so because he had pain in his left knee and had received a recent injection. Instead of the normal procedure, Mr Dincer was asked to stand facing the examination couch, supporting himself with hands on the couch. In this position he was able to lift one heel off the floor at a time. Squatting and heel walking were not tested.

Comments on consistency

The Medical Assessors agreed that Mr Dincer presented in a generally straightforward manner. They noted that he gave rather vague responses to questioning about previous imaging of the cervical spine and left shoulder and possible symptoms in those areas. It was not considered useful to pursue this further with him.

DIAGNOSIS AND CAUSATION

Mr Dincer is a 66-year-old man who emigrated from his native Turkey to Australia at age 32. He had worked in a factory and as a cleaner, but after about 10 years he became unfit for work due to depression and has been in receipt of the DSP since.
There was previous documentation of symptoms and imaging performed on the cervical spine and left shoulder. The Medical Assessors noted that Mr Dincer was apparently unable to give any further history about this.
He was clearly involved in a quite frightening accident when his car was hit by a large truck in the M5 Tunnel some four years prior to this medical reassessment. His car was spun round and sufficiently damaged to be written-off. He described being very frightened at the time and although he has purchased a new car, he says that he has not felt able to drive it since then.
The Panel is satisfied from his description of the accident, that it could have caused or contributed to a worsening of musculoskeletal injuries.
Mr Dincer’s main complaints now are in relation to the cervical spine and left shoulder.

Cervical spine

Examination of the cervical spine shows moderate tenderness and dysmetria, but no muscle guarding or spasm and no evidence of radiculopathy. There has been no documentation of a fracture of the cervical spine.
The Panel finds Mr Dincer sustained an aggravation of pre-existing cervical spondylosis and this may well still be symptomatic. However, there is no evidence of radiculopathy and therefore, the injury to the cervical spine meets the criteria for a threshold injury.

Lumbar spine

Mr Dincer described intermittent low back pain. Examination showed slight tenderness over the lumbosacral spine, good flexion, but some restriction of extension and lateral flexion, particularly to the left. These constituted dysmetria but there was no definite muscle guarding or spasm. Detailed examination of the lower limbs showed no evidence of radiculopathy.
The Panel finds Mr Dincer sustained an aggravation of pre-existing lumbar spondylosis. This meets the criteria for a threshold injury.

Thoracic spine

Mr Dincer denied any specific pain in the thoracic spine and examination of this region was normal. There is no evidence of injury sustained in the thoracic spine. The Panel notes Mr Dincer underwent an MRI of the thoracic spine on 6 January 2018 and finds in the absence of any complaint any injury to the thoracic spine was pre-existing.
The Panel finds the claimant did not sustain injury to the thoracic spine caused by the accident.

Left shoulder

The other area troubling Mr Dincer significantly is his left shoulder. There is a dispute as to diagnosis and causation of the left shoulder injury.
Examination shows tenderness over the supraspinatus insertion and moderate restriction of AROM. There is no detectable wasting of the shoulder girdle muscles, such as might occur with a massive rotator cuff tear. He has clear physical evidence of a pre-existing rupture of the LHB.
An ultrasound of the left shoulder on 9 March 2015 showed attenuation of the subscapularis and an apparent full thickness tear of the superficial fibres, rupture of the LHB tendon, and supraspinatus tendinosis with bursal thickening and bunching on abduction. There were said also to be features of capsulitis. The reporting radiologist recommended an MRI of the shoulder to give further information, particularly about the subscapularis tendon, but this was apparently not performed.
An ultrasound of the left shoulder on 22 August 2019, four months after the accident was reported to show a chronic appearing, complete tear of the subscapularis and long head of biceps and diffuse thickening in the supraspinatus, suggesting tendinosis with no discrete tear, and thickening of the subacromial bursa, with bunching and pain on dynamic scanning.
When comparing the 2015 and 2019 ultrasound examinations, it is apparent that the full thickness tear of the superficial fibres of the subscapularis seen in 2015 has become a complete tear of the tendon. The difficult question is whether this can be attributed to the accident or whether it is part of the natural progression of degenerative rotator cuff pathology.
The Panel notes there were no complaints pertaining to the left shoulder recorded by the GP after 17 March 2015 but a consistent history of complaint pertaining to the left shoulder following the accident. The ambulance report records complaints of pain to the left clavicle and shoulder and Royal Prince Alfred Hospital reported the left shoulder was tender over the lateral clavicle with limited range of movement due to pain. Mr Dincer underwent an X-ray of his left shoulder at the hospital. The Blacktown Family Medical Centre reported injury to the left shoulder on 16 April 2019, one week after the accident with a record of consistent complaints of left shoulder pain thereafter. On 22 August 2019, four months after the accident the ultrasound demonstrated the full thickness tear of the superficial fibres had become a complete tear of the tendon. The Panel also notes that Mr Dincer did not recall undergoing an ultrasound examination of his left shoulder in 2015 or any significant symptoms prior to the accident.
Having regard to the comments of Wright J in Briggs the Panel considers it is appropriate to apply the test as to causation set out in Part 6 of the Guidelines.
In Briggs Wright J also reminded us that the relevant legal test in relation to causation does not require scientific certainty.[34] His Honour stated at [70]-[72]:
“70. This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce[2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):
‘138 Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:
“An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference”.’
71. The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes[1970] 2 NSWR 238 as follows, at 242
‘... it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.’
72. Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].”
[34] Briggs [2022] NSWSC 372.
In considering whether the complete subscapularis tendon tear was caused or materially contributed to by the motor accident the Panel notes the accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible.
Having regard to the lack of left shoulder complaints between 2015 and the accident, the contemporaneous complaints following the accident and the consistency of complaint thereafter the Panel finds, on the balance of probabilities, and noting the test does not require scientific certainty that the accident was a contributing cause which was more than negligible to the complete subscapularis tendon tear.
A complete subscapularis tear constitutes a complete rupture of a tendon and in accordance with s 1.6(2) of the MAI Act is not a threshold injury.

PANEL CONCLUSION

The Panel determines the following injuries caused by the accident are threshold injuries:
· cervical spine – aggravation of pre-existing cervical spondylosis, and
· lumbar spine – aggravation of pre-existing lumbar spondylosis.
The Panel determines the following injury caused by the accident is not a threshold injury:
· left shoulder – complete tear of the subscapularis tendon.
The Panel determines the following injury was not caused by the accident:
· injury to the thoracic spine.

Right	Left
Flexion	100°	70°
Extension	50°	40°
Abduction	110°	70°
Adduction	40°	20°
External rotation	80°	70°
Internal Rotation	80°	50°

[2023] NSWPICMP 286

21 June 2023