Salah v QBE Insurance (Australia) Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Salah v QBE Insurance (Australia) Limited [2023] NSWPICMP 179
CLAIMANT:	Elham Salah
INSURER:	QBE Insurance (Australia) Limited
REVIEW Panel
MEMBER:	Alexander Bolton
MEDICAL ASSESSOR:	Geoffrey Stubbs
MEDICAL ASSESSOR:	Thomas Rosenthal
DATE OF DECISION:	4 May 2023
CATCHWORDS:	MOTOR ACCIDENTS – Review of decision of Medical Assessor (MA) Woo dated 29 March 2022; issue of causation; whether right shoulder arthroscopic rotator cuff tear was causally related to the accident and if so whether it was reasonable and necessary in the circumstances; the MA found that the injury and the surgery were not causally related to the accident; claimant was injured on 13 October 2017; no pre-accident complaints of right shoulder disability; claimant lodged application for assessment nearly two years post-accident with no reference to right shoulder injury for assessment; claimant obtained a report from her treating surgeon of 18 September 2020 who recorded a full thickness right shoulder supraspinatus rotator cuff tear and attributed this to the accident; claimant also sought treatment of an intersegmental L3/4 laminectomy; Held – Panel concluded that laminectomy surgery would accelerate adjacent segment degeneration but Panel also not satisfied with any evidence that any disability of the L3/4 level should be a major cause of the claimants back pain; Panel concluded that the injury to the claimant’s lumbar spine was a soft tissue injury that had resolved; Panel also concluded that there is no causal connection between the subsequent rotator cuff tear found on radiological investigations and that an acute rotator cuff tear would have been symptomatic if it had occurred at the time of the accident; Panel not satisfied that the surgery recommended by the claimant’s treating surgeons is causally related to the accident.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Determination 1. The Panel revokes the decision of Medical Assessor Woo dated 29 March 2022. 2. The Panel determines that the injury to the claimant’s right shoulder is not causally related to the accident. 3. The Panel is not of the finding that the right shoulder arthroscopic rotator cuff repair surgery proposed by Dr Herald and intersegmental L3/4 laminectomy recommended by Dr McKechnie is causally related to the accident. 4. The Panel determines that the right shoulder arthroscopic rotator cuff repair surgery proposed by Dr Herald and intersegmental L3/4 laminectomy recommended by Dr McKechnie are not causally related to the accident and in any event, not reasonable and necessary in the circumstances.

Review decision

The following treatment disputes were referred by the Personal Injury Commission (Commission) for assessment:
a. Whether the right shoulder arthroscopic rotator cuff repair surgery proposed by Dr Herald and intersegmental L3/4 laminectomy recommended by Dr McKechnie are casually related to the injuries sustained in the motor vehicle accident.
b. Whether the right shoulder arthroscopic rotator cuff repair surgery proposed by Dr Herald and intersegmental L3/4 laminectomy recommended by Dr McKechnie are reasonable and necessary in the circumstances.
This is a review of the decision of Medical Assessor Woo (the Medical Assessor), who found in his certificate of 29 March 2022 that treatment to the claimant being right shoulder arthroscopic rotator cuff repair surgery recommended by Dr Herald and intersegmental L3/4 laminectomy recommended by Dr McKechnie do not relate to the injury caused by the accident on 13 October 2017.

The accident

Elham Salah (the claimant) was involved in an accident on 13 October 2017. The claimant was stationary at traffic control lights when the insured car collided with the rear of her car. The claimant’s car did not impact with the vehicle in front. No airbags were deployed. The claimant was able to drive her car home.

Injuries

As a result of the accident, the claimant says that she suffered the following injuries:
a)    injury to right shoulder;
b)    injury to cervical spine;
c)    injury to lumbar spine, and
d)    injury to left knee.

Claimant’s submissions

The claimant submits that the Medical Assessor erred in relation to the assessment of the need for proposed surgery to the claimant’s right shoulder and lumbar spine.
The Medical Assessor had before him a report of Dr Jonathan Herald dated 18 September 2020 which noted as follows:
“Prior to the motor vehicle accident I had seen her and she only complained of left shoulder pain, not right shoulder pain. … Elham Saleh has a high grade partial or essentially full thickness right shoulder supraspinatus rotator cuff tear.”
The motor vehicle accident occurred on 13 October 2017. The MRI of the right shoulder was dated 4 June 2019.
The claimant submits that the Medical Assessor has failed to explain given that there were no complaints of pain of the right shoulder by the claimant prior to 13 October 2017, how the full thickness tear occurred in her right shoulder and why this has not been considered as caused by the subject motor accident.
The claimant further relies on a subsequent report of Dr Herald dated 19 April 2022. He commented on the assessment of the Medical Assessor as follows at page 1 paragraph 1:
“Based on the information I have available to me, the history, examination and in particular the MRI findings appear consistent with no pre-existing degenerative changes but rather an acute tear. I cannot comment on what Dr Woo found on the MRI scan that suggested pre-existed degenerative changes in relation to the rotator cuff tear.”
The Medical Assessor had said “The right shoulder range of movement reported by Dr Coroneos on 4 September 2019, 2 ½ months later, was significantly better and near normal. During my assessment, the range of movement was found to be unreliable with suggestions of voluntary guarding.” To this, the claimant submits that the Medical Assessor erred in not drawing to the claimant’s attention, his opinion that the claimant was performing voluntary guarding of the range of movement of her right shoulder. The claimant says that the Medical Assessor was required under the rules and guidelines to draw this observation to the claimant and to allow her to address the issue if necessary.
The claimant submits that the Medical Assessor had the benefit of a report from Dr McKechnie dated 22 October 2020 which contains the following history at paragraph 3:
“In my opinion, the motor vehicle accident on 13 October 2017 is the main contributing factor to the development of her current symptoms and subsequent need for surgery. She has not had spine surgery since the 1980s and this was at the level 4/5 level. They are age related changes.
She previously had motor vehicle accidents in 2008 and 2013 but these accidents were mainly associated with cervical spine symptoms.
She has only complained of increasing back and bilateral leg pain following the
motor vehicle accident in 2017.”
The claimant submits that the Medical Assessor also had the benefit of a report of Dr Powell, orthopaedic surgeon dated 10 December 2019 who noted as follows at page 4 in regard to the lower back symptoms:
“She reports constant sharp pain in the middle and lower region of the lower back, restricted bilateral level of belt line.
Pain radiates down the posterolateral aspect of the leg to the foot. It is accompanied by numbness in the thigh. She is aware of stiffness and restriction in range of motion.”
The claimant submits that the Medical Assessor does not appear to have referred to this report or the findings by Dr Powell but the Medical Assessor did refer to the findings of Dr Coroneos submitted by the insurer.
In the initial treatment dispute application, the claimant made submissions for treatment to her right shoulder by way of arthroscopic rotator cuff repair surgery as recommended by Dr Herald. The claimant also sought surgery by way of an intersegmental L3/4 laminectomy as recommended by Dr McKechnie.
The claimant relies on the opinion of Dr Herald in his report dated 18 September 2020 which noted as follows:
“Question- In your view is the need for surgery reasonable and necessary and arising from the injuries caused by or aggravated by the motor vehicle accident on the 13th of October 2017?
Answer- As you know, Elham Salah has a high grade partial or essentially full
thickness right shoulder supraspinatus rotator cuff tear. Without an arthroscopic
rotator cuff repair surgery, her rotator cuff tear would progress over time and as such it is reasonable and necessary to have the surgery. As you know she developed right shoulder pain after her motor vehicle accident on 13 October 2017. Prior to the motor vehicle accident I had seen her and she only complained of left shoulder pain, not right shoulder pain. I have an assessment form which she has filled out in regard to this on the 1st of August 2016.
Question- If so, please explain your reasons why?
Answer- As stated above I saw her prior to the motor vehicle accident on 13 October 2017 and her right shoulder had no pain or restricted motion or symptoms. I have paperwork that she has filled out indicating she only had pain in her left shoulder and my assessment for her in regard to her previous motor vehicle accident on 16 March 2003 do not report any right shoulder injury. However, since the accident on 13 October 2017, she has been investigated and treated for a right shoulder problem. Thus, I would state that her right shoulder injury and the need for surgery on her right shoulder is most likely due to the motor vehicle accident on 13 October 2017.”
The claimant submits that the motor vehicle accident need not be the sole cause of the injury but can be a contributing factor to the shoulder injury.
The claimant further submits that in light of the fact that Dr Herald noted that it was the left shoulder that the claimant was treated for prior to the accident then his opinion should be followed in relation to the need for right shoulder surgery. The claimant submits that the proposed surgery by Dr Herald is reasonable and necessary and resulted from the injuries sustained in the subject motor vehicle accident.
In relation to the need for an L3/4 laminectomy, the claimant relies on the report of Dr McKechnie dated 22 October 2020. At paragraph 3 of this report, Dr McKechnie noted as follows:
“In my opinion, the motor vehicle accident on 13 October 2017 is the main contributing factor to the development of her current symptoms and subsequent need for surgery. She has not had spine surgery since the 1980’s and this was at the L4/5 level. There are age related changes. She previously had a motor vehicle accidents in 2008 and 2013, but these accidents were mainly associated with cervical spine symptoms. She has only complained of increasing back and bilateral leg pain following the motor vehicle accident in 2017.”
The claimant also relies on the earlier report of Dr McKechnie dated 11 June 2015 addressed to Associate Professor Ireland in relation to the claimant’s neck injury and lumbar spinal injury at L4/5 (claimant’s emphasis). The claimant highlights that there is no mention of the L3/L4 disc space in this report.
The claimant submits, on balance, that the injury to her right shoulder and to her lumbar spine at L3/4 were caused by or aggravated in the subject motor vehicle accident and the need for the surgery is recommended by two eminent surgeons as being reasonable and necessary.

Insurer’s submissions

The insurer submits that the claimant lodged a Medical Assessment 2A dated 12 June 2019 (nearly two years post accident). The insurer says that there was no reference made to a right shoulder injury in the Medical Assessment 2A and so the right shoulder was not assessed, other than as part of the left shoulder assessment and general examination.
The insurer noted that the certificate of Medical Assessor Cameron regarding the alleged physical injuries of the claimant and dated 28 March 2020 assessed WPI below 10%. Medical Assessor Cameron considered there was 0% whole person impairment (WPI) associated with all claimed injuries with the exception of 2% WPI for the left shoulder injury.
The insurer has referred to the claimant’s submissions which note that the subject accident occurred on 13 October 2017. The insurer referred to a report of Dr Herald dated 18 September 2020 which noted that the doctor had taken a history that prior to the subject accident the claimant had only complained of left shoulder pain and not right shoulder pain. The insurer says that the claimant’s solicitors therefore utilised this reasoning in their submissions to suggest that the Medical Assessor had failed to explain his path of reasoning in determining that the claimant’s right shoulder condition was consistent with pre-existing degenerative changes. The insurer relies on the following instances of right shoulder symptoms that predate the subject accident:
(a)    Report of Dr Guirgis dated 13 July 2019 which noted post-traumatic chronic supraspinatus tendonitis of right and left shoulders on a background of motor vehicle accidents in 1995 and 1997 and a fall in 1996.
(b)    Personal injury claim form dated 18 August 2018 for a motor vehicle accident on 18 April 2008 which recorded right shoulder complaints.
(c)     Clinical records of Liverpool Family Medical Centre which noted references to right shoulder pain on numerous different occasions.
(d)    Report of Associate Professor Ireland dated 11 September 2008 which recorded complaints of right shoulder pain.
(e)     Report of Dr Trevitt dated 13 November 2008 which reported symptoms in the upper right shoulder girdle consistent with nerve root irritation.
(f)     Report of Dr Kahlil dated 3 February 2009 which referred to pain in the neck, back, right upper limb and right shoulder. There was a referral to a shoulder specialist.
(g)    Records of Bankstown Medical Centre noted on 18 September 2015 that there were bilateral shoulder complaints.
(h)    Report of Dr Guirgis dated 14 September 2016 noting restricted range of motion in the cervical spine, left shoulder, right shoulder, thoracic spine and lumbar spine.
(i)      Report of Associate Professor Fearnside dated 27 March 2017 which noted complaints of neck pain and left and right brachialgia with radicular pain.
(j)      Bankstown Medical Centre records noted on 30 April 2017 that neck and left frozen shoulder pain was reported and her right shoulder was now getting affected.
The insurer says that the Medical Assessor has referred to relevant material which identifies the pre-accident right shoulder complaints.
Regarding the lumbar spine, the insurer submits that it was noted on page 6 of the claimant’s submissions that the claimant considers that the Medical Assessor has failed to explain his path of reasoning regarding his conclusion with respect to the lumbar spine. The submissions refer to page 8 of the Medical Assessor’s certificate, where it was noted that the proposed intersegmental L3/4 laminectomy does not relate to the injuries caused by the motor accident. The Medical Assessor concluded that the claimant’s symptoms in her lumbar spine are related to her previous surgery to the L4/5 disc level and degenerative changes.
The insurer says that the alleged error identified in the claimant’s submissions appears to be based on the difference between the Medical Assessor’s findings as compared to the conclusions in the reports of Dr McKechnie, the doctor who had proposed the lumbar surgery.
The insurer says that the Medical Assessor clearly referred to the conclusions of Dr McKechnie on numerous occasions throughout his report. On page 8 he noted the report of Dr McKechnie dated 15 February 2018 and noted the request for approval of the L3/4 laminectomy of Dr McKechnie dated 2 September 2019. The Medical Assessor also referred to MRI of the lumbar spine dated 21 December 2017 and the findings at the L3/4 and L4/5 level.
The insurer also made reference to the Medical Assessor’s reference in his certificate to the submissions of the insurer that were annexed to the Medical Assessment 2R Reply. These submissions at paragraphs 59-94 provided a detailed discussion of the pre and post-accident lumbar spine complaints that were included in the material that was annexed to the claimant’s Medical Assessment 1A application in the insurer’s Medical Assessment 1R Reply.
The insurer submits that it is therefore apparent that there was a significant history of pre-accident material that refers to complaints with respect to the L3/4 level of the lumbar spine that predate the subject accident. The insurer says that it was open to the Medical Assessor to make the finding that he did which was that any injury to that level of the lumbar spine predates the subject accident and that any proposed surgery to that level is not reasonable and necessary treatment arising from the subject accident.
The insurer noted that the claimant had served a report of Dr Powell dated 10 December 2019. However, this report was not relied upon by the claimant as it was not included in the claimants Medical Assessment 1A application for the treatment dispute.
The insurer submitted that there is good reason for this, given that Dr Powell found that the two proposed surgeries that were the subject of dispute were not reasonable and necessary treatment relating to the subject accident.
The insurer submits that the relevant conclusions from Dr Powell’s report were highlighted in the insurer’s submissions that were annexed to the Reply. With the right shoulder surgery, the insurer says that Dr Powell’s report noted as follows:
“In relation to the right shoulder, Dr Herald has recommended a right shoulder arthroscopy. Although this is reasonable based on her clinical presentation and results of investigations performed, I do not believe it is required on the basis of injuries sustained in the motor vehicle accident”.
The insurer then submits that with respect to the lumbar spine, Dr Powell noted as follows:
“Dr Simon McKechnie has recommended decompressive surgery for the cervical and lumbar spine though this is primarily on the basis of her pre-existing condition. Current treatment is limited to the use of medications. Ms Salah may benefit from a more active self-treated exercise program incorporating some core and postural muscle strengthening work”.
The insurer submits that in the present application, the claimant has now attempted to utilise an aspect of Dr Powell’s report to support an assertion that lumbar spine surgery should be approved and should have been referred to by the Medical Assessor in his certificate. The insurer says that based on the passages above, this submission clearly cannot be accepted. The insurer says that Dr Powell did not consider either surgical procedure to be indicated.
The insurer says that the Medical Assessor referred to the findings of Dr Coroneos, who provided an opinion that all of the findings in the imaging of the lumbar spine were pre-existing and not caused by the subject accident. He found there to be no evidence of radiculopathy or myelopathy and all of the changes on the imaging were pre-existing to the subject accident. He did not consider there was any need for surgery arising from the subject accident.
The insurer says that Dr Powell provided an opinion regarding the surgeries that was consistent with that of Dr Coroneos. The insurer says that the claimant has sought to rely on the report of Dr Powell but has not referred to his ultimate conclusions regarding the surgeries which was consistent with those of Dr Coroneos.
The medical certificate attached to the claimant’s Personal Injury Claim Form completed by Dr Hatoum on 16 January 2018, noted he had only consulted the claimant for a period of two months (i.e., not before accident). He diagnosed injury to neck and back only and recorded a history of laminectomy.

The insurer noted that Medical Assessor Cameron recorded inconsistent movement at both shoulders, which the claimant said was related to “variable pain” in both shoulders. There was reduction in movement at the cervical spine but no non-definable radicular complaints present. This was also the case for the lumbar spine. Medical Assessor Cameron determined that the subject accident gave rise to 2% WPI in the left shoulder and 0% WPI in all other areas.
The insurer submits that the accident has not given rise to a need for surgery in either the right shoulder or lumbar spine.
Regarding the right shoulder, the insurer said that Dr Herald noted in his report that the claimant has a need for surgery on the right shoulder and that when he consulted the claimant prior to the accident she did not report any right shoulder pain to him prior to the accident, only left shoulder pain. The insurer says that Dr Herald therefore formed the conclusion that the right shoulder condition that he suggests gives rise to a need for surgery must have been caused by the accident.
The insurer submits that this assumption made by Dr Herald is incorrect, as the extensive medical file makes clear that the claimant did suffer from right shoulder complaints prior to the accident. The insurer also submits that the subject accident did not cause right shoulder complaints, noting the absence of such complaints at the time of the subject accident and noting that this was not previously an injury alleged as part of the claim.
The insurer submits that the claimant did not suffer any right shoulder injury in the subject accident. The medical certificate attached to the Personal Injury Claim Form, completed by Dr Hatoum on 16 January 2018, noted he had only consulted the claimant for a period of two months (i.e., not before accident). He diagnosed injury to neck and back only and recorded a history of laminectomy. There is no reference to a right shoulder injury. The personal injury claim form refers only to neck and back injuries (as well as shock).
The insurer submits that it is clear that the right shoulder was not identified as an injury that had occurred as a result of the subject accident by the claimant:
a.    in the claim form at the time of the accident;
b.    in the medical certificate prepared by the general practitioner at the time of the accident or,
c.     at that time the Medical Assessment 2A was prepared two years after the subject accident.
The insurer submits that this represents an implicit concession that there was no right shoulder injury sustained in the accident.
Further, the insurer submits that the claimant had a prior right shoulder injury that pre-dates the subject accident. The insurer submits that there is a wealth of prior evidence to this effect.
The insurer refers to a report of Dr Guirgis, orthopaedic surgeon dated 13 July 1999 which referred to motor vehicle accidents on 28 May 1995 and 13 October 1997. The claimant also reported an incident in 1996 where she was walking backwards in her workplace and tripped over a bag lying on the ground, straining her right ankle. The doctor determined the 1995 motor vehicle accident caused post-traumatic mechanical derangement of the cervical spine with intervertebral disc involvement, aggravating the effects of pre-existing osteospondylosis, post traumatic chronic supraspinatus tendonitis of the right and left shoulders and an injury to the lumbar spine in the form of musculo-ligamentous sprain triggering and aggravating chronic pre-existing advanced degenerative changes that date back to the operative treatment performed in 1980.
The clinical records of Bankstown Medical Centre record pain in both shoulders on 11 March 2015 and a referral letter was sent to Dr Guirgis on that date. The records noted on 18 September 2015 that there were bilateral shoulder complaints. In a report dated 14 September 2016 of Dr Guirgis, he recorded that the claimant’s condition had slowly and steadily worsened over time. The insurer noted that on examination there was restricted range of motion in cervical spine, left shoulder, right shoulder, thoracic spine and lumbar spine.
The insurer referred to a report dated 14 September 2016 of Dr Guirgis, where he recorded that the claimant’s condition had slowly and steadily worsened over time. On examination, there was restricted range of motion in cervical spine, left shoulder, right shoulder, thoracic spine and lumbar spine. The Bankstown Medical Centre notes recorded on 6 December 2016 that there was a recurrence of pain in shoulder and neck.
The insurer in its submissions, referred to Bankstown Medical Centre records of 30 April 2017 which reported that the claimant was continuing to have pain in the neck and left frozen shoulder and also reported that her right shoulder was now getting affected.
The insurer submits that the pre and post-accident medical evidence makes clear that there was a pre-existing right shoulder injury and this was not caused by the subject accident.
Further, the insurer submits that the medico-legal evidence does not support the request for surgery.
Regarding the claimant’s lumbar spine, the insurer addressed the claimants submission that she requires an L3/4 laminectomy arising from the accident The insurer rejects this submission on a number of bases, namely:
a.    the minor nature of the collision and that this would not have given rise to any significant condition,
b.     the pre-existing lumbar spine condition and,
c.      due to the medico-legal evidence not supporting that any such proposed surgery is causally related to the subject accident.
The insurer relies on a report of Dr Coroneous. He attached 20 photographs of imaging which included radiological reports in relation to the spine. Dr Coroneos said that all of the changes on imaging are of spondylosis and none of the changes on imaging are caused by the subject accident. He said that all of the changes are of pre-existing cervical and lumbar spondylosis and prior surgery at L4/5. He said that none of the changes on the imaging were caused by the subject accident. He said that there was no sign of any neurosurgical spine injury having occurred.
The insurer says that it is apparent from the claimants own medical evidence that this does not support a need for lumbar surgery as being causally related to the accident. The insurer says that it is also apparent that there are numerous complaints of pain in the lumbar spine over a number of years before the accident as well as radiology reflecting prior conditions at various levels of the lumbar spine.
The insurer referred to a report of Dr Fearnside dated 27 March 2017. The claimant had reported continuing to experience neck pain and wore a neck brace when at home, left and right brachialgia with radicular pain, left shoulder pain with restricted range of motion, left lateral epicondylitis, tenosynovitis in right wrist and chronic aching in lower back.
The insurer says that in the six month period after this and prior to the accident, the claimant made the following complaints of back pain to doctors at Bankstown Medical Practice:
a.    17/05/2017 – claimant had pain in back and neck. Prescribed Panadeine Forte and Mobic.
b.    18/06/2017 – back and shoulder pain. Prescribed Panadeine Forte.
c.      The claimant was also concurrently making complaints of back pain to her other general practitioners at Liverpool Family Medical Centre:
d.    22/09/2017 – referral from Dr Adel Zaki to an unspecified recipient noted that the claimant had been a patient of the practice for more than 11 years and had been seen lately for regular review of her ongoing neck, upper and lower back pain.
e.    23/09/2017 – Some recent exacerbation of neck and upper back pain. Claimant prescribed Indocid.
The insurer submits that the treating evidence, as well as the medico-legal evidence discussed, makes clear that there is no reasonable and necessary need for a lumbar spine procedure arising from the subject accident.
The insurer maintains that this request should be dismissed.
The insurer submits that there is no reasonable and necessary need for the proposed surgical procedures to the right shoulder and lumbar spine that is causally related to the subject accident.

The medical evidence

The Medical Assessor provided a certificate dated 24 March 2022.
The Medical Assessor noted three earlier accidents occurring on:
a.    13 October 1997 with the claimant reporting pain in her back and left hip and aggravation of prior right ankle injury;
b.    18 April 2008 the claimant reporting injuries to her neck and back and an inability to do domestic work with complaints of considerable pain – Dr McKechnie recommended at that time a C5/6 foraminotomy and posterior microdiscectomy, and
c.     16 May 2013 the claimant reporting injuries to her neck, lower back, left shoulder and left knee. She continued consulting Dr McKechnie who continue to recommend cervical surgery and conservative management of her lumbar spine. This claimant made a claim which was the subject of a Medical Assessor’s review panel determination. The Review Panel accepted her injuries to be soft tissue to her cervical and lumbar spine and left shoulder following Nguyen principles. The Panel assessed 2% WPI.
The Medical Assessor reported that the claimant saw her neurosurgeon Dr McKechnie, again and whom she had been consulting regarding ongoing back and neck difficulties since 2008. She complained to him about increasing pain radiating from the neck through the right shoulder and upper arm as well as the lower back pain. The doctor again recommended C5/6 foraminotomy and also lumbar spine surgery at the L3/4 which were reported to have a good chance of relieving radicular leg pain but not chronic lumbar back pain. The Medical Assessor noted that prior to the accident, the doctor had recommended C5/6 from the posterior microdiscectomy and rhizolysis as a result of pre-existing some issues.
The Medical Assessor noted that the claimant also sought treatment from Dr Herald who diagnosed right shoulder rotator cuff tear, left shoulder aggravation of underlying adhesive capsulitis and right knee medial meniscus tear. Dr Herald recommended cortisone injections for the left shoulder and surgery for her right shoulder and right knee as well as zero therapy.
The Medical Assessor found that the claimant had the following injuries:
(a) lumbar spine – soft tissue injury and aggravation of pre-existing degenerative changes and prior surgery, and
(b) right shoulder – soft tissue injury and aggravation of pre-existing degenerative changes.
The Medical Assessor determined that based on the history of the accident, the mechanism of injury, clinical findings and radiological imaging findings, the claimant’s symptoms in her lumbar spine were related to her previous surgery to the L4/5 disc level and degenerative changes.
The Medical Assessor also determined that the proposed intersegmental L3/4 laminectomy did not relate to the injuries caused by the accident.
Concerning the claim for right shoulder arthroscopic rotator cuff repair, the Medical Assessor determined that the right shoulder symptoms were related to pre-existing degenerative changes based on MRI findings. The Medical Assessor also commented that clinical examination showed unreliable assessment of range of movement. The Medical Assessor said that the proposed surgery did not relate to the injuries caused by the motor accident.
With regard to treatment and care and whether it was reasonable and necessary, the Medical Assessor said that the proposed L3/4 laminectomy, based on the history of the accident, the mechanism of injury, clinical findings and radiological imaging findings, the symptoms in her lumbar spine were related to her previous surgery to the L4/5 disc level and degenerative changes. He said that there was no evidence of nerve root impingement related to the L3/4 disc level. The Medical Assessor concluded that the proposed surgery was not reasonable and necessary in the circumstances.
Concerning the claimant’s right shoulder arthroscopic rotator cuff repair, the Medical Assessor found that the claimants right shoulder symptoms were related to pre-existing degenerative changes based on the MRI findings. The Medical Assessor said that clinical examination showed unreliable assessment of range of movement. There was no indication for surgery because of the unpredictable outcome. The Medical Assessor determined that the proposed surgery was not reasonable and necessary in the circumstances.
In a report of 15 February 2018 from Dr McKechnie to Dr Sivarajah he said:
“I have discussed the MRI findings and treatment options. I have offered her a right C5/6 foraminotomy. I have cautioned her however that this type of surgery is mainly to relieve radicular shoulder and arm pain and she will still likely experience residual neck pain. Moreover, any surgery for the L3/4 level has similar results with a good chance relieving radicular leg pain but not chronic lower back pain.”
On 2 September 2019, Dr McKechnie requested approval for an intersegmental L3/4 laminectomy and rhizolysis. Dr McKechnie however, did not report any clinical signs that satisfy the diagnosis of radiculopathy in the lower limbs in particular, sensory or motor loss related to the L4 nerve root, which is the nerve root that would have been the target of the recommended L3/4 laminectomy.
Dr Herald provided a report to Dr Hussain on 18 June 2019. On examination of the right shoulder he reported that the claimant had pain with forward flexion to about 120 degrees, external rotation to 20 degrees, internal rotation to buttock and grade 4 power of the supraspinatus muscle and grade 5 power of the rotator cuff muscles. Dr Herald also said that the claimant had a positive O’Brien’s test indicating biceps tendinitis.
It is notable that the right shoulder range of movement reported by Dr Coroneos on 4 September 2019, 2½ months later, was significantly better and near normal. During assessment by the Medical Assessor, the range of movement was found to be unreliable with suggestion of voluntary guarding.
Dr Coroneos for the insurer in his report of 4 September 2019 said:
“All of the changes on spinal imaging are all of pre-existing cervical and lumbar spondylosis and prior surgery at L4/5 and none of the changes on imaging are caused by the subject motor vehicle accident which occurred on 13 October 2017.
I believe that Ms Salah may have experienced a cervical and lumbar soft tissue strain caused by the subject accident or a medical exacerbation to cervical and lumbar spondylosis caused by subject motor vehicle accident of 13 October 2017 and having regard to the history given by Ms Salah, review of file, conduct of clinical musculoskeletal and neurological examinations and review of imaging as listed along with provision of radiologist’s reports, I believe that the neurological effects of the cervical and lumbar soft tissue strain would have gradually improved and resolve over a period of four to six weeks post MVA 13 October 2017.
There is no indication for any neurological treatment aside from in the period as defined above that can be neurosurgical effects of the subject motor vehicle accident on 13 October 2017 because there is no evidence of any significant neurological or spinal injury having occurred.
None of the changes on imaging that have been viewed in respect to the spine are caused by the subject motor vehicle accident of 13 October 2017 and all the changes are longstanding and pre-existing to the subject motor vehicle accident including the lumbar spine surgery at L4/5 performed in Alexandria, Egypt.”
The claimant obtained a report of Dr Powell dated 10 December 2019. Dr Powell concluded that the claimant sustained the following injuries:
a.    Musculoligamentous injury to the cervical spine and aggravation of well-established pre-existing multilevel tendon pathology, predominantly involving the C5/6 and C6/7 levels. Dr Powell said that the claimant had been managed conservatively. Her treating specialist, Dr Simon McKechnie, had recommended surgery on the cervical spine prior to this most recent motor vehicle accident though this did not proceed. Clinical examination though was characterised by some mild generalised stiffness and radicular symptoms without definitive features of a radiculopathy.
b.    Musculoligamentous injury of the lumbar spine and aggravation of well-established pre-existing multilevel degenerative pathology. She had decompressive surgery performed at L4/5 in 1980. She had been reviewed by Dr McKechnie prior to the subject motor vehicle accident with degenerative pathology identified at the L3/4 and L5/S1 levels. Management has been conservative with physiotherapy and a series of corticosteroid injections. Her treating specialist has recommended an L3/4 decompression.
c.     She complains of right shoulder symptoms. Investigations revealed evidence of some rotator cuff pathology and subacromial bursitis. Treating specialist, Dr Herald, has recommended surgery in the form of a right shoulder arthroscopy. Examination though was characterised by mild tenderness, restricted range of motion and some cuff weakness.
d.    Dr Powell said that he did not believe there was sufficient evidence to include that her right shoulder condition is the result of injuries sustained in the most recent motor vehicle accident.

Panel medical examination

The claimant was examined by Medical Assessors Rosenthal and Stubbs. Their report follows and is adopted by the Panel.
“Elham Salah was seen by Medical Assessors Rosenthal and Stubbs at the PIC rooms on 10 October 2022. She has fluent English and the interpreter was not required. A large collection of her prior imaging studies was returned to Ms Salah
Ms Salah Is a 69 year old lady who came to Australia as a refugee from the Iraqi invasion of Kuwait in 1989 with her husband and four children. She lived in various Middle Eastern countries and worked as a midwife in Lebanon and completed university studies in Islamic law in Egypt. She thought herself fit and well but she did have a laminectomy at the L4/5 level of the spine in Egypt in 1984. She hurt her back nursing. She considered the operation a success. Since coming to Australia, she has had two further children, twin daughters. Her law degree was not recognised in Australia, so she established a financial consulting firm for the Islamic community. She separated from her husband in 1997 and went on a disability support benefit for low back and neck pain in 2008.
She was involved in a series of motor vehicle accidents on 28 May 1995, 13 October 1997 and in April 2008. In August that year she first attended Dr McKechnie for neck and back pain. A workers compensation and a third-party claim was settled that year.
There was a further motor vehicle accident on 16 March 2013. This was also the subject of a third-party claim and a 2016 Medical AssessorA review panel decision. Ms Salah tells the story of her settlement leaving her with little money after deducting the solicitors costs and repaying Centrelink.
There were ongoing problems of neck and back pain, and the development of pain and stiffness in the left shoulder for which she saw Dr Herald in 2016.
The motor vehicle accident occurred on 13 October 2017. She was stationary waiting to turn onto the Hume Highway in a Toyota Camry when hit from behind by a RAV4. There were no secondary collisions. She was able to get out of the vehicle herself and exchanged details with the other driver before driving home. The vehicle was subsequently repaired.
There were claims for an aggravation of her neck and back problems, and increased level of pain and stiffness about the left shoulder and right shoulder pain. She also reported injuries to her knees. Eventually, MRI studies were performed of both shoulders in 2019. In 2020 she saw Dr Herald again who thought that the right shoulder rotator cuff tear must be due to the motor vehicle accident as she had not complained of right shoulder pain when he had seen her previously in 2016. The Panel put it to Ms Salah that the right shoulder injury was not an initial complaint. It was not on her claim form and subsequent certificates of incapacity. It was not listed by Assessor Cameron in his review. Likewise, the right knee was not listed on the initial certification. Ms Salah stated that it was always amongst her complaints from the very time of the motor vehicle accident. She did not know why it was not recorded in the notes and she would speak with her doctors to obtain confirmation that right shoulder problems were amongst the initial symptomatology. The first reference to the right shoulder the Panel found is for the MRI study of both shoulders 19 months after the motor vehicle accident. She was also very upset that there was no contemporary record of knee injuries. She did not accept the gap in the record and believes the Assessors are wrong. She was also very unhappy about Assessor Woo’s finding that an arthroscopic right shoulder repair was not reasonable and necessary. She said that she felt he was aggressive and biased.
She came to the examination via Uber. She is still able to drive locally but very limited in her housework for assistance with shopping and transport and activities. This is done by her family but that has been the situation since 2009. Ms Salah points out that she is more dependent on them now that she was before. She still manages her own personal care.
She presently takes Diabex for maturity onset diabetes, Crestor for high cholesterol, Pyrinide and immune suppressants used in the treatment of rheumatoid arthritis and Mobic and Panadeine Forte for pain. She is living in a Housing Commission disability unit that she formerly shared with her daughter who has since died. She is relying on her other daughter for assistance. She explained that she had recently joined a private health fund and once the waiting period for pre-existing conditions was up she would have surgery and private hospital treatment for the right shoulder.
Ms Salah is 157 centimetres tall in bare feet and 70.6 kg in weight. She uses a walking stick in the right hand to get about. She wears a Velcro lumbar support and a Velcro support on both knees. She undressed herself to her spencer and leggings. She was not able to tip toe or heel and toe walk but she has direct balanced stance. She needed assistance to get on and off the couch.
Cervical spine
She has a normal upright posture but has used up some of her available neck extension to compensate for a moderate age-related thoracic kyphosis. Movements of the cervical spine were more limited in the physical examination than she showed in general during history taking. When questioned about this, she put this down to the fear that examination would hurt. Overall range of movement is symmetrical at one half normal flexion extension and rotation. There is no spasm or guarding but there is general tenderness. The reflexes are brisk and symmetrical and there is no wasting present in the arms and forearms and 5/5 power of grip. There are no complaints of abnormal sensation with elbow flexion-extension, thus a negative brachial stretch: there are no nerve root traction signs in the upper limb and cervical spine.
Lumbar/thoracic spine
She could bend forward so the fingertips were 10 cm above the patella. Side bending is better and the fingertips can reach to the femoral condyle on both sides. Rotation is best movement and two thirds normal but with compartment pain complained of by her. Extension is the worst movement and barely exceeds zero. There was widespread tenderness and no guarding or spasm in the thoraco- lumbar spine. She is able to squat to 90° and rise from a chair without arms. She is uncomfortable lying supine, resist straight leg raising but can extend both knees sitting on the side of the couch. Reflexes are brisk and symmetrical and muscle testing strength recorded of 5/5. There is no dermatomal sensory disturbance in the lower limbs and the sciatic stretch test is negative.
Shoulders
The best-of-three measurements is given in table below. The range was tested by a digital goniometer. The range varied by about 20%. Both shoulders are comfortable folded across the chest.

Right

left

Flexion

90°

70°

Extension

40°

20°

Abduction

70°

70°

Adduction

30°

30°

External rotation

80°

70°

Internal rotation

70°

Zero

Ms Salah is not well muscled. There is no difference in proximal shoulder musculature and deltoid between the two sides. Grip strength is equal. Right equals left at 4/5. Reflexes are brisk and symmetrical. There is no dermatomal pattern of pain most of the tenderness is confirmed to the point of the shoulder in the anterior deltoid region.
Elbow, wrist and finger movements are normal and grip strength 5/5. Girth of the upper limbs is right 31, left 31 and right forearm 26 cm left forearm 25 cm.
Lower limbs:
Ms Salah can rise from an armless chair using a walking stick in the right hand. She cannot tip toe or heel toe walk and has a broad-based stance for balance in slight hind foot valgus right equals left. She has better than 90° of hip and knee flexion sitting on the side of the couch. Straight leg raising causes back pain with a negative traction sign at 50°. Reflexes are brisk and symmetrical. There is a single click noted on standing from a chair but no crepitus or tenderness at either patellofemoral joint. There is general tenderness over the medial joint line of both knees. There is a complaint of intermittent numbness in the left big toe but no other sensory disturbance. Reflexes are brisk and symmetrical. The ankles and toes moved freely. Manual muscle testing is 4/5 right equals left. Girth is right thigh at 46 right calf 34.5 cm, left thigh 45.5 cm, left calf 34 cm.
Imaging studies:
Medical Imaging Bankstown – x-ray left shoulder for March 2019 – normal x-rays . The included images imaging of the thoracic spine shows lots of degeneration in the intervertebral discs, with disc space narrowing and marginal osteophytes. There is no lateral chest x-ray so the degree of kyphosis cannot be measured
Quantum Radiology CT cervical and lumbar spines – 31 October 2017 multilevel degenerative change with particular disc narrowing at L4/5 and L5 S1, marginal osteophytes and generalised degeneration in the cervical spine – no evidence of injury.
Ray Scan Imaging Liverpool MRI cervical and lumbar spine 21 December 2017 – this envelope of scans includes packages which are 3D reconstructions of the CT scan plus image guided cervical spine and lumbar spine epidural injections.
MRI cervical spine showed moderately increased extension multilevel age-related degenerative changes . The cervical lordosis is normal, there is an adequate spinal canal without compression of the spinal cord and no evidence of cord compression. Oblique views show mild narrowing of foraminal in lower levels. There is prominent lateral disc bulging in the C3/4/5 level, dark discs at all levels.
Lumbar spine showed adequate spinal canal with no evidence of any cord compression or reactive signal in the vertebral end plates. There is prominent disc degeneration at L5/S1 with a marginal retrolisthesis at L5/S1. L4-L5 is very narrow with degenerative end plate changes, no marrow oedema or other signals indicative of any active process. This is the level of the previous laminectomy. Both the CT and the MRI reveal that there is a suggestion of spontaneous fusion posteriorly. The L3/4 level shows a narrow dark disc with senile bulging. There is hypertrophy and sclerosis of the facet joints at all levels, but the foramina are only modestly narrowed. Segmentation sign is negative. This is an expected feature after spinal surgery, degenerative change is exhilarated adjacent to the prior surgery.
Medical Imaging Bankstown CT lumbar spine of 28 May 2015 – retrolisthesis at L5 S1 confirmed. Very limited residual disc space L4/5 and a suggestion of possible fusion posteriorly between L4/5. Adequate canal, changes involve L2 to L5.
Medical Imaging Bankstown of 26 March 2019 ultrasound left shoulder. Biceps tendon moderately thickened with a lot of reaction in the biceps sheath, sub scapularis intact but tatty particularly on the joint side , biceps tendon located , AC joint unremarkable, infraspinatus and teres minor normal inferiorly, labrum normal. Supraspinatus moderately thickened with an old joint sided tear approximately 3 cm from the distal insertion of the supraspinatus with a lot of fibrous reaction in and about bursal with about one quarter of tendon thickness. Tear is delaminating and separating the layers the tendon in two thirds of the tendon. The rotator cuff shows age-related degenerative changes are of an incipient full thickness rotator cuff tear. Bursal bunching noted on attempted abduction with pain.
Ray Scan Imaging MRI right shoulder 3 June 2019 – minor fatty atrophy in supraspinatus, some modest thickening of the acromioclavicular joint. Synovial fluid penetration into the rotator cuff, penetration of joint fluid in the subacromial bursa. Joint sided tear seen on the ultrasound shows joint fluid spreading into the tendon with the delamination confirmed. The extent of fluid penetration is about three quarters of the tendon representing a joint sided degenerative tear. Synovial fluid penetration to the bursa is indicative of a pinhole full thickness tear of degenerative appearance. Fat weighted of supraspinatous muscle shows little fatty degeneration.
Ray scan imaging x-ray left shoulder 23 May 2019 – osteopenia, no fracture. X-rays of shoulder have internal and external rotation views, main impression osteoporosis.
MRI left knee dated 23 May 2019: degenerative changes, increase T2 signal in the body of the meniscus and some extrusion of the medial meniscus. Signal from within the meniscus is degenerative and does not communicate with the joint, meniscus is intact. Typical age-related degeneration and in keeping with chondral changes of the medial femoral condyle and indicative of mild medial compartment osteoarthritis. ACL intact, PCL intact. Normally located patella with grade 1 articular cartilage change. Knee is in good shape for age, the diagnosis is age-related meniscal extrusion.
1996 package – Images and report heavily water stained and the images here cannot be separated report states that the alignment is normal and there are no abnormalities.
Liverpool Diagnostics 19 January 2006 very underpenetrated plain x-rays of the lumbar spine slight roto-scoliosis concave to the left. Already signs of problems at the lumbosacral junction, with the L4/5 disc height still reasonably well preserved.
South-west Imaging Fairfield, x-ray cervical spine including functional views of 6 September 1995. No evidence of instability
Ultrascan Radiology 9 September 2008 – x-ray lumbar spine over penetrated. L4/5 is very narrow with endplate changes at L5/S1 is already showing some slip on the plain x-rays the lumbar spine and disc space narrowing the upper levels. X-rays of the cervical spine showing some disc space narrowing the upper levels oblique views relatively good preservation of the foramina. Plain x-ray right shoulder unremarkable.
Advanced Imaging Westmead 31 July 2013 CT lumbar and cervical spine. – Generalised age-related cervical spondylosis. Advanced intervertebral disc disease at L4/5 and L5 /S1, marginal retrolisthesis at this level. She is showing cavitation phenomenon and these discs have a worn down appearance and spontaneous partial fusion at L4/5. Endplate changes are not as advanced nor disc narrowing as bad as it seems CT imaging six years later.
MRI lumbar spine Ray Scan imaging October 2013 – package includes CD MRI shows the retrolysis at L5 S1 the large anterior disc bulge and disc degeneration at L4/5 foramina are well spaced. Cord is uncompressed or rather cauda equina is uncompressed but there is a lot of hypertrophy the posterior elements laterally. Spot view of the complete spine shows straight spine with good balance.
Ray Scan Imaging MRI cervical spine 24 October 2013 including CD-ROM – good quality canal with no evidence of compression of the cord or any reactive changes. Lateral disc bulges on the left side in the lower levels generalised disc degeneration and questionable instability at C7 -T1. No acute phase signal changes disc degeneration is generalised there is a moderate angulation at C5/6 to give the spine a little bit of a kink, generally good canal, reactive changes in the facet joints and the large disc prolapse seen on the left side at C5/6.
Medical Imaging Bankstown CT for guided nerve root injections into the cervical spine.
Ray Scan Imaging MRI the lumbar spine dated 21 March 2016 – includes advanced disc changes remain at L4/5 and L5/S1, and all the other discs with dark posterior ligamentous hypertrophy. Generally good canal with no reactive changes on the T2-weighted images. There is a tiny areas of Modic type 1 changes and anterior endplate of L4/5 and posteriorly there is some small scattered Modic type 2 changes.
Conclusions:
Lumbar spine – a disc excision has been performed of the L4/5 level in 1984. 20 years later there is moderate disc degeneration with a still, relatively, good disc height. There are also changes at L4/ 5/S1. These changes are expected. Accelerated disc degeneration is seen at the levels adjacent to a spinal fusion or disc excision. Over the intervening decade the changes become progressively pronounced and now L3/4 also shows signs of adjacent segment degeneration. The images show a mixture of normal spinal ageing and accelerated change at the adjacent segments as expected when there has been a disc excision or spinal fusion. There is no evidence of any acute injury to the spine. Ageing spines become painful and stiff.
There is no benefit in surgery at the L3/4 level. There is no particular reason why L3/4 should be a major cause of the back pain. Most probably all the lower lumbar spine segments contribute to the pain and stiffness. In any case surgery at L3/4 will accelerate adjacent segment degeneration at L2/3. Spinal surgery is effective at relieving compressed lumbar nerve roots but there is no radiculopathy found in the clinical examination. Spinal surgery may also be valuable in stabilising unstable segments of the lumbar spine. The L5/S1 level shows the gradual development of the degenerative retrolisthesis but this is still very minor and there are no flexion and extension views show that the retro lysis changes with movement, that is no confirmation of instability at this level.
Cervical spine – age-related degeneration is seen here as well but is less advanced as there has been no prior spinal surgery. There is no evidence of any acute injury. In general, the cervical spine showed less advanced disc degeneration than the lumbar spine. There is no reason to consider that there has been any injury to the cervical spine.
Shoulders – there is an ultrasound of the left shoulder in 2016. The clinical notes of the GP and the referral to Dr Herald show this is symptomatic. There is considerable degeneration in the rotator cuff and there are still limitations of internal rotation to the diagnosis of frozen shoulder made at the time which is reasonable, but this is a prior injury to the motor vehicle accident under consideration.
There is an MRI of the right shoulder 19 months after the motor vehicle accident. There is development of what is probably pinhole full thickness tear of the supraspinatous, there is certainly a joint sided tear with the delamination. These are all degenerative features. The probabilities are that further imaging studies, an MRI of the left shoulder and an ultrasound of the right shoulder will show the same sort of changes already documented by each technique in the already imaged shoulders. In short MRI the left shoulder would probably look very like the recent MRI the right shoulder.
There is a long gap in the record between the 2017 motor vehicle accident and the MRI of the right shoulder. Ms Salah disputes this. However, if there were a traumatic component to what is essentially a degenerative tendon failure, the clinical effects would be immediate. The Panel take the same view as Assessor Woo. There is no causal effect from the motor vehicle accident. The prospects of surgical repair are doubtful – Ms Salah’s right rotator cuff tear is degenerative and there is no surgical technique that reverses degeneration. At best Ms Salah would simply be a lady with a degenerative right rotator cuff that now has sutures in it.
Left knee:
It is the experience of the Panel that knee injuries are very uncommon in low-speed rear impact motor vehicle accidents. The MRI does not show a traumatic pattern tear but rather extrusion of the medial meniscus as a structural fibres and peripheral attachments weaken with normal ageing. Meniscal extrusion is one of the causal mechanisms of osteoarthritis of the knee. Surgical treatment by meniscal resection accelerates the process.
Findings:
Assessor Woo found that neither the L3/4 laminectomy or the proposed shoulder arthroscopic rotator cuff repair related to injuries caused by the accident. The Panel determines that the proposed surgery for each is not reasonable and necessary. The Panel adds the extra observation that the proposed surgery will probably make both conditions worse.”

Causation

In Kinchela v Insurance Australia Group Ltd t/as NRMedical Assessor Insurance[1] Justice Walton set aside the decision of a Medical Review Panel. The discussion in Kinchela concerning the correct principles to apply relating to causation are set out below:
"[38] The second defendant's task was not to answer the question of whether there was any contemporaneous evidence, or corroborative evidence, to support an injury to the right 2nd toe, but whether the accident contributed to the right 2nd toe infection, avulsion of the nail and ultimate right 2nd toe amputation. By focussing only on whether there was a contemporaneous record of complaint in the clinical notes or the ambulance notes, the actual question it was required to consider was overlooked – did the motor vehicle accident materially contribute to the right 2nd toe amputation?
[39] The second defendant fell, therefore, into the type of error identified in Owen v Motor Accidents Authority of NSW (2012) 61 MVR 245; [2012] NSWSC 650 at [51]- [52]; Bugat v Fox (2014) 67 MVR 150; [2014] NSWSC 888 (‘Bugat’); AAI Ltd t/as GIO v McGiffen (2016) 77 MVR 348; [2016] NSWCA 229 (‘McGiffen’). The error identified is in treating the absence of a contemporaneous complaint or report of injury as determinative of the issue of causation.”
[1] [2021] NSWSC 804, Kinchela.
In Bugat, Hulme AJ held that the lack of contemporaneous evidence cannot be determinative of causation. His Honour stated at [31]-[32]:
“[31] One of the pivotal questions for the Panel was whether the injuries of which the plaintiff complained had been caused (or materially contributed to) by the motor accident she alleged. To that question the presence or absence of contemporaneous evidence of injury was relevant but not determinative in circumstances where there was other evidence, in particular the plaintiff's claim form made but 15 days later, the remarks of Dr Hor in his report of 13 July 2011, and the plaintiff's statements which the certificate discloses were made to the Panel to the effect that at the time of the accident she suffered 'pain in her neck going out to both shoulders.
[32] While I accept that, as an administrative decision-maker, the Panel's reasons should not be subjected to 'minute and detailed textual criticism in the hope of finding something on which to base an argument' [Allianz Australia Insurance Ltd v Motor Accidents Authority (NSW)(2006) 47 MVR 46, [2006] NSWSC 1096 at [36]] in expressing themselves the way they have, the Panel have clearly shown that they have regarded what they perceived as the absence of contemporaneous evidence as determinative on the issue of causation. In doing so they erred, the error being one apparent on the face of the record.”
In McGiffen, the Court of Appeal held at [64]-[65]:
“[64] The question that the review panel was required to address was not simply whether there was any contemporaneous evidence of complaint about an injury to the lumbar thoracic spine. It included whether Mr McGiffen's lumbar thoracic spinal injury was causally related to the 'gait derangement', itself caused by the accident. That is, was the accident a contributing cause of a lumbar thoracic spinal injury by reason of the gait derangement caused by the accident.
[65] In deciding causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury to the thoracic spine the review panel only partially addressed the question posed by s 58(1)(d). For that reason, the decision recorded in the Panel's Certificate must be treated as a purported and not real exercise of its statutory function under s 58(1)(d), leaving that function unexercised, and the Authority and the Panel liable to the relief granted by the primary judge for jurisdictional error.”
It was held that the second defendant failed to apply the correct test of causation as set out in the relevant Guidelines informed by s 5D of the Civil Liability Act 2002 (the CLA) and the common law. As result, the second defendant failed to apply the appropriate legal test in order to discharge its jurisdictional function.
As Justice Walton observed in Kinchela the CLA is relevant. In s 3B various liability is excluded from the Act; however, sub-s (2) provides that "Divisions 1-4 and 8 of Part 1A (Negligence)" apply to motor accidents. Sections 5D and 5E relating to causation are in Division 3 of the CLA. Therefore, they apply to the Motor Accident Injuries Act 2017. The common law principles, as discussed in the above authorities, apply.

The Motor Accident Guidelines (the Guidelines)

The Guidelines identify the test for causation in cls 6.6 and 6.7.[2]
[2] Causation is defined in the Glossary at page 316 of the AMA 4 Guides.
In Ackling v QBE Insurance (Aust) Ltd,[3] Johnson J indicated that the task of a review panel in assessing whether an injury was caused by the relevant accident is "a practical one". His Honour also observed that a review panel will derive practical assistance from the Guidelines when undertaking the task of assessing causation.[4]
[3] [2009] 75 NSWLR 482; [2009] NSWSC 881.
[4] At [87]. Justice Johnson was then referring to the predecessors to clauses 6.5-6.7 of the Motor Accident Guidelines, being clauses 1.7-1.9 of the Permanent Impairment Guidelines.
In Owen v Motor Accidents Authority (NSW),[5] Campbell J adopted Justice Johnson's approach with a caveat touching upon the CLA:
"Given that the task of the Medical Review Panel in determining the causation question is not solely a medical determination within the expertise of the Medical Assessor's constituting the Panel, the position has, with respect, been aptly put by Johnson J in Ackling at p 500 [87] that the Assessors will derive practical assistance from this part of the Permanent Impairment Guidelines. But it is well to emphasise that the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by Civil Liability Act 2002, s 5D. (See s 3B(2))."[6]
[5] [2012] 61 MVR 245; [2012] NSWSC 650.
[6] At [27].

The Civil Liability Act 2002

Justice Campbell in Owen, said s 5D of the CLA needs also to be considered when assessing causation.

86.Section 5D of the CLA provides:
"General principles
(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm ('factual causation'), and
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ('scope of liability')."

There are two elements to address when assessing causation under s 5D(1):
"factual causation";[7] and
"scope of liability".[8]
[7] See s 5D(1)(a) of the CLA - this is the statutory restatement of the “but for” test (see Adeels Palace Pty Ltd v Moubarak [2009] 239 CLR 420; [2009] HCA 48 at [45]) i.e. but for the negligent act or omission, would the harm have occurred?
[8] See s 5D(1)(b) of the CLA. See Adeels Palace at [42]; Wallace v Kam [2013] 250 CLR 375; [2013] HCA 19 at [12].

The Panel must consider whether the accident caused or contributed to the occurrence or worsening of the claimant’s medical condition. The accident does not have to be the sole cause.

Did the injury to the claimant's right shoulder and lumbar spine arise from the accident?

Assessing "factual causation" and "scope of liability" involves making value judgments.[9]
[9] There is a conflict between s 5D and the Guidelines. Section 5D requires the use of the “but for” test and the Guidelines state that while the “but for” test may be useful in some cases, it “is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”^{^[9]}
The insurer says that the claimant did not sustain any injury to her right shoulder and lumbar spine due to the accident. The claimant says that she did report pain to her right shoulder close to the time of the accident however it seems that no practitioner to whom this complaint was made can be identified specifically nor did any practitioner note the complaint.
The claimant obtained a medical certificate annexed to her personal injury claim form from Dr Hatoum. This is dated 16 January 2018, three months post accident. This notes her injuries as a neck injury and back injury only. The claimant says that she reported to all doctors seen by her that she injured her right shoulder in the accident. The Panel does not accept this. One doctor might miss such a complaint but not all treating doctors until a considerable period of time after the accident. It was not until 19 months after the accident that the claimant underwent an MRI scan of the right shoulder. This scan showed degenerative features.
If the claimant had suffered an acute full thickness tear in her right shoulder then she would have felt noticeable pain immediately. It would be expected that she would complain about this immediately and not 19 months later, after the accident, when she first had an MRI investigation of her right shoulder. The Panel is of the finding that if the claimant had suffered injury to her right shoulder as she claims then she would have suffered immediate pain and would have made immediate complaint about this.
The claimant has a long history of pre-accident treatment to her right shoulder as set out in paragraph 23 of these reasons. The Panel is not satisfied that late complaints of right shoulder pain and subsequent investigation thereafter, can reasonably be attributed to the accident, when no acute complaint of pain immediately after the accident was made.
Concerning the claimant’s lumbar spine, the claimant did undergo a disc excision at the L4/5 level in 1984. In the intervening time, degenerative changes are noted on scans with changes also at the L4/5/S1 levels. As the Panel reported in its examination comments, such changes are expected with accelerated disc degeneration being seen at levels adjacent to a spinal fusion or a disc excision. The Panel confirms that the imaging shows a mixture of normal spinal aging and accelerated change at the adjacent segments where treatment has previously occurred, as expected.
Based on the mechanism of the injury, it is not unreasonable to accept that the claimant would have suffered some injury to her cervical and lumbar spines in the accident, albeit temporary and a minor aggravation. The Medical Assessor however, said that the symptoms in her lumbar spine were related to the L4/5 disc level and degenerative changes. The Medical Assessor also said that there was no evidence of nerve root impingement related to the L3/4 level. The Panel agrees with this.
Dr McKechnie did not report any clinical signs of radiculopathy, particularly a sensory loss or motor loss related to the L4 nerve root which, as the Medical Assessor says and with whom the Panel agrees, would have been the target of the recommended L3/4 surgery.
The injury to the lumbar spine was a soft tissue injury that resolved. The radiological changes evidenced on the MRI scan were not caused or aggravated by the accident and thus, the surgery recommended for these changes is not causal. The right shoulder was not initially recorded as an injury. The 2A form submitted in June 2019 did not mention a right shoulder injury. There were no right shoulder symptoms, including pain, reported prior to this. The Panel finds that there was no causal connection between the subsequent rotator cuff tear found on radiology. An acute rotator cuff tear would have been symptomatic if it had not occurred at the time of the accident. The surgery that has been recommended is therefore not causally related to the accident.
The Panel finds that the treatment by way of surgery to the claimant’s right shoulder and an intersegmental L3/4 laminectomy is not as a result of having been caused or contributed to by the accident.

Conclusion

The Panel revokes the certificate of Medical Assessor Woo dated 29 March 2022.
The Panel determines that the injury to the claimant’s right shoulder is not causally related to the accident.
Consequently, the Panel is not of the finding that the right shoulder arthroscopic rotator cuff repair surgery proposed by Dr Herald and intersegmental L3/4 laminectomy recommended by Dr McKechnie is causally related to the accident.
The Panel determines that the right shoulder arthroscopic rotator cuff repair surgery proposed by Dr Herald and intersegmental L3/4 laminectomy recommended by Dr McKechnie are not causally related to the accident and in any event, not reasonable and necessary in the circumstances.

Clause 6.6 provides:
“Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
(a) The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
(b) The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.”
Clause 6.7 provides:
“6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”

Right	left
Flexion	90°	70°
Extension	40°	20°
Abduction	70°	70°
Adduction	30°	30°
External rotation	80°	70°
Internal rotation	70°	Zero

[2023] NSWPICMP 179

4 May 2023