Shales v AAI Limited t/as GIO

[2025] NSWPICMP 316

DETERMINATION OF REVIEW PANEL

CITATION:

Shales v AAI Limited t/as GIO [2025] NSWPICMP 316

CLAIMANT:

Glen Shales

INSURER:

AAI Limited t/as GIO

REVIEW PANEL

MEMBER:

Terence Stern OAM

MEDICAL ASSESSOR:

Margaret Gibson

MEDICAL ASSESSOR:

Sophia Lahz

DATE OF DECISION:

7 May 2025

CATCHWORDS:

MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC) under section 7.26; claimant was injured in a motor vehicle accident; whether the injuries sustained were threshold injuries; dispute as to total whole person impairment (WPI); Review Panel conducted an examination and considered the factors contributing to the injury according to clause 6.6 of the Motor Accidents Guidelines; Held – MAC revoked and new certificate issued; Review Panel determined that the cervical spine and lumbar spine were threshold injuries; neck injury caused by the accident resulted in 5% WPI.

DETERMINATIONS MADE:  

CERTIFICATE OF DETERMINATION

1.     With respect to Threshold Injury, the Panel revokes the Certificate of Medical Assessor Wan dated 14 July 2024 and substitutes that the following injuries caused by the accident:

·        Cervical Spine

·        Lumbar Spine

were Threshold Injuries for the purpose of the Act.

2.     With respect to WPI, the Panel revokes the Certificate of Assessor Wan dated 14 July 2024 and substitutes the determination that the following injury caused by the accident:

·        Neck injury

resulted in 5% WPI DRE II

STATEMENT OF REASONS

BACKGROUND

1. On 21 November 2018, the claimant, Glen Shales (Mr Shales), walked out of the place where he was living to his car which was parked on the street to either fetch an item or else possibly to drive up the street. He was walking around the back of the car which was positioned in a line of cars when “something” happened and the next thing he knew he was lying on the kerb.

2. Mr Shales said he had no idea how he came to be moved from the road to the kerb. There was “glass everywhere” although there was no damage to his van.

3. He remembers being on the kerb and his son coming and taking him to the Sutherland Hospital where he remained overnight.

4. Mr Shales has brought a claim for common law damages for the injuries he sustained in the motor vehicle accident (the accident) under the Motor Accident Injuries Act 2017 (the MAI Act).

5. AAI Limited trading as GIO (the insurer) is the insurer with liability to pay any damages to Mr Shales under the MAI Act.

6. A medical dispute about the degree of Mr Shales’ whole person impairment (WPI) has arisen. This constitutes a medical assessment matter under Schedule 2, cl 2(a) of the MAI Act.

7. A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor: s 7.20 of the MAI Act.

8. The dispute was referred to the Personal Injury Commission (the Commission) and the Commission assigned it to Medical Assessor Tai-Tak Wan for assessment. Medical Assessor Wan declined to make an assessment under s 7.21(4) in respect of the injury to the left shoulder as it was not yet permanent.

9. In addition, Medical Assessor Wan determined that the head injury was a soft-tissue injury and an assessment of the degree of permanent impairment was not required.

10. Medical Assessor Wan had also determined that the following injuries referred to him were not caused by the accident:

    (a)    Brain injury with post-concussive syndrome;

    (b)    Bilateral wrists – carpal tunnel syndrome.

11. The complete list of injuries that was referred to Medical Assessor Wan was:

    (a)    Brain injury with post-concussive syndrome

    (b)    Both shoulders -- torn tendons

    (c)    Bilateral wrists - carpal tunnel syndrome

    (d)    Cervical spine - soft tissue (injury)

    (e)    Lumbar spine - soft tissue injury

REVIEW PROCEDURE

1. Mr Shales sought a review of the Medical Assessment under s 7.26 of the MAI Act (the Review). The application for referral of a medical assessment to a Review Panel (the Panel) was made by Mr Shales within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought: s 7.26(10) of the MAI Act.

2. 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 which is the subject of the Review was made on or after 1 March 2021, the new review provisions apply.

3. A delegate of the President of the Commission determined there was reasonable cause to suspect that the Medical Assessment was incorrect in a material respect and referred the matter to the Panel.

4. 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 Commission: s 7.26(5A) of the MAI Act. Accordingly, the President’s delegate has convened this Panel to conduct the review of the Medical Assessment.

5. 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: s 41(2) of the PIC Act.

6. The Review of the Medical Assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect. The Review is by way of a new assessment of all matters with which the medical assessment is concerned: s 7.26(6) of the MAI Act. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.

7. 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: Rule 128 of the PIC Rules.

8. On 29 January 2025 during a Medical Review Panel (MRP) meeting, the Panel determined that re-examination of Mr Shales was required. Arrangements were made to have him re-examined by Medical Assessor Lahz on 12 March 2025 at 2.30pm.

THRESHOLD INJURY – STATUTORY PROVISIONS

1. Assent was given to the Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) 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” was known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.

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

3. A threshold injury was defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “psychological or psychiatric injury that was not a recognised psychiatric illness”. Section 1.6(2) of the MAI Act defines a “soft tissue injury” as:

   “[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”

4. 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)”.

5. 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 was a threshold injury for the purposes of the MAI Act. Version 9.2 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 was a threshold injury, the Guidelines relevantly provide:

   “5.3   The assessment will determine whether the injury related to the claim was a soft tissue injury or a threshold psychological 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 was a threshold injury. Diagnostic imaging was 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 was 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.”

6. In Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372, his Honour Justice Wright stated at [35]:

   “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 was 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

   6.5 An assessment of the degree of permanent impairment was 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 was related to the accident in question was 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.

   6.6    Causation was 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 was necessary to verify both of the following:

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

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

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

   6.7    There was no simple common test of causation that was 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 was a contributing cause, which was 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 was not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes’.”

MATERIAL BEFORE THE PANEL

1. In his statement, which was available to the Medical assessors, Mr Shales described the accident as follows:

   [32]     On 21 November 2018 I was residing in rented accommodation at 253 The Kingsway, Caringbah. I lived there on my own, although, my children would both reside with me from time to time.

   [33]     On that date I parked my car on the side of the road on The Kingsway outside the block of units in which I was living.

   [34]     The Kingsway is a six lane main road, having three lanes in each direction. Along the area outside my home unit, it was permissible to park along the curb (sic read kerb) side lane on each side of the road.

   [35]     I parked my car parallel to the curb (sic) along The Kingsway on the northern kerb facing east. My son's car was parked immediately behind my car.

   [36]     At about 10:00pm that night, I walked between my son's car and the rear of my car with the intention of accessing the driver's door of my car.

   [37]     I estimate there was at least 1.5 to 2 metres between the side of my car and the lane line designating the end of the kerb side lane.

   [38]     I had only just started to move around that corner of my car when I was struck hard on my right arm around my elbow and forearm from behind. As a result of being struck I was thrown into the back of my car. I believe I landed on the boot of my vehicle, although, I do not now recall this. I do recall after the incident standing in a bit of a daze on the footpath adjacent to the kerb near where I had been struck.

   [39]     I felt pain around the left side of my head around my ear. I recall looking across and seeing a white Falcon motor vehicle that had pulled up down the road, about 20 metres from my vehicle. Its left passenger side rear-view mirror was smashed off the vehicle. I recall seeing the smashed parts of the mirror on the road directly out from the side of my car inside the kerb lane.

   [40]     The area along the The Kingsway where I was struck, is very well lit with streetlights.

   [41]     Around this time my son, Wade, came out of the home unit and we had a brief conversation. At about the same time the driver got out of the white Falcon, walked back towards me and:

   He said: "I am sorry mate. I am sorry mate. I don't know what happened."

   I said: "What the fuck were you doing mate. Are you drunk?"

   He said: "No."

   I said: "Did you fall asleep?"

   He said: "I don't know."

   [42]     The other driver then said:

   "Would you like me to drive you to the hospital?"

   I said: "No thanks. My son is here. I will get there with him."

   [43]     Shortly after this l was driven to Sutherland Hospital by my son and attended the emergency department at that hospital. I was treated at the emergency department overnight but not released until later the next day.

   [44]     A few days later l became aware that l was required to report the accident to the police and as a result I attended Cronulla Police Station and made a report of the accident. I believe this was on 26 November 2018.

   [45]     After I was released from hospital l went to see my local GP, Dr Phil Loxley, at Sutherland on Saturday, 24 November 2018. At the time I was still sore all over my body from being struck in the accident and mainly concerned about my physical injuries.

ASSESSMENT UNDER REVIEW

1. Medical Assessor Wan examined Mr Shales on 11 July 2024 and issued a certificate under
   s 7.23(1) of the MAI Act on 14 July 2024.

2. Medical Assessor Wan was asked to assess the following injuries:

   (a)    Brain injury with post-concussive syndrome

   (b)    Both shoulders -- torn tendons

   (c)    Bilateral wrists - carpal tunnel syndrome

   (d)    Cervical spine - soft tissue (injury)

   (e)    Lumbar spine - soft tissue injury

3. In his Certificate, Medical Assessor Wan sets out the history at [8]:

   [8]     Mr Shales is 62 years old, unemployed. At the time of the subject MVA, he was 57 years old and on Newstart Allowance. However, Mr Shales stated that he was self-employed doing audio visual set up job, working part-time. When I asked him how many hours per week he worked on average, he said that it was difficult to explain, maybe around 8 hours per week.

   Past Medical History

   Mr Shales told me that he had the following significant past health history:

   ·"Pre-diabetic" but he has to take medication for the diabetes.

   ·Initially, he said that his past health was otherwise good, and denied any other history of accidents and injuries. However, when I presented to him that according to the supporting documentation there was a previous motor vehicle accident (MVA), while he worked in Qantas, he then admitted that around 1995 (he was not certain about the year), he was a driver in a car who hit the side of another car with the front of his car. He said that his memory was not good, he could not remember the details. He could not remember what injuries he had or what treatment he received. He admitted that he still has some residual symptoms from that accident at the time of the subject MVA, but he could not elaborate. He said that the subject MVA aggravated all those injuries.

   ·Initially, he also denied any work-related injuries when he worked at Qantas (as a baggage handler and other positions). When I presented to him that his own statement stated that he suffered a number of injuries while working for Qantas, and sustained multiple injuries including soft tissue injuries to the neck, back, both shoulders, and right knee, he said that he could not recall these injuries and could not give any details.

   ·Around 1999, he had a right knee arthroscopy by Dr Turnbull. However, he could not recall what exactly the surgery was for and denied any injuries (according to his statement, he had a twisting knee injury to his right knee during his employee in 1999 and had an arthroscopy).

   ·He has sleep apnoea and has been seeing a respiratory and sleep physician, Dr Yan, regularly. He was last seen by Dr Yan 6 months ago. He had been using a СРАР machine regularly every night. He believed that his sleep was good.

   ·History of depression and has been seen by a psychologist since 2016, "Dr Cowell".

   ·He denied having other falls before or after the subject accidents.

   He denied any history of allergy to medication.

   Social History

   Mr Shales was born in Sydney, NSW. He received education up to Year 10 equivalent at the time. He did not take any certificate examination. He said that his academic performance in school was average. When asked about what his best subject in school was, his reply was, "Average everything". When asked about what his worst subject was, he said, "I cannot remember, maybe English". After school, he worked as a chef, "probably as an apprentice", for 3 years. Then, he did other jobs, but again he said, "I could not remember the details what other jobs I have done". When I presented to him that according to his own statement, he worked in Qantas. He then said that he remembered that he worked in Qantas since 1994 as a bag handler for more than 10 years. In 2001 he worked as a cabin cleaner for Qantas. He was then made redundant in 2003.

   He said then he worked as a sport administrator for some years to help manage sport clubs. He said he did that as a part-time job, sometimes only one day a week, on and off for 10 years. He then owned an audio visual set up business in 2017. He said that he obtained a 25 qualification with a certificate in live production from TAFE. He probably also had another certificate from TAFE for audio visual management. He also studied "media production" in TAFE. He said that he finally stopped that job 1½ years ago (that was 2 years after the subject MVA), but he continued to work in his audio visual set up business. He said that he normally got a contract and then asked a subcontractor to do the physical job. He stopped working that business because he was running out of contracts.

   He was divorced, and his ex-wife passed away several years ago. He has 2 adult children. Sometimes his daughter and son come to stay with him. He lives alone in a ground floor unit (with 1 step in front). He is independent in his daily hygiene care and most activities of daily living (ADL). He said that he does the housework himself with no domestic helpers.

   He said he is a non-smoker, non-drinker and denied taking any recreational drugs.

   He drives an automatic car with power-steering.

1. At [9], Medical Assessor Wan sets out the history of the accident:

   [9]     He said that he could not remember the date of the accident but could remember it was November 2018. [According to the supporting documentation, the accident occurred on 21 November 2018.] He said that around 11pm, he walked out of his unit at Kingsway, Caringbah, to his own vehicle, which was parked along the kerb. His son was staying with him on the day, who also parked his car behind Mr Shales' car. He walked between the 2 cars but somehow, he was hit by a passing car and he fell back to his own car. He said that he could not remember the details but according to his own statement, it appeared that his right forearm was hit by the side mirror of another vehicle. There is no loss of consciousness (LOC). Mr Shales insisted that he was walking inside the parking lane, although according to some supporting documentation, the driver also insisted that he was driving within the driving lane. His son heard a big noise and came out to help him. No police or ambulance came to the scene. The son took Mr Shales to Sutherland Hospital. Mr Shales stayed in the Emergency Department (ED) there overnight. He was discharged on the following day. A few days later, he reported the accident to the police station.

   He recalled that the driver of the other car parked the car only a short distance in front of his car after the accident and came to see him at the scene. He said that it was an old male adult. Apparently, he could remember the accident and was conscious all along.

   Apparently, no one else was injured in the subject MVA.

2. At [10], Medical Assessor Wan sets out the history of the symptoms and treatment following the accident

   [10]   Mr Shales told me that after the accident, he had headaches, and pain in the right side of the body, right upper limb, right hip, and the right foot. There was also pain in the upper and lower back. He consulted his GP a few days after the subject MVA (and after discharge from the hospital). He admitted that initially he did not feel the memory problems. However, about 1 -2 weeks later, he started to feel that his memory was not good. He consulted his GP who referred him to see a neurologist, Dr Cordato. Dr Cordato did several investigations, including the brain scan, and a nerve conduction test. He still sees Dr Cordato regularly, and last saw him a month ago. He was told by Dr Cordato that he had traumatic brain injury.

   He could not recall seeing a rehabilitation physician, pain physician or brain injury specialist.

   He was referred to see a neuropsychologist, Dr Jeanette Stewart, around 2019. Later, in 2022, he was referred to see another neuropsychologist, Susan Van den Berg. He could not recall what the neuropsychologists told him. He said that he was also referred to see several specialists, probably for medicolegal reasons from both parties.

   He said that he had numbness in both hands, which might start 2 years after the accident. Dr Cordato did a few tests, including Nerve Conduction Study (NCS) 2021 and 2022, and diagnosed him with carpal tunnel syndrome (CTS). He was referred to a hand surgeon, Dr Nabarro, who did CTS release operation on both hands around 2022 in a private hospital.

   He has been seen by an orthopaedic surgeon, Dr Jang of Concord Hospital. He had a left shoulder operation only 2 months ago for "supraspinatus tendon repair" as he had a lot of pain in the left shoulder. He said that the insurer refused to pay for the surgery.

3. At [11], Medical Assessor Wan sets out the details of relevant injuries/conditions sustained since the accident:

   [11]   Mr Shales told me that he had a subsequent MVA in 2020 (he could not remember the exact month or date). He was a restrained driver in a car hit by another car from behind. The accident was at "some road in Sutherland". He could not give me further details regarding the accident. He said that his head hit something during the accident. It was not clear whether he was admitted to hospital or not. I could not find any useful information regarding this accident, such as discharge summary, ambulance record or police report, from the support documentation.

4. At [12], Medical Assessor Wan sets out the current symptoms of Mr Shales following the accident.

5. At [13], Medical Assessor Wan sets out the current and proposed treatment following the accident.

6. At [14]-[20], Medical Assessor Wan sets out his clinical examination of Mr Shales. He notes general presentation, cervical spine examination, thoracic spine examination, lumbar spine examination, upper extremity examination, lower extremity examination, and comments on consistency:

   [14]   Examination on 11 July 2024, showed that Mr Shales was orientated and alert. He told me that he was 6' tall [183cm] and weighed 116kg (which gave a BMI of 34.6, in the obese range). He walked independently in a normal, symmetrical gait without any walking aids. He could walk on tip toes, on heels, and in a heel-toe (tandem) way. He had no problems in squatting (but he had to hold the examination couch when he squat and got up). He is right-hand dominant.

   Head Injury Assessment

   The claimant dressed properly with a normal affect. There was no conspicuous scar, abnormal mass or deformity found on the head and face. Smell sensation was tested and was normal. There was no gross impairment in vision or hearing. Visual fields tested by confrontation were symmetrical and within normal limits on both sides. There was no nystagmus or diplopia found. There was no tenderness on the face or head, and no motor or sensory impairment found in the head or face. All the cranial nerves appeared intact. There was no difficulty in communication both in expression and comprehension. Mr Shales reported no difficulty in eating, drinking, or swallowing, and taste was normal. There were no cerebellar signs found. Romberg's sign was negative. There were no other significant focal neurological signs found in his body or limbs.

   Mental Status Examination

   The claimant scored 28/30 in Folstein's Mini-Mental State Examination (MMSE). He scored perfect score both in the serial-7 and in the reverse spelling test. He lost 2 points in the short term verbal memory recall test. There was no problem in copying figures, including 3- dimensional cubes. He has no problems in alternative sequences. He drew a clock with numbers and hands reasonably well and quickly. He attempted all the written arithmetic tests, but only got the addition, subtraction, and multiplication correct. He made a mistake in the division (apparently, he was not familiar with doing division and did it in a strange way). When asked to explain in his words some of the common proverbs, he gave reasonable answers quickly. He gave 3 differences between an apple and orange quickly and correctly. However, when asked to give 3 similarities between an apple and an orange, he could only give 2 answers and declined to give a third one. In summary, the mental status screening test did not show any evidence of cognitive impairment. The mild difficulty in short term verbal memory was most likely due to inadequate attention in a stressful situation, inadequate effort or psychological situation. The slight difficulty in calculation (in division) is quite common in people who do not do mental arithmetic regularly. Overall, his performance in the cognitive screening test was largely within normal limits. I would review the neuropsychologist's reports enclosed in the supporting documentation later, as required by the Motor Accident Guidelines (MAG), when I review the documents.

   [15]   Examination of the neck showed diffuse tenderness but no muscle spasm or guarding. There was no evidence of any non-verifiable radicular complaints. There were no motor or sensory impairment in the upper limbs and no evidence of radiculopathy, using the criteria of radiculopathy, as listed in Paragraph 6.138, MAG. Initially, on formal examination there was severe restriction in active movements of the neck in all directions. It was inconsistent with the observations when not in formal examination, such as dressing and undressing. I advised the claimant about the inconsistency, explained that he should use his best effort in the tests, as if there was too much inconsistency, I would not be able to use the measurements for assessment. I then asked him to give his best effort and repeated the measurements, but there was still inconsistency, as follows [all the measurements of the spine were those of active movements. All the active ranges of movement (ROM) were measured using an inclinometer or goniometer]:

Cervical Spine	Flexion	Extension	Rotation to right	Rotation to left	Lateral flexion to right	Lateral flexion to left
ROM found	2/5 normal, 3/5 normal	2/5 normal, 3/5 normal	2/5 normal, 3/5 normal	2/5 normal, 3/5 normal	2/5 normal, 3/5 normal	2/5 normal, 3/5 normal

Although there was some inconsistency, there was no evidence of dysmetria (asymmetrical loss of motion)

[16]   Examination of the upper back showed some diffuse tenderness, but no muscle spasm or guarding. I noted that there was a significant depression with scarring in the middle of the upper back. Mr Shales said that that was due to an old operation that removed a cyst in the skin. There was no evidence of radiculopathy, and no evidence of non-verifiable radicular complaints. Active movements of the thoracic spine were symmetrical and within normal limits:

Thoracic Spine	Flexion	Extension	Rotation to right	Rotation to left	Lateral flexion to right	Lateral flexion to left
ROM found	Normal	Normal	Normal	Normal	Normal	Normal

[17]   Examination of the lower back showed mild diffuse tenderness in the lower lumbar region. There was no evidence of radiculopathy and no evidence of any non-verifiable radicular complaints. Initially on formal examination, there was severe restriction in active movements of the lumbar spine in all directions, which was inconsistent with observations when not in formal examination, such as getting on and off the examination couch and dressing and undressing. Again, I advised the inconsistency to Mr Shales and he did not have any response to that. I asked him to give his best effort and I then repeated the measurements, but there was only mild improvement regarding the consistency:

Lumbar Spine	Flexion	Extension	Rotation to right	Rotation to left	Lateral flexion to right	Lateral flexion to left
ROM found	2/5 normal- 3/5 normal	2/5 normal- 3/5 normal	normal	normal	2/5-4/5 normal	2/5-4/5 normal

Straight leg raising was 85° on both sides. Although there was some inconsistency in the measurements, there was no evidence of any dysmetria found (asymmetrical loss of motion).

[18]   Examination of the upper limbs showed no significant scarring or deformity or gross wasting. Measurement of mid-arm circumferences were equal on both sides. Measurement of mid forearm circumferences showed the right side was 0.5cm larger than the left side, which was within normal limits, given he is right-hand dominant. There was a well-healed surgical scar on the right wrist (3cm long) and similar scar on the left wrist dorsal area (4cm long on the left side), which was consistent with the history of CTS release surgery. Tinel's sign and Phalen's sign was normal on both sides. There was no wasting in the thenar or hypothenar muscle on either hand, no sensory impairment found in either hand. Muscle power was Grade 5/5, both proximally and distally, on both sides. Reflexes were normal on both sides. Examination of the shoulders showed some tenderness over both shoulder areas. I noted that there was some very small scars consistent with keyhole surgery for the left shoulder. On formal examination, there was moderate restriction in active movements in the right shoulder in most directions, and moderate to severe restriction in active movements in the left shoulder in most directions. These were inconsistent with observations when not in formal examination, such as dressing and undressing. Again, I explained the inconsistency to Mr Shales, and again, he did not give any response. I asked him to give his best effort and repeated those measurements. There was not much improvement regarding the inconsistency, and the measurements were as follows:

Shoulder / °	Flexion	Extension	Abduction	Adduction	Internal rotation	External rotation
Right	150, 170,170	20, 50,50	140, 150,155	50, 50,50	80,80.80	80,80.80
Left	90, 100,100	20, 30,35	60, 90,100	20, 30,35	80,80.80	80,80.80

Examination of the elbows showed no deformity, swelling or significant scarring. Active movements of the elbows were symmetrical and within normal limits on both sides. Examination of the wrists showed the scars I mentioned above, relating to the CTS repair on both sides. Active movements of the wrists were symmetrical and within normal limits on both sides. Examination of the hands showed no deformity. Although the claimant mentioned about some numbness in the hands, I could not confirm it neurologically. Active movements of the hands were symmetrical and within normal limits on both sides.

[19]   Examination of the lower limbs showed no gross muscle wasting or significant scarring. Measurement of mid-calf circumferences showed that they were equal on both sides. Measurement of mid-thigh circumferences showed the right side was 0.5 cm larger than the left side, which is within normal limits. Muscle power was normal on both sides, both proximally and distally. There was a mild subjective impaired sensation in both feet, more on the soles. However, it did not follow any dermatomal distribution, but could be consistent with peripheral neuropathy, such as due to diabetes, or due to a psychological situation, with non-organic causes. Examination of the hips showed no deformity or significant scarring. FABER test was normal on both sides. Active movements of the hips were within normal limits and symmetrical on both sides Examination of the knees showed no deformity or swelling. There was no crepitation found on moving the knees. There was no excessive anterior-posterior laxity, or medial-lateral laxity, suggesting the cruciate and collateral ligaments were intact on both sides. McMurray's test was normal on both sides, suggesting the menisci was intact. Active movements of the knees were within normal limits on both sides. Examination of the ankles and feet showed no deformity or swelling. I have already mentioned above the subjective intermittent burning sensation of the feet, and possibly subjective impaired sensation in the sole area. Otherwise, examination of the ankles and feet were symmetrical and within normal limits. Examination of the abdomen and chest were unremarkable.

[20]   I have already mentioned above the inconsistency in the mental status screening, cervical spine movements, lumbar spine movements, and the shoulder movements.

1. At [21], Medical Assessor Wan sets out the documents upon which he relied for his assessment.

2. At [23], Medical Assessor Wan sets out his diagnosis and reasons:

   [23]   Considering all the evidence available, including the history given by the claimant, my physical and mental examination findings, reports of the radiological investigations, treating doctors' reports, medico-legal reports, and other information from the supporting documentation, it was clear that the claimant was a pedestrian hit by the side mirror of a car on his right forearm, and apparently fell onto his parked car. No police or ambulance came to the scene but the son who was staying at the unit of the claimant, took him to the hospital and stayed there overnight. Apparently, there was no loss of consciousness (LOC), no official recorded Glasgow Coma Scale score (GCS) at the scene, no evidence of significant anterograde and retrograde amnesia, and no post-traumatic amnesia (PTA) assessment was assessed. The brain scan was normal. Therefore, although it was possible that there was some soft tissue injury to the head, it was unlikely there was any significant traumatic brain injury (TBI) (at most, very mild TBI, which would have resolved within a few months). The patient's complaint of gradually deteriorating memory loss is not typical of patients with brain injury, even with severe brain injury. He had 2 neuropsychological assessments done but both showed there was performance-related problem and it was unlikely that the claimant had performed with maximum effort, and the outcome of the psychometric tests therefore not reliable. There is no evidence of post concussive syndrome nor Chronic traumatic encephalopathy. However, 1 agree with Dr Yan that severe sleep apnoea and chronic rhinosinusitis with recurrent infective exacerbation, affecting sleep, can be a cause of"... memory loss, mood swings and anxiety...". The claimant also had carpal tunnel syndrome (CTS) of both hands, but apparently the CTS syndrome only appeared approximately 1 year after the subject MVA. Considering the circumstances of the accident, it was highly unlikely that the CTS 1 year after the accident, especially bilaterally, was causally related to the subject MVA, but more likely due to degenerative changes or other causes. Nevertheless, he has had the CTS release surgery on both sides (although not approved by the insurer), and with a good outcome, with no residual muscle wasting in the thenar, no weaknesses or sensory impairment and with no Tinel or Phalen. signs. Movements of the wrists was also normal on both sides, with no residual permanent impairment. I assessed that the CTS was not causally related to the subject MVA. The claimant complained of pain in both shoulders, but he only had MRI scan of shoulder in April 2023, about 4½ years after the subject accident. He has received surgery for the left shoulder only approximately 2 months ago. Considering the circumstances of the accident, it is possible that he has sustained soft tissue injury to the shoulders, although it was unlikely that the subject MVA would cause full thickness tears of supraspinatus, subscapularis and infraspinatus of both shoulders. Nevertheless, the left shoulder is not yet stable because of the recent surgery (it can take up to 2 years for the condition to fully stabilise, even under optimum rehabilitation).

3. At [24], Medical Assessor Wan sets out his discussion of causation and reasons:

   [24]   Head injury - As discussed above, it is possible that there might be soft tissue injury to the head, but there is no evidence of significant traumatic brain injury. Any soft tissue injury should have resolved at this stage. However, the claimant continues to complain of deterioration in his memory, which it is not confirmed with the neuropsychologist's reports, with inconsistent findings which may be due to inadequate effort, psychological condition, functional causes, or even other organic causes such as dementia, severe sleep apnoea and recurrent rhinosinusitis. But the recent memory deterioration is unlikely to be causally related to the subject MVA, as the maximum insult of TBI is at time of subject MVA and is unlikely to further deteriorates after 2 years.

   Shoulders injuries - It is possible that he may have soft tissue injury to the right and left shoulders. However, considering the circumstances of the accident, it is very unlikely that it would cause severe full thickness rotator cuff tendon rupture bilaterally unless the shoulders have had severe pre-existing conditions such as significant degenerative changes. Nevertheless, the left shoulder had just recently undergone surgery (2 months ago), but I do not have details of the surgery (maybe rotator cuff repair?). It is most likely the soft tissue injury to left and right shoulders aggravating pre-existing degeneration, but the supraspinatus tendon tear of the right and left shoulder can be due to subsequent injuries, such as the MVA in 2020, or other injuries later, as Dr lan Cameron in his report of October 2021 reported the active movements of upper limbs were full.

   Bilateral carpal tunnel syndrome (wrist) - There is well documented evidence that Mr Shales had wrist symptoms prior to the subject MVA and was diagnosed to have tenosynovitis. X-ray right forearm of 22/11/2018 showed old fracture of 5th metacarpal, and degenerative changes in the radio-carpal joint. Considering the circumstances of the accident, although it is possible that he has sustained soft tissue injury to the wrists, there is no fracture and any soft tissue injury, and any aggravation of pre-existing condition, is expected to subside within several months. However, the symptoms of CTS apparently were mentioned only one year after the subject MVA. Therefore, I assess the CTS of both sides are not causally related to the subject MVA.

SUBMISSIONS AS TO THRESHOLD INJURY

Claimant’s submissions of 22 August 2024

1. The submissions of Mr Shales of 22 August 2024 (in respect to the threshold injury dispute) follow with respect to paragraph numbers:

   [6]    The medical assessment relates to the Claimant, Glen Shales in respect of injuries arising from a motor accident on 21 November 2018.

   [7]    The claimant describes the accident as occurring when he was walking near his parked car in the northern kerbside lane on the Kingsway at Caringbah when he was struck hard on the right arm around the elbow and forearm from behind causing him to be thrown against the back of his parked vehicle.

   [9]    Those injuries included a number of physical injuries including a traumatic brain injury and injuries in the nature of bilateral tears of the tendons in each shoulder.

   [10]     It is submitted the assessment was incorrect in a material respect. The grounds for that are:- (a) (b) (c) (d) The Medical Assessor erred in finding that the Claimant had not suffered a brain injury as a result of the motor accident in circumstances where the Medical Assessor found that the Claimant "had suffered.... at most, very mild TBI, which would have resolved within a few months". The Medical Assessor erred in finding that the injuries to the Claimant's shoulders were threshold injuries as a result of misconstruing the test of causation. The Medical Assessor erred in finding that the supraspinatus tendon tears in the right and left shoulders were due to subsequent injuries, in circumstances where there was no evidence of the Claimant having suffered any such subsequent injury on which to base such finding and such finding was accordingly against the weight of evidence available to the Medical Assessor. The Medical Assessor erred in failing to provide adequate reasons to explain his findings that the Claimant had not suffered an injury to the brain or tears of the shoulder tendons.

   Ground (a) - The Medical Assessor erred in finding that the Claimant had not suffered a brain injury as a result of the motor accident in circumstances where the Medical Assessor found that the Claimant "had suffered.... at most, very mild TBI, which would have resolved within a few months".

   [11]     The Medical Assessor accepted that the accident could have caused a traumatic brain injury, but that "there is no evidence of significant traumatic brain injury". (see second line under "Head Injury" on page 37 at paragraph 24 of Certificate)

   [12]     This opinion is amplified by the conclusion reached on page 36 of the Certificate where the Medical Assessor states as follows:

   "Therefore, although it was possible that there was some soft tissue injury to the head, it was unlikely there was any significant traumatic brain injury (TBI) (at most, very mild TBI, which would have resolved within a few months)."

   [13]     The test as to whether a brain injury was suffered is not whether it was a significant traumatic injury, but simply whether there was an injury to the brain. The Medical Assessor clearly appears to accept that there was a brain injury by his reference to "at most, very mild TВІ”.

   [14]     A finding of a mild traumatic brain injury speaks for itself. A brain injury is an injury to the brain, however mild. Such a finding would also constitute a finding that the motor accident caused a non-threshold injury.

   [16]     It is beyond doubt that an injury to the brain, however mild, is by definition a threshold injury.

   [17]     The Medical Assessor was required to determine that the claimant either did or did not suffer an injury to the brain. By finding that the injury was at most a very mild TBІ (this is the abbreviation for traumatic brain injury used by the Assessor) the Medical Assessor made a finding of a brain injury and by extension a non-threshold injury.

   Ground (b) - The Medical Assessor erred in finding that the injuries to the Claimant's shoulders were threshold injuries as a result of misconstruing the test of causation.

   [20]     The Medical Assessor found that the claimant had suffered soft tissue injury only to both shoulders.

   [21]     His findings were predicated on the following observation (at page 37 of the certificate in paragraph 24):- "However, considering the circumstances of the accident, it is very unlikely that it would cause severe full thickness rotator cuff tendon rupture bilaterally unless the shoulders have had severe pre-existing conditions such as significant degenerative changes.

   [22]     It is submitted this misconstrues the legal basis on which a finding of injury should be made. If the tear of the tendons results from the injury, then it is irrelevant as to whether the tendons were the subject of degenerative changes.

   [23]     What the Medical Assessor was required to determine was whether the tears were a result of the motor accident.

   [25]     The Medical Assessor had evidence of MRI scans of both shoulders (see page 143 of Application) which would have enabled him to assess any pre-existing changes, and was required to determine on the basis of all of the available evidence whether in light of the existence of any degenerative changes the tears resulted from the motor accident.

   [26]     The Medical Assessor ought to have found on all of the available evidence that the injuries to both shoulders involved tears of the rotator cuff tendons and as a result were not threshold injuries. He ought to have found that even if the tendons were degenerative that the accident had materially contributed to the tears demonstrated on imaging.

   [27]     His reference to the tears being unlikely to have been caused by the accident in the absence of pre-existing degenerative change demonstrates the assessment was incorrect in a material respect.

   Ground (c) - The Medical Assessor erred in finding that the supraspinatus tendon tears in the right and left shoulders were due to subsequent injuries, in circumstances where there was no evidence of the claimant having suffered any such subsequent injury on which to base such finding and such finding was accordingly against the weight of evidence available to the Medical Assessor.

   [28]     Following on from the submissions made in respect of Ground (b), the Medical Assessor appears to make a further finding that the tendon tears of both shoulders "can be due to subsequent injuries, such as the MVA in 2020, or other injuries later, as Dr lan Cameron in his report of October 2021 reported the active movements of upper limbs were full".

   [29]     The inconsistency in this finding is that the accident (MVA) in 2020 occurred prior to the examination of Dr Cameron.

   [30]     Further, there is no evidence of the claimant suffering any significant injury to either shoulder as a result of the 2020 accident and no such evidence is referred to in the Medical Assessment Certificate.

   [31]     The claimant in his statement dated 8 August 2023 indicates (at paragraph 52 at page 6 of the attachments to the Application for Medical Assessment) that he sustained a graze to the right side of his head and subsequently recovered fully from that injury.

   [32]     The claimant's medical records have been made available and the subject of extensive investigations, yet there is no record or history of the claimant having suffered any other injury or accident in which he may have suffered bilaterial tears of his rotator cuff tendons.

   [33]     In the absence of such evidence, the Medical Assessor fell into error by speculating that another injury may have occurred, where he was required to make his findings based on his examination of the claimant, the history obtained at that time and all of the other evidence available to him.

   Ground (d) - The Medical Assessor erred in failing to provide adequate reasons to explain his findings that the Claimant had not suffered an injury to the brain or tears of the shoulder tendons.

   [34]     The matters outlined in support of grounds (a) to (c) not only demonstrate error, but also show a lack of a process of reasoning to give rise to the Medical Assessor's finding that the claimant suffered only threshold injuries in respect of the brain injury and injuries to the right and left shoulders.

   [35]     In respect to the brain injury, the Medical Assessor does not provide reasons why he found there to be a threshold injury whilst at the same time finding there may have been a "very mild TBI".

   [36]     He further fails to explain why if there was no evidence of a significant traumatic brain injury, there may not still have been an injury to the brain.

   [37]     The Medical Assessor also erred by failing to provide a logical process of reasoning as to why the motor accident did not make a material contribution to the tendon tears of the right and left shoulder despite the presence of degenerative changes in the shoulders. There can be no doubt that the tears could result from the accident even if already degenerate.

   [38]     The Medical Assessor also erred by failing to provide a logical process of reasoning as to why the tendon tears of the right and left shoulder "can be due" to subsequent injuries.

   [39]     The reasons also fail the test of being adequate in that they do not point to any evidence in the history or records that would be consistent with the tears occurring as a result of subsequent injuries.

Insurer’s reply submissions of 11 September 2024

1. The reply submissions of the Insurer of 11 September 2024 (in respect to the threshold injury dispute) follow:

   Ground (b) – misconstruing the test of causation (shoulders)

   [16]     The insurer submits that the Medical Assessor has correctly applied the test of causation, and provided clear reasoning, which revolves around the severity and bilateral nature of the MRI findings of severe full thickness rotator cuff tendon ruptures when compared to the circumstances of the accident.

   [17]     The Medical Assessor refers to the circumstances of the accident under paragraph 23 of the certificate, namely that the claimant was hit by the side mirror of a car on the right forearm and apparently fell onto his parked car with neither police nor ambulance attending. The Medical Assessor also noted on page 21 that ‘all the evidence available’ indicated that the accident ‘was relatively minor’.

   [18]     As such, the Medical Assessor reasoned that there would need to be evidence of ‘severe pre-existing conditions such as significant degenerative changes’ for it to be more than ‘very unlikely’ that the subject accident caused or materially contributed to the claimant’s injuries.

   [19]     Regarding evidence of ‘severe pre-existing conditions such as significant degenerative changes’, Medical Assessor Wan noted at paragraph 23 of the certificate that although the claimant had complained of pain in both shoulders, he had only had an MRI scan in April 2023, about four and a half years after the subject accident, and only had left shoulder surgery around two months before the medical assessment.

   [20]     Noting the considerable time between the accident and the bilateral shoulder MRI, the insurer fails to comprehend the claimant’s submission at paragraph 15 that the Assessor should have used the April 2023 bilateral shoulder MRI to assess any pre-existing degenerative changes, particularly in the absence of any pre-accident or other shoulder radiology.

   [21]     Given that it was not accurate or possible for the Medical Assessor to use the 2023 MRI to determine whether there were severe pre-accident degenerative changes, the Medical Assessor turned to the other evidence, namely the clinical finding by Dr Cameron that there was full upper limb active movement in both shoulders.

   [22]     Notably, Dr Cameron’s examination and report was almost two and a half years before the MRI findings, and presumably it would be hard to achieve full range of movement in both shoulders at the same time as the existence of severe full thickness tendon tears.

   [23]     Therefore, the insurer submits that the Medical Assessor correctly applied the test of causation, and that there has been no material error.

   Ground (c) – failure to engage with the relevant material, incorrect test of causation

   [26]     The claimant has submitted that the Medical Assessor has fallen into error by speculating that a subsequent injury, such as from the 2020 MVA, may have caused the bilateral rotator cuff tears, despite there being no evidence that the 2020 MVA caused significant injury to either shoulder.

   [27]     The insurer submits that the claimant has misunderstood the correct test of causation. That test, outlined in these submissions under ‘ground (a)’, only requires the assessor to establish whether the subject accident caused, or materially contributed to the injuries. The assessor was not required to establish that the injuries were caused by something other than the subject accident.

   Ground (d) - failure to provide adequate reasoning

   [36]     The insurer submits that the reasoning provided by Medical Assessor Wan satisfies the common law authorities referred to above governing the standard of reasoning required to be given in this context.

   [37]     The claimant has submitted that the assessor did not provide reasons as to why the head injury was found to be a threshold injury whilst at the same time finding that there may have been a ‘very mild TBI’.

   [40]     The insurer refers to its submissions above under grounds (b) and (c), namely that assessor clearly reasoned that the accident was of a minor nature, and as such was ‘very unlikely’ to have caused the claimant’s injuries as there was no evidence of severe pre-existing degenerative conditions, noting that there was no pre-accident radiology, only the MRI taken almost four and a half years after the accident.

RE-EXAMINATION BY THE REVIEW PANEL

Medical Assessor Lahz assessed Mr Shales on 12 March 2025. Her findings are set out as follows:

1. Mr Shales was aged 63 and right-handed.

2. He lived on his own in a ground floor flat at Caringbah with three bedrooms, one bathroom and a small balcony. He told Medical Assessor Lahz that he divorced 26 years ago and had two children, a son and daughter in their mid-20s. It was mentioned that shortly after the 2018 motor accident, his former wife was diagnosed with terminal cancer and died six months later.

3. He informed Medical Assessor Lahz he would at times be unable to answer questions due to lack of memory. He said he was dealing with a traumatic brain injury caused by the subject 2018 motor accident. Medical Assessor Lahz asked him to provide history/answers to questions to the best of his ability and he agreed to do so.

4. Mr Shales was not working and had been receiving the Disability Support Pension (DSP) for at least a few years. He thought he had last worked a few years ago in audiovisual crewing, which involved troubleshooting sound system problems during live performances. He said he tried to resume work after the accident although he had to hire others to do his usual duties because his memory was poor and he could also no longer think quickly on his feet, which was a requirement of the job so that audiences did not become aware of any sound system glitches. He said too that restricted shoulders made it difficult for him to keep working.

5. Medical Assessor Lahz asked Mr Shales about the history of aches and pains predating the accident, which had included the neck, lower back, right knee, right wrist and shoulder, all of which were documented in the GP (Loxley) records in various years 2006, 2015 etc. He said he could not remember anything about physical symptoms over the years. If the doctor had recorded same in the records, then he could not argue with it. Medical Assessor Lahz let him know that reliance would have to be placed on the content of the medical records unless he were able to provide more information.

6. With prompting, Mr Shales agreed there had been some claims (neck, back) made whilst he had been working as a Qantas baggage handler although he could not provide specific information. Medical Assessor Lahz asked him about the history of low back pain necessitating CT scans of the lumbar spine (2015) although he could shed no light on this.

7. He had no recollection of any shoulder problems before the accident.

8. He agreed there had been long-standing obstructive sleep apnoea. He was currently using his second CPAP machine which he used regularly. He said he had not always been consistent with his use of the machine although he was seeing the very doctor who "invented" the CPAP.

9. He had been overweight for many years although with Ozempic in conjunction with dietary measures, he reported to have lost significant weight.

10. When asked about his medications, Mr Shales said he was taking a "long list" which he could not readily remember although he eventually volunteered that he was taking in addition to weekly Ozempic, Jardumet, Aspirin 1/2 tablet, Pristiq and possibly Crestor. On specific enquiry, he said he was not taking any painkillers, besides maybe "once per year" because he generally disliked taking pills.

11. He had not smoked since either 2007 or else 2008.

12. Mr Shales consumed alcohol very rarely.

13. He had difficulty recalling his vocational history. He mentioned there had been many jobs over the years. He completed year 10 (having been an average student enjoying music and technical drawing). He started but did not complete a chef's apprenticeship. He then worked variously in signage erection, sports administration and "odd jobs in the snow". He studied sound production at TAFE. Latterly, he had an audiovisual troubleshooting business.

14. Mr Shales said that before the 2018 motor accident he had been physically fit, able to work in his AV business and capable of completing domestic chores and shopping. He had been living sometimes on his own although his son, who was then only in his late teens would "come and go".

15. He claimed injuries in the accident of the head/brain, both shoulders, carpal tunnel syndrome, neck and lower back. In either 2021 or 2022 he underwent surgery for decompression of both carpal tunnels and in 2024 surgical repair of the left supraspinatus (rotator cuff/shoulder). He reported positive outcomes from all of the surgeries. He believed that the operations were due to injuries caused by the accident.

16. Mr Shales said he had no problems with the head/brain, neck, lower back, carpal tunnels or shoulders before the accident, and his treating doctors had led him to believe, that given there were no preceding symptoms.

17. Medical Assessor Lahz asked Mr Shales about the (second) motor accident which reportedly occurred in 2020. There was a collision in the Harbour tunnel and he said that he bumped his head on the window. He said there was “no more than a knock on the head” without ongoing effects beyond the first four weeks. Medical Assessor Lahz could not readily establish from him as to whether any claim had been made for this accident.

18. He had not been receiving any treatment for the injuries from the accident, for at least 18 months because the insurer rejected all of his treatment requests, about which he felt angry.

19. Medical Assessor Lahz asked Mr Shales about the accident. He said he had walked outside to his car, parked in the street to either fetch an item or else possibly to drive up the street. He had been walking around the back of the car which was positioned in a line of cars, when “something” happened and the next thing he knew, he was lying up on the curb. He said he had no idea how he came to be moved from the road to the curb. He said there was “glass everywhere” although there was no damage to his van and he assumed the glass derived from the at fault vehicle.

20. Mr Shales remembered being on the kerb and his son attending the scene. His son then took him up to the nearby Sutherland Hospital where he remained overnight. Mr Shales couldn’t remember much of what happened in hospital. He did recall complaining about pain in the left side of his head around the ear, and also there was an issue with the right arm which had been bumped in the accident.

1. Medical Assessor Lahz asked Mr Shales about the previous (old) fracture of the right V metacarpal (noted on x-rays taken at hospital) though he had no recollection of this occurring, “maybe” he remarked.

2. He could not remember whether there were scans done in hospital although Medical Assessor Lahz brought to his attention that he did undergo a CT brain (unremarkable) and an x-ray of the right forearm/wrist which did not show any fractures.

3. He was discharged the next day, and his son possibly collected him from hospital although he could not remember.

4. He could not remember when he first saw his doctor, nor exactly how he felt during the first few days of the accident.

5. Medical records indicated that he saw his GP three days post MVA (on 24/11/18). Mr Shales said there was poor recall of those early events due to the “shock” of the accident. Records indicated that on 24 November 2018 he complained of pain in the left-sided neck and arm. There was also low back pain with numbness of the right leg. However, again, he could not shed any light on what he told the GP.

6. He mentioned his belief of suffering a traumatic brain injury although Medical Assessor Lahz did let him know that neither the hospital records nor the GP records indicated any signs of confusion during the immediate/early aftermath of the motor accident. (The absence of altered sensorium would be unusual in the circumstances of suffering a significant traumatic brain injury).

7. Six days post MVA, the GP records indicated that Mr Shales complained of a poor memory. Ongoing, Mr Shales said his memory was “shot” and he was heavily reliant on his mobile phone functions (lists, notes, and alarms) to ensure he took medication, attended appointments, paid bills and regularly rang his mother.

8. Mr Shales could not clearly remember what treatment the GP arranged for him after the motor accident. He said this was due to the fact of: “Mate, I am suffering from a brain injury.” He suggested that within a month of the 2018 motor accident, he had been referred to Dr Cordato, whom he described as an “empathic” neurologist.

9. Records indicated Mr Shales was referred to Dr Cordato on 17 December 2018 and saw him initially during early February 2019. From what Mr Shales could remember, Dr Cordato reassured him that his memory would hopefully return, given enough time e.g. a few months with a “wait and see” approach being adopted. He said too that Dr Cordato had suggested that the problem with his brain was “not visible” and might only be apparent once Mr Shales had died. Mr Shales then remarked “They made a movie about this.” (Medical Assessor Lahz thought he was referring to the post-traumatic condition often in boxers and footballers referred to as chronic traumatic encephalopathy, also known as CTE.)

10. Mr Shales could not remember what tests had been done nor what diagnoses were made though “brain injury” was mentioned. “I had no idea of what they were talking about…” Records indicated that Mr Shales underwent an MRI brain on 18 February 2019 showing no abnormalities. With prompting, he did remember that he had participated in two neuropsychological assessments (to evaluate his thinking and memory abilities) although he could not give any account of the results. Medical Assessor Lahz let him know that the results of the assessments were not consistent with the occurrence of a serious/severe traumatic brain injury.

11. Given there was no specific treatment for his memory disorder, Mr Shales said he had since found different ways to cope with it, mostly by using the various mobile phone functions as an aide memoire.

12. Mr Shales self-managed his life, inclusive of domestic tasks, meals (limited cooking and frequent takeaway), financial matters (managed DSP payments, paid bills regularly), drove a car and visited his children who lived in Wollongong. He said he had a quiet life, often going for a swim at the beach where he chatted to acquaintances who frequented the area, or else he may sometimes have visited the local pool. He said he did not see his children very often and expressed concern that since his former wife’s death, his daughter repeatedly asked him not to die, thereby making her an orphan.

13. Mr Shales reported to have had few friends although he regularly talked to his brother who lived nearby. He did not play any sport, nor participate in any social groups. On specific enquiry, he said that he did not receive any assistance either informal or else commercial with respect to managing his life. He coped with memory lapses by using various mobile phone functions.

14. Mr Shales said he had a car and he drove short distances without incident. He said too that he often rode a pushbike in the local area. He completed chores although he said this was not one of his strengths. There was no yard work to be undertaken at his home and he could complete his own shopping.

15. He did not report any problems with vision, hearing, smell or taste.

16. Neck and back pain had persisted since the accident. Records indicated he underwent MRI of the neck on 7 December 2019 showing degenerative changes. On 18 February 2019 there was an MRI of the lumbar spine also showing degenerative changes.

17. Mr Shales recalled seeing a chiropractor for about six months after the accident, targeting the neck and back, with transient benefits only, until treatment was “cut off.” He did not recall any physiotherapy besides that offered in 2024 (for about 8 weeks) after the left shoulder surgery, discussed further below.

18. Mr Shales continued seeing Dr Cordato from 2019–2023, at which stage the insurer would no longer fund. He said that Dr Cordato referred him to Dr Nabarro, an upper limb surgeon, when he developed severe numbness/pins and needles in his hands. Medical Assessor Lahz asked him how long after the motor accident this occurred although he could not recall. Medical records indicated that he started seeing the hand surgeon (Dr Nabarro) in 2021, three years post motor accident. He did remember undergoing nerve conduction tests which he spontaneously mentioned without Medical Assessor Lahz needing to ask about the latter investigations. As was known, there was a subsequent bilateral carpal tunnel decompression procedure, which resolved the neurological symptoms in the hands, he said by 99%. “My hands feel 100 times better since the operation.”

19. However, after the accident (again exact timing unknown) there were also pins and needles in the feet about which he complained to Dr Cordato several years post injury. The symptoms in the feet persisted, he felt as though he was wearing “two thongs” and he also blamed the 2018 motor accident for these symptomatic complaints. Aside from the fact of symptoms developing after the accident, he could provide no credible mechanism with respect to causation of the abovementioned symptoms.

20. Similarly with the shoulders, he could not recall the exact timing of onset of problems. He said there was really no pain ongoing in the shoulders. What he noticed at the shoulders was a gradual loss of range of motion. He could not remember if the shoulders became symptomatic at the same time or else sequentially, although there was no evidence of early shoulder symptoms. These did not occur until at least several years after the accident.

21. He could not remember when he underwent the shoulder scans although the records indicated no shoulder scans prior to the performance of bilateral MRI scans in April 2023 demonstrating bilateral rotator cuff tears. He underwent left shoulder rotator cuff repair in 2024 from which (as noted) he had recovered well. He said the specialist had recommended similar surgery on the right shoulder too although he was unsure if he could go through with this due to the gross unfairness of the compensation system. He felt the current system had literally “pulled him apart.”

Current Symptoms

1. Mr Shales complained of neck stiffness / soreness mostly at the base with occasional twinges in the trapezial regions R=L. He said that his neck could sometimes “grab” with 10/10 intensity although on average he experienced episodic pain averaging 5–6/10. “I feel like my neck is fused” he commented.

2. He did not complain of any upper limb symptoms (either pain or else numbness) referred from the neck. He reported that it was especially difficult to extend his neck (i.e. look up) although it was also difficult to look down and on this basis he found it hard to enter a small car (preferring to enter/exit his present van). On specific enquiry, he reported normal fine motor skills hands/manual dexterity and strong grip bilaterally. There were no longer any carpal tunnel/neurological symptoms in his fingers.

3. Mr Shales complained of reduced bilateral shoulder motion, worse on the right (where there was also clicking). He experienced no right shoulder pain and only minimal left shoulder pain. He found it difficult to place his hands behind the back, with greater limitation now of the operated left shoulder. However, the left shoulder generally moved better into elevation than the right shoulder.

4. He said that before the 2024 left shoulder operation, he had around 110 degrees of shoulder elevation (visual demonstration) compared with around 150 degrees now.

5. He had difficulties lying on the right shoulder. Since surgery, he was more tolerant of lying on the left side.

6. Regarding the claimed head injury, his memory remained “shot” and he was very reliant on his mobile phone. He said he had to take photos of his car where he had parked it and there had been occasions when he had managed to lose his car. Once he arrived home after being in the city and only then realised that his vehicle was still parked at the railway station.

7. Mr Shales paid his bills using reminders. Medical Assessor Lahz asked him if he used automatic debit to which he said a definite “no.” He was “paranoid” about banks and would never permit an automatic debit. He received a bill, made a note in his phone for when it was due and then paid it. He was on a pension so there was little money he had to manage, although he said he lived within his means. He had a debit card without a credit card and had not run up major debts.

8. As explained above, despite the abovementioned memory problems, he was responsible for the management of his life and had been able to continue living alone without receiving any assistance from others for ADLs due to memory problems. He had a limited social life, and few hobbies although he enjoyed visits to the pool and beach. He kept in touch with his children and his brother. He drove his car safely in the local area. He managed his own finances.

9. As noted also, he said his cognitive issues (memory, problem solving) prevented him from troubleshooting AV (audiovisual) problems. Also the back and shoulder symptoms posed physical barriers to work.

10. He likened his lower back to that of a man aged “1000” years. He pointed to a large area of soreness and tightness extending from the upper buttocks to the thoracolumbar junction. He reported symptom worsening at the lower back with prolonged sitting and standing. There was occasional extension of low back pain to the right lateral thigh. He had numbness in the soles of the feet, which he said was getting worse and worse.

11. He did not report any bowel or bladder disturbance.

12. At the end of the interview, he asked to read Medical Assessor Lahz some notes from his phone which his psychologist had suggested that he write down to ensure Medical Assessor Lahz was fully informed.

13. He was not receiving any treatment for the motor accident injuries since the insurer declined to fund.

14. He sees a psychologist organised by the GP every month.

15. He outlined his concerns regarding the 2018 motor accident as follows:

    “I’ve been seeing doctors for 6-7 years…..Reports have indicated that doctors are not sure if Glen is telling the truth…..which I find offensive…..Doctors also say that I have no restrictions of the hands, shoulders and back….I go to exams and answer the doctors’ questions….My psychologist and solicitor advise me to tell the doctors everything…and I think I do….I’m not one to complain…..All I know, is that in the accident, I dodged death by mm and my life is changed forever….I was diagnosed with a brain problem shortly after the accident….Two months after the accident, I found out my ex-wife had terminal cancer…I had to deal with a TBI…She died six months later….My children are still grieving….I didn’t want to tell my children about the brain injury….my daughter fears that I will die soon and make her an orphan….The insurer has rejected every injury I sustained….I know there is a process to be gone through….though it has made me depressed no end to be told all the time that I am OK. My friends and children roll their eyes when I cannot remember something…I can’t even remember the time my daughter was in hospital…I have to take photos of where I have parked my car due to poor memory…I need my phone to remind me to buy petrol, take medication and ring my mother…I can’t do any online interactions due to poor memory…I forget my pin and then have to attend the bank…which is very stressful…I now have to use e-mail and handwritten letters to ensure I have a record of the communication due to my poor memory…I can’t use the phone because there is then no record of what has occurred…I feel very frustrated….The accident was not my fault….but I am being judged by the system as aggressive and abusive…and also frequently faced with people saying…”surely you remember”…I was diagnosed with shoulder problems needing to be fixed though my request was rejected….I am unsure what to do about the right shoulder…for treatment, it’s too stressful. The system is failing me and I am left to fend for myself…..I fear that due to brain injury, I could become a paraplegic and start dribbling from the corner of my mouth…”.

Examination

1. He was pleasant and cooperative.

2. Medical Assessor Lahz found him a tall strongly built, overweight man with central adiposity. Weight was 110 kg and height 179 cm.

3. He was clean and tidy and very casually attired in shorts, thongs and wearing long strings of beads around his neck.

4. As noted, the history was difficult at times due to his professed lack of recall. On this basis, Medical Assessor Lahz relied on the content of the medical records.

5. Medical Assessor Lahz administered the MoCA (Montreal Cognitive Assessment), noting a score of 22/30. The difficulties were confined to memory, verbal fluency, attention and language/repetition there being no problems with executive function, naming, abstraction and orientation.

6. Gait was unremarkable aside from being somewhat slow.

7. He could tiptoe and walk on heels without support.

8. On examination of the cervical spine, there was normal lordotic posture. There was preserved flexion whereas extension was ½ normal range, associated with pain complaint. There was dysmetria in the flexion/extension (coronal) plane. Lateral flexion and rotation to either side were symmetrical 2/3 normal range. There was no focal tenderness at the neck and no guarding/spasm. Upper limb neural tension tests were negative bilaterally. Upper limb reflexes were present/reduced and symmetrical and there was normal upper limb sensation in all areas. Upper limb strength was normal bilaterally in all muscle groups. There was no measurable wasting of the arms (32cm) 5cm above the elbow crease nor forearms 5cm below the crease 31cm. There were no non-verifiable upper limb radicular complaints.

9. Active shoulder movements were shown in the following table: Movements were measured with a goniometer and repeated three times if there were any restriction to check for consistency.

Right	Left
Flexion	140 130 130	140 140 140
Extension	60	60
Abduction	140 130 140	160 140 140
Adduction	50	50
External rot.	70	70
Internal rot.	80	80

1. With flexion and abduction, he complained of tightness at end of range overlying the shoulder convexities, not due to symptoms referred from the cervical spine.

2. He could place both hands behind his head, with ease.

3. With hands behind back, he could reach the buttock on the left and the thoracolumbar junction on the right. Aside from this, the left shoulder moved in general a little better than the right.

4. Impingement tests were bilaterally negative. There was no focal shoulder tenderness. Rotator cuff strength (abductors and external rotation) was preserved bilaterally. There was no muscle wasting at either shoulder. There were small, numerous port hole scars on the left.

5. There was no pain behaviour.

6. There were normal elbow, wrist and hand movements.

7. There was a large scar overlying the upper thoracic region with contour defect/deformity due he said to removal of a skin lesion.

8. On examination of the lumbar spine, there was flattening of the lordosis. There was no focal tenderness and no guarding/spasm. Flexion and extension were hesitantly performed and 1/2 normal range associated with pain complaint. Lateral flexion was 1/3 normal range to either side, again cautiously performed and rotation to either side 1/2 normal range. There was no dysmetria.

9. SLR was 70 degrees bilaterally limited by hamstrings tightness i.e. negative lower limb neural tension tests.

10. Lower limb reflexes were present, symmetrical but globally reduced.

11. There was no measurable wasting of the thighs 46cm 10 cm above the patella nor calves 35cm at maximal mid-calf girth.

12. There was normal lower limb sensation aside from altered/reduced symmetrical sensation confined to the soles of the feet. (Medical Assessor Lahz noted that NCS did not indicate any findings consistent with peripheral neuropathy, thus the cause of this non-dermatomal sensory, not a non-verifiable radicular complaint was unknown.) Great toe proprioception was normal bilaterally.

13. There was normal lower limb strength in all muscle groups.

14. There were no lower limb non-verifiable radicular complaints.

15. There were normal hip, knee and ankle movements.

Conclusions

1. Based on the contemporaneous documentation, Medical Assessor Lahz accepted there was a soft tissue injury of the right arm/wrist and head (per the acute hospital records) and neck and lower back (per the early GP entries post MVA during November 2018).

2. Medical Assessor Lahz did not accept he suffered a traumatic brain injury, even mild, due to the accident. There were no medically verified abnormalities of either GCS or else PTA contained within the medical records. An MRI brain and CT brain demonstrated no traumatic abnormalities. He did not meet the criteria for TBI set out in MAG in paragraphs 6.4–6.5.

3. From a clinical perspective, the presentation of poor memory (in isolation from other cognitive difficulties) was atypical of traumatic brain injury. Mr Shales led an independent life despite the memory lapses and did not require any assistance. He could remember some events in great detail e.g. events at the scene of the accident, family events soon after the accident, seeing Dr Cordato, having NCS (nerve conduction studies) to investigate the carpal tunnel, whereas he could not remember large swathes of past history incorporating various work injury claims pertaining to the neck and lower back and much of his work history, for example. Cognitive assessment did not indicate any executive dysfunction i.e. disturbance of higher order thinking e.g. planning, problem solving, organisation that would be universally present in a severe traumatic brain injury.

4. There were other causes of poor memory besides traumatic brain injury such as disturbed sleep, chronic stress, low mood and medication. He did suffer too from OSA (obstructive sleep apnoea) which as others had noted may be associated with cognitive impairment.

5. As noted, Mr Shales could provide no information as to the onset of the other symptoms which he claimed were due to the accident such as those at the carpal tunnels and shoulders. Records indicated initial report of carpal tunnel symptoms in 2021 and shoulder symptoms in 2023 when he underwent MRI scans.

1. His main reason for linking the accident to the development of carpal tunnel syndrome was timing. “I did not have the problem before the motor accident.”

2. Similar reasons were given by Mr Shales for the development of shoulder problems which he also ascribed to the accident.

3. However, it is medically not plausible that shoulder symptoms developing five years post-accident and carpal tunnel symptoms coming on three years post-accident could be causally related to the 2018 motor accident. Had there been acute rotator cuff tears at the time of the accident, there would have been immediate reports of pain and restriction, on which the medical records were silent. The mechanism of the accident in which he knocked the right wrist was also not medically credible in terms of causing carpal tunnel syndrome on either side, especially with symptom onset several years after the event.

4. Medical Assessor Lahz was also not of the view that even a soft tissue injury was sustained to either shoulder due to the accident. Whilst lack of contemporaneous evidence was not definitive when it came to injury causation, it was nonetheless very important and it is simply not credible that symptoms developing years after an accident were caused by it, especially when there were no complaints at the time. Further, he could not provide any other reasons aside from timing (i.e. after the accident) linking the subject accident with the shoulder injuries and carpal tunnel symptoms other than by references to his poor memory. He had a poor memory although even persons with a poor memory can inform regarding symptoms occurring in the here and now. Therefore, Medical Assessor Lahz did not accept that reason as being plausible.

DISPUTE AS TO WHOLE PERSON IMPAIRMENT

1. Mr Shales also claims for Whole Person Impairment (WPI) arising from his injuries in the accident.

STATUTORY PROVISIONS

1. Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines 9.2 (the Guidelines).

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

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

   “6.6 Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:

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

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

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

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

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

4. Clause 6.138 of the Guidelines defines radiculopathy as the impairment caused by dysfunction of a spinal nerve root or nerve roots. To conclude that a radiculopathy is present, two or more of the following signs should be found:

   i.loss or asymmetry of reflexes;

   ii.positive sciatic nerve root tension signs;

   iii.muscle atrophy and/or decreased limb circumference;

   iv.muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and

   v.reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.

5. Sections 5D and 5E of the Civil Liability Act2002 (the CL Act) applies to the MAI Act in determining causation. In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13 (Raina) at [65] Campbell J stated:

   “One may accept that a review Panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context, and it is incumbent upon the Panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the CL Act (NSW), ss 5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”

6. The decision in Peet v NRMA Insurance Ltd [2015] NSWSC 558 provides further guidance to the Panel on causation. Peet reviewed a number of Supreme Court decisions including the observations of Justice Campbell in Owen v Motor Accidents Authority of NSW [2012] NSWSC 560 who stated it was “well to emphasise 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 the Civil Liability Act, 2002, s 5D”.

7. Further, in Hunter v Insurance Australia Ltd [2021] NSWSC 623 the Court observed (at [16]) a Panel was obliged to apply the Guidelines which incorporated “common law principles of causation”. Under s 63(3) of the MAC Act and Sch 1, cl 14F (2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission.

8. Wright J in Briggs No. 2 [2022] NSWSC 372 reminds the Panel that the relevant legal test in relation to causation does not require scientific certainty. 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.’

   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].”

9. These observations were made in the context of a review panel of three medical experts unlike the present Panel’s composition following amendments to the MAC and MAI Acts.

10. In respect of any injury or impairment before or after the subject which would justify any negative causation findings, the basis for this needs to be higher than the level of ‘mere speculation’ in the absence of any identifiable evidence. Such speculation must be dismissed as per the principles enunciated in Insurance Australia Limited trading as NRMA Insurance v Brown [2019] NSWSC 1236.

11. In particular, such findings must follow the Guidelines paragraphs 6.31 to 6.34 which set out what must be considered when assessing impairment from conditions before or after the subject accident.

12. Section 41 (2) in Part 5 of the PIC Act enables the Commission to make rules concerning the practice and procedure before the Commission including proceedings before a Panel reviewing a decision of a Merit Reviewer or a Medical Assessor.

13. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made under 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.

SUBMISSIONS ON WHOLE PERSON IMPAIRMENT

Claimant’s submissions of 22 August 2024

1. The reply submissions of the Claimant of 22 August 2024 (in respect to the WPI dispute) follows:

   “Error

   [10]     It is submitted the assessment was incorrect in a material respect. The grounds for that are that the Medical Assessor erred:

   (a)in finding that the claimant's severe full thickness rotator cuff tendon ruptures bilaterally were not caused by the motor accident.

   (b)in failing to provide adequate reasons to explain his findings as to the nature of the injury sustained by the claimant to both shoulders in the motor accident.

   (c)in failing to provide adequate reasons when applying the principle of analogy in assessing the impairment of the claimant's right shoulder.

   Submissions

   Ground (a) - The Medical Assessor erred in in finding that the claimant's severe full thickness rotator cuff tendon ruptures bilaterally were not caused by the motor accident

   [11]     The Medical Assessor found that (at page 36 of the certificate in paragraph 24):

   "However, considering the circumstances of the accident, it is very unlikely that ft would cause severe full thickness rotator cuff tendon rupture bilaterally unless the shoulders have had severe pre-existing conditions such as significant degenerative changes."

   [12]     This appears to amount to a finding that the tendon ruptures did not result from the motor accident, although as articulated in ground 2 it is not entirely clear what the Medical Assessor intended in his reasons.

   [13]     On the assumption this amounts to a finding that the tendon ruptures did not result from the motor vehicle accident, it is submitted this misconstrues the legal basis on which a finding of injury should be made. lf the tear of the tendons results from the injury, then it is irrelevant as to whether the tendons were the subject of pre-existing degenerative changes.

   [15]     The Medical Assessor had evidence of MRI scans of both shoulders (see page 143 of Application) which would have enabled him to assess any pre-existing changes, and was required to determine on the basis of all of the available evidence whether in light of the existence of any degenerative changes the tears resulted from the motor accident.

   [16]     His failure to determine that issue clearly demonstrates the assessment was incorrect in a material respect.

   [17]     The claimant submits that the Medical Assessor should have found that the claimant suffered severe bilateral tears of his rotator cuff as a result of the motor accident.

   [18]     The evidence is clear that he was struck by a motor vehicle travelling at significant speed and thrown against his own motor vehicle. He immediately complained of pain to both shoulders and has consistently complained of symptoms in the shoulders since that time.

   [19]     His evidence is that he was not suffering any symptoms in either shoulder immediately prior to the motor accident (see paragraph 51 of his statement at page 6 of the application).

   [20]     Dr James Bodel at the time of his examination of the Claimant in May 2022 found a significant restriction of movement in both shoulders (see page 4 of his report at page 266 of the application).

   [21]     His treating surgeon, Dr Trantalis took a history that the Claimant had no trouble with his shoulders until the accident.

   [22]     In the absence of any other explanation, and in circumstances where the Claimant's history has been consistently that he has experienced symptoms in both shoulders since the accident, then it is more probable than not that the pathology noted by Dr Trantalis was caused by the accident, or materially contributed to by the accident in the sense of its contribution being more than negligible.

   Ground (b) - The Medical Assessor erred in failing to provide adequate reasons as to the nature of the injury sustained by the claimant to both shoulders in the motor accident

   [23]     This ground flows on from Ground (a).

   [24]     The Medical Assessor provided reasons on this issue as follows:

   (a)"considering the circumstances of the accident, it is possible that he has sustained soft tissue injury to the shoulders, although it was unlikely that the subject MVA would cause full thickness tears of supraspinatus, subscapularis and infraspinatus of both shoulders" - see paragraph 23 on page 36 of Certificate.

   (b)"considering the circumstances of the accident, it is very unlikely that it would cause severe full thickness rotator cuff tendon rupture bilaterally unless the shoulders have had severe pre-existing conditions such as significant degenerative changes" - see paragraph 24 on page 36 of the Certificate.

   (c)"I believe that the shoulder ROM restrictions are most likely due to degenerative changes: see paragraph 30 on page 39 of the Certificate.

   (d)"Left and right shoulder- torn tendons." - heading in permanent impairment table, paragraph 30 on page 39 of the Certificate.

   [25]     It should also be noted that the Medical Assessor in the Medical Certificate issued in M10473447/21 (Threshold Injury) appears to have made a further finding that the tendon tears of both shoulders "can be due to subsequent injuries, such as toe MVA in 2020, or other injuries later, as Dr Ian Cameron in his report of October 2021 reported the active movements of upper limbs were full".

   [26]     It is submitted that the reasons given in this Certificate leaves in doubt what was the nature of injury the Medical Assessor found the claimant to have suffered to his shoulders from the motor accident.

   [27]     He fails to explain the nature of the "soft tissue injuries" that he found it was possible the claimant had suffered.

   [28]     The inadequacy of the reasoning is compounded by the heading to paragraph 30 of the certificate where the Medical Assessor refers to - "Left and right shoulder – torn tendons." It is unclear whether this heading means the Medical Assessor made the assessment of impairment based on injuries in the form of complete ruptures of the tendons despite the earlier comments in this reasons which could be seen as him finding to the contrary.

   [29]     Whilst he states that the shoulder ROM was most likely due to degenerative changes, he fails to make any finding as to the nature or location of those changes, or whether those degenerative changes result from or were made materially worse by the motor vehicle accident. This finding also appears to contradict the finding noted at 1 B(a) above, that the claimant would not have suffered full thickness rotator cuff tendon ruptures bilaterally unless the shoulders had severe pre-existing conditions such as degenerative changes,

   [30]     The observation or finding noted at paragraph 1 B(b) above seems to conflict with the finding noted at paragraph 1 B(c). On the one hand the Medical Assessor says the accident would not have caused the tears “unless there was severe pre-existing conditions such as significant degenerative changes” but at the same time identifies there were degenerative changes.

   [31]     There is no reasoning why on the one hand he found the restriction of movement was due to degenerative changes, whilst on the other hand states that the bilateral tears were unlikely to have been caused by the accident unless there were severe preexisting conditions such as significant degenerative changes.

   [32]     The Medical Assessor was required to make a finding as to the nature of the injury sustained in the motor vehicle accident and to then assess the permanent impairment arising from that injury.

   [33]     It is unclear whether the Medical Assessor intended to find the tears were caused by the accident against a background of the degenerative changes, or not? If not, why not?

   [34]     The reasons given by the Medical Assessor leave it in doubt as to the nature of the injury that he found the Claimant to have suffered and accordingly what injury it was that he was assessing when determining the permanent impairment arising from the injury to the right shoulder.

   Ground (c) - The Medical Assessor erred in failing to provide adequate reasons in applying the principle of analogy in assessing the impairment of the Claimant's right shoulder.

   [35]     The claimant's medical case was that the impairment arising from the right shoulder injury should have been assessed by reference to restriction of movement (see report of Dr Bodel at page 269 of the application).

   [36]     The Medical Assessor found there was "shoulder ROM restrictions" (see paragraph 30 of Certificate at page 39). This is consistent with other medical evidence.

   [37]     At page 40 (fourth paragraph) the Medical Assessor states:

   "Therefore, in the case of Mr Shales, it is inappropriate to use the ROM for WP/ assessment. I will apply the principle of analogy from the experiences of people with similar accidents and considering that the pain is radiating from the neck is similar to the impairment due to joint crepitation .. . "

   [38]     The Medical Assessor's reasons leave it completely unclear as to what he was referring to when indicating the pain "is radiating from the neck".

   [39]     There is no reference throughout the Certificate to either a finding or complaint of pain radiating from the neck to the right shoulder.

   [40]     The claimant is accordingly:

   (a)left in doubt as to what the Medical Assessor intended by these reasons;

   (b)unable to determine how the reference to pain radiating from the neck was relevant to the assessment by analogy, or

   (c)unable to make an assessment as to whether his reasons were sound.

   [41]     This demonstrates error in the face of the Certificate.

   [42]     In addition, the Medical Assessor failed to provide reasons for his use of the acromioclavicular joint, rather than, for example the glenohumeral joint, in circumstances whereby adopting the glenohumeral joint this would have led to a greater level of impairment.

   [43]     It seems unlikely that the restriction of movement caused by a significant rotator cuff tear would be equated to impairment due to joint crepitation, which by its ordinary meaning is a popping, clicking or crackling sound in a joint produced by the rubbing of parts one against the other.

   [44]     The glenohumeral joint is the joint which is stabilised by the rotator cuff and it would be logical to use that joint from the tables to AMA4 rather than the AC joint.

   [45]     No reasons are given to explain adoption of the AC joint rather than the glenohumeral joint in the assessment by analogy,

   [46]     Further, there are no reasons given as to why the Medical Assessor did not adopt an assessment based on restriction of movement having regard to his findings and the findings of other doctors, with some modification if necessary for what he described as being unreliable findings in relation to restriction of movement.

   [47]     On that point the recordings as to the restriction of movement made in respect of the right shoulder are not consistent with any gross exaggeration of restriction of movement, when those measurements are compared to a normal range of motion in the AMA Guides.”

Insurer’s submissions of 11 September 2024

1. The reply submissions of the Insurer of 11 September 2024 (in respect to the WPI dispute) follow:

   [7]    The claimant has alleged that Medical Assessor Wan’s assessment is vitiated by the following errors:

   (a)the PIC Assessor had erred in determining that the claimant’s severe bilateral full thickness rotator cuff tendon ruptures were not caused by the accident;

   (b)the PIC Assessor had erred by failing to provide adequate reasons regarding his findings as to the nature of the bilateral shoulder injuries, and

   (c)the PIC Assessor had erred by failing to provide adequate reasons when applying the principle of analogy in assessing the impairment of the claimant’s right shoulder.

   [8]    The insurer respectfully submits that the above assertions are not errors. They are simply a manifestation of the claimant’s disagreement with the assessor’s clinical findings.

   Ground (a) – erred in determining that the claimant’s severe bilateral full thickness rotator cuff tendon ruptures were not caused by the accident

   [11]     The claimant submits that the assessor misconstrued the test of causation as it is the claimant’s submission that it is irrelevant whether the tendons were the subject of pre-existing degenerative changes if the tendon tears were found to have resulted from the injury.

   [13]     The insurer submits that the Medical Assessor has correctly applied the test of causation, and provided clear reasoning, which revolves around the severity and bilateral nature of the MRI findings of severe full thickness rotator cuff tendon ruptures when compared to the circumstances of the accident.

   [14]     The Medical Assessor refers to the circumstances of the accident under paragraph 23 of the certificate, namely that the claimant was hit by the side mirror of a car on the right forearm and apparently fell onto his parked car with neither police nor ambulance attending. The Medical Assessor also noted on page 21 that ‘all the evidence available’ indicated that the accident ‘was relatively minor’.

   [15]     As such, the Medical Assessor reasoned that there would need to be evidence of ‘severe pre-existing conditions such as significant degenerative changes’ for it to be more than ‘very unlikely’ that the subject accident caused or materially contributed to the claimant’s injuries.

   [16]     Regarding evidence of ‘severe pre-existing conditions such as significant degenerative changes’, Medical Assessor Wan noted at paragraph 23 of the certificate that although the claimant had complained of pain in both shoulders, he had only had an MRI scan in April 2023, about four and a half years after the subject accident, and only had left shoulder surgery around two months before the medical assessment.

   [17]     Noting the considerable time between the accident and the bilateral shoulder MRI, the insurer fails to comprehend the claimant’s submission at paragraph 15 that the Medical Assessor should have used the April 2023 bilateral shoulder MRI to assess any pre-existing degenerative changes, particularly in the absence of any pre-accident or other shoulder radiology.

   [18]     Given that it was not accurate or possible for the Assessor to use the 2023 MRI to determine whether there were severe pre-accident degenerative changes, the Medical Assessor turned to the other evidence, namely the clinical finding by Dr Cameron that there was full upper limb active movement in both shoulders.

   [19]     Notably, Dr Cameron’s examination and report was almost two and a half years before the MRI findings, and presumably it would be hard to achieve full range of movement in both shoulders at the same time as the existence of severe full thickness tendon tears.

   Ground (b) - erred by failing to provide adequate reasons regarding his findings as to the nature of the bilateral shoulder injuries

   [24]     The claimant submits that the assessor failed to explain the nature of the injuries that he found it was possible the claimant’s suffered to his shoulders in the subject accident, namely soft tissue injuries.

   [25]     The insurer submits that the assessor was unable to explain the exact nature of the soft tissues due to the numerous inconsistencies in range of motion noted in the evidence and Medical Assessor Wan’s own examination, the reasons for which the claimant was unable to explain to the assessor upon questioning.

   [26]     The claimant has also submitted that the assessor has not provided reasons as to why he considered the claimant’s shoulder impairment (i.e. the loss of range of motion) was a result of degenerative changes, but at the same time considered the bilateral tears were unlikely to have been caused by the accident unless there were severe pre-existing conditions such as degenerative changes.

   [27]     The only objective evidence of degenerative changes is on the April 2023 MRI which showed, inter alia, that there was a chronic degenerative labral injury in the left shoulder, and minor degenerative labral changes in the right shoulder.

   [28]     The insurer submits that the Medical Assessor’s findings that the restricted range of motion was due to degeneration is a reference to the post-accident degenerative changes found on the April 2023 MRI, noting the Medical Assessor found the tendon tears shown on that scan were not causally related to the subject accident.

   [29]     As the Medical Assessor found the subject accident did not cause the severe bilateral tendon tears due to lack of evidence of pre-accident degenerative changes, the insurer submits the Medical Assessor’s path of reasoning is clear in that the degenerative changes observed on the MRI likely occurred after the subject accident.

   Ground (c) – erred by failing to provide adequate reasons when applying the principle of analogy in assessing the impairment of the claimant’s right shoulder.

   [30]     The insurer submits there is no demonstrable error.

   [31]     The Medical Assessor firstly noted that the ROM method is usually the most appropriate method to assess impairment. However, he noted the significant inconsistencies that he had earlier detailed in his certificate, and he also noted that he considered the ROM restrictions were most likely due to degenerative changes (i.e. not the subject accident). Therefore, applying ss 6.40, 6.41 and 6.50 of the Guidelines, the Medical Assessor appropriately considered that ROM should not be used to assess the claimant’s permanent impairment.

   [32]     In light of the inconsistencies, and having regard to the Guidelines, the insurer submits that it was entirely appropriate for the Medical Assessor to decline to assess the claimant’s shoulders based on range of motion.

   [33]     Having done so, the insurer submits that it was also open to and appropriate for the assessor to nevertheless have provided an assessment of impairment by way of analogy. Clause 6.24 of the Guidelines permits an assessor to make an assessment by analogy to a similar condition where appropriate, and the rationale for the methodology. In doing so, the Medical Assessor noted the following:

   “…I will apply the principle of analogy … and considering that the pain is radiating from the neck is similar to the impairment due to join(sic) crepitation (using Table 19 and 18…) The maximum impairment for the acromiclavicular (AC) joint is 15%. The impairment for ‘mild inconsistencies’ during active range of motion, according to Table 19, is 10% joint impairment. 15% x 10% … Therefore, given the benefit of the doubt to the claimant, assuming that there was no impairment from pre-existing condition that requires apportionment, I assess the right shoulder to be 2% WPI.”

   [34]     Firstly, it is clear that the words ‘mild inconsistencies’ should have read ‘mild: inconstant during active range of motion’, being the words from Table 19.

   [35]     Secondly, the insurer submits that the rationale and methodology is clearly explained by the Medical Assessor and demonstrates no error.

   [36]     In respect to the obligation to provide reasoning, the insurer refers to the submissions at paragraphs 21 and 22 above, which are equally applicable to this ground of review.

   [37]     An application for the referral of a medical assessment to a review panel may only be made on the grounds that the assessment was incorrect in a material respect.

   [38]     It is the insurer’s submission that where there has been no error, then the assessment cannot have been incorrect in a material respect.

   [39]     In any event, the claimant has failed to even attempt to explain how such errors are material.”

SECOND MRP MEETING

1. The Review Panel held a second meeting on 17 March 2025 where it discussed Medical Assessor Lahz’s report and findings. During the meeting, Medical Assessor Lahz spoke to her report.

2. The Panel concluded after discussion that it agreed with all of her findings and made the determination which follows.

CONSIDERATION OF THE SUBMISSIONS

1. The bilateral carpal tunnel syndromes and the rotator cuff tears noted on 2023 MRI scans are unrelated to the motor accident. The 2018 accident by virtue of the timing and the mechanism of the motor accident, could not have caused the carpal tunnel syndromes and rotator cuff tears and moreover did not cause these conditions.

2. Of the injuries Medical Assessor Lahz has accepted, the cervical spine and lumbar spine injuries were threshold injuries. There were no cervical/lumbar fractures and no signs of either cervical or else lumbar radiculopathy. There was no evidence of any neurological injury. The distribution of pins and needles in the lower limbs were not within a specific dermatomal distribution.

3. The head soft tissue injury had long ago resolved.

4. With respect to WPI, the clinical findings at the neck were consistent with DRE II or else 5% WPI (Table 6.7 MAG). At the lumbar spine, the findings were consistent with DRE I giving 0% (Table 6.7 MAG).

5. The bilateral shoulder restriction noted at examination was related to shoulder stiffness, not symptoms referred from the neck. Therefore, the decision in Nguyen is not applicable.

DETERMINATION

1. With respect to Threshold Injury, the Panel revokes the Certificate of Medical Assessor Wan dated 14 July 2024 and substitutes that the following injuries caused by the accident:

   ·        Cervical Spine

   ·        Lumbar Spine

   were Threshold Injuries for the purpose of the Act.

2. In respect of the WPI, the Panel revokes the Certificate of Medical Assessor Wan dated 14 July 2024 and substitutes the determination that the following injuries caused by the accident:

   ·        Neck injury

   resulted in 5% WPI DRE II