Shaooka v Allianz Australia Insurance Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Shaooka v Allianz Australia Insurance Limited [2025] NSWPICMP 11
CLAIMANT:	Kamaran Shaooka
INSURER:	Allianz Australia Insurance Limited
REVIEW PANEL
MEMBER:	Nolan
MEDICAL ASSESSOR:	Yu
MEDICAL ASSESSOR:	Gibson
DATE OF DECISION:	7 January 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017 (MAI Act); classification of injuries under the MAI Act; determination of right shoulder and lumbar spine injuries; claimant involved in rear-end collision; pre-existing right shoulder condition including labral tear and rotator cuff tendinosis exacerbated by the accident; lumbar spine musculoligamentous strain without clinical signs of radiculopathy; MRI and MR arthrogram findings preferred over ultrasound; no evidence of supraspinatus tendon tear, only tendinosis; claimant’s assertion of full pre-accident work capacity contradicted by Centrelink medical certificate and pay records; exacerbation of pre-existing shoulder condition and lumbar spine injury deemed soft tissue injuries; Held – injuries caused by the motor accident are threshold injuries as defined under the MAI Act; Medical Assessor’s findings affirmed.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. The Review Panel affirms the certificate of Medical Assessor Wijetunga of 16 December 2022 that the following injuries caused by the motor accident: (a) right shoulder: aggravation of previous surgically repaired labral tear, and (b) lumbar spine: musculoligamentous strain of the lumbar spine are threshold injuries for the purposes of the Motor Accident Injuries Act 2017 (NSW).

INTRODUCTION

Kamaran Shaooka, the claimant, a front-seat passenger in a vehicle travelling at approximately 80kmph, was involved in a motor vehicle accident on 9 July 2021 (the motor accident). As the vehicle merged left due to slow-moving traffic ahead, a utility vehicle following closely from behind collided into the rear of the claimant's car. The force of the collision lifted the tail end of the claimant’s vehicle. The collision caused the claimant’s body to move forward and backward, although he did not hit any part of the car’s interior or lose consciousness. No airbags were deployed during the accident.
The claimant reported immediate nausea following the collision and described feeling confused and shocked. He managed to exit the vehicle slowly before vomiting and sitting on the ground nearby. He noted pain in his lower back, right shoulder, and the right side of his neck shortly after the incident. Despite the severity of his reported symptoms, no emergency services or police attended the scene, and the claimant’s friend, who had been driving, decided to drive him home in the same vehicle. Upon returning home, the claimant says his pain intensified, prompting his wife to take him to his general practitioner, Dr Sadek, for further medical assessment. Since the accident, the claimant has experienced ongoing pain and functional limitations, which he says have prevented him from returning to his full-time employment as a formworker and carpenter.
The claimant made an application for statutory benefits due to injuries arising out from the motor accident. The insurer, in a decision dated 15 November 2021, declined to pay statutory benefits on the basis that the injuries arising out of the motor accident were determined to be minor injuries. An internal review of this decision dated 31 December 2021 affirmed the insurer’s original decision.
This gave rise to a dispute about whether the injuries caused by the motor accident are threshold injuries for the purposes of the Motor Accident Injuries Act 2017 (the Act). This dispute is a medical assessment matter under the Schedule 2, cl 2(e) of the Act.

MEDICAL ASSESSMENT THE SUBJECT OF THE REVIEW

By certificate and reasons dated 16 December 2022, Medical Assessor Nelukshi Wijetunga, (the Medical Assessor), addressed the classification of injuries sustained by the claimant, in the motor accident, as to whether the injuries to the claimant’s right shoulder and lumbar spine qualified as “minor injuries” (viz. “threshold”) under the Act. The claimant argued that the injuries were more severe, while the insurer maintained they were “threshold” as defined by the Act.
The Medical Assessor recorded that the motor accident involved a rear-end collision during which the claimant was a front-seat passenger. He reported that, as the vehicle was rear-ended, he extended his right arm against the dashboard to brace himself, resulting in immediate pain in his right shoulder, neck, and lower back. The claimant did not require ambulance attendance and was able to drive home. However, he subsequently experienced severe symptoms, prompting him to seek medical treatment.
The claimant presented a complex pre-accident medical history concerning his right shoulder. He had sustained a labral tear in 2013, followed by arthroscopic repair in 2016. Despite a further fall in 2017 that injured his right shoulder and left knee, he reported recovering fully and returning to his work as a formworker. Preceding the motor vehicle accident, however, the claimant had a documented history of right shoulder pain and stiffness. A Centrelink medical certificate dated 17 May 2021, just two months before the accident, recorded a diagnosis of right rotator cuff syndrome and symptoms consistent with prior injuries. The medical records detailed a long-standing history of rotator cuff tendinosis, tendinitis, and other shoulder issues spanning back to 2013.
Following the accident, the claimant underwent various investigations, including imaging studies. An ultrasound conducted on 15 July 2021 identified rotator cuff tendinosis, supraspinatus tears, and infraspinatus tendinosis. Subsequent MRI findings dated 8 August 2021 showed an intact repair of the superior labrum, a paralabral cyst, and subacromial bursitis, with no evidence of new tears. Similarly, an MR arthrogram performed on 28 September 2021 revealed no labral detachment or rotator cuff tears, though it did confirm post-surgical superior labral irregularity.
The Medical Assessor noted the claimant’s consistent reporting of symptoms, including persistent pain in the lower back and right shoulder. The lumbar spine symptoms included pain extending to the buttocks and occasional pain radiating to the back of the thighs, though no paraesthesia was reported. Examination of the lumbar spine revealed tenderness in the midline region and paraspinal muscles but no evidence of muscle spasm or guarding. Neurological testing of the lower limbs was normal, except for a slightly reduced right knee reflex, which could correspond to an L4/5 injury. Importantly, the examination did not demonstrate additional clinical criteria necessary to meet the definition of radiculopathy under the Act.
The assessment of the right shoulder revealed significant tenderness at the rotator cuff insertion points, positive impingement signs, and a restricted range of motion. Despite these findings, the imaging studies did not reveal any tears of tendons, ligaments, menisci, or cartilage. The clinical findings were consistent with an aggravation of the previously repaired labral tear rather than a new structural injury. The Medical Assessor concluded that the mechanism of the accident and the claimant’s symptoms were compatible with a soft tissue injury.
In light of the evidence, the Medical Assessor determined that both injuries were minor under the Act. The right shoulder injury, classified as an aggravation of the surgically repaired labral tear, fell within the definition of a soft tissue injury as it did not involve a complete or partial rupture of any structures. Similarly, the lumbar spine injury was diagnosed as a musculoligamentous strain without evidence of radiculopathy, also meeting the criteria for a minor injury under regulation 4(1) of the Motor Accident Injuries Regulation 2017 (MAI Regulation).
The Medical Assessor acknowledged the claimant’s ongoing symptoms but concluded that the injuries caused by the motor vehicle accident did not exceed the threshold for classification as non-minor injuries.

APPLICATION FOR REVIEW

The claimant applied for a review of the Medical Assessment Certificate (MAC) on the basis that the Medical Assessor’s determination contained a material error. Specifically, the claimant contended that the Medical Assessor incorrectly concluded that “no tear of tendons, ligaments, menisci, or cartilage” was reported in the investigations conducted post-accident. The claimant relied on an ultrasound dated 15 July 2021, which identified supraspinatus tears in the right shoulder. This evidence, the claimant submitted, was inconsistent with the Medical Assessor’s conclusion and directly contradicted her finding of no tears. The claimant asserted that the discrepancy between the ultrasound findings and the Medical Assessor’s determination demonstrated a failure to properly consider all relevant medical evidence, thereby rendering the assessment flawed.
The insurer responded by maintaining that the injuries were correctly classified as minor under the Act. The insurer argued that the MRI conducted on 8 August 2021 and the MR arthrogram performed on 28 September 2021 showed no evidence of rotator cuff tears or other significant damage to the right shoulder. According to the insurer, these imaging modalities were more sophisticated and reliable than the ultrasound, and their findings should be given greater evidentiary weight. The insurer further argued that the claimant’s injuries were soft tissue in nature and, therefore, met the definition of minor injuries under s 1.6(2) of the Act.
The insurer also highlighted the claimant’s significant pre-existing medical history related to his right shoulder. This history included a labral tear surgically repaired in 2016, a fall in 2018 (scil. 2017) resulting in further injury to the shoulder, and ongoing issues with pain and stiffness documented in a Centrelink medical certificate dated 17 May 2021, just two months before the subject accident. The insurer submitted that these factors supported the conclusion that the claimant’s right shoulder issues represented an exacerbation of a pre-existing condition rather than a new injury caused by the motor vehicle accident.
The President’s Delegate considered the claimant’s submissions, the insurer’s response, and the available evidence. The Delegate acknowledged the claimant’s argument that the Medical Assessor’s reliance on the MRI and MR arthrogram findings to the exclusion of the ultrasound may have led to an incorrect conclusion. The Delegate noted that the discrepancy between the ultrasound findings, which identified supraspinatus tears, and the MRI/arthrogram findings, which reported no tears, warranted further examination to ensure consistency and accuracy in the classification of the injuries.
The President’s Delegate found that there was reasonable cause to suspect that the medical assessment contained a material error. In particular, the Delegate determined that the potential oversight in considering the ultrasound findings and the weight given to the MRI and MR arthrogram findings raised questions about whether the injuries were correctly classified as minor.
As a result, the Delegate referred the matter to the Review Panel presently constituted (the Panel) to conduct a review of the medical assessment matter the subject of the dispute.

THE MEDICAL ASSESSMENT MATTER

Threshold injuries

The matters referred by the Personal Injury Commission (the Commission) for assessment as to whether the following injuries claimed to have been caused by the motor accident are “threshold injuries”, as that term is defined by the Act:
(a) lumbar spine injury – L3/4 disc bulge and annular tear, L5/S1 right paracentral disc bulge and encroachment contacting the exiting L5 nerve roots, L4/5 and L5/S1 injuries, and
(b) right shoulder injuries – supraspinatus tears.
Whether an individual’s injuries are classified as threshold or non-threshold under the Act significantly affects entitlement to statutory benefits and damages. Statutory benefits for loss of earnings and treatment expenses cease after 26 weeks if “the person’s only injuries resulting from the motor accident were minor injuries.” Furthermore, a claimant cannot recover damages under the Act if their “only injuries resulting from the motor accident were minor injuries.” The classification of the claimant’s right shoulder injury is therefore critical to determining his ongoing entitlements.
The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented to on 28 November 2022, with various amendments coming into force on 1 April 2023. Following these amendments, the terminology “minor injury” was replaced with “threshold injury,” and “minor injuries” became “threshold injuries.” Crucially, the substantive definition of what constitutes a minor injury remains unchanged and continues to apply to threshold injuries.
Any reference within these reasons to “minor injury” is to be understood as “threshold injury.” Similarly, references to the term “minor” when describing an injury allegedly caused by the motor accident should be interpreted as “threshold.”
A threshold injury is defined under s 1.6 of the Act as including a “soft tissue injury” or “a psychological or psychiatric injury that is not a recognised psychiatric illness.”
Sub-section 1.6(2) of the Act provides that a “soft tissue injury” means:
“[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.”
The Act also allows for regulations to specify which injuries are included or excluded as threshold injuries. Regulation 4 of Part 1 of the MAI Regulation explicitly includes within the definition of threshold injury “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy).”
Part 5 of the Motor Accidents Guidelines (the Guidelines), promulgated under s 10.2 of the Act, provides the procedural framework for determining whether an injury caused by a motor accident qualifies as a threshold injury. Version 9.1 of the Guidelines, effective from 1 April 2023, applies to motor accidents occurring on or after 1 December 2017.
The Guidelines prescribe the following process for determining threshold injuries:
(a)    the assessment must determine whether the injury is a soft tissue injury, or a threshold psychological or psychiatric injury caused by the motor accident.
(b)    Insurers must not require diagnostic imaging solely to determine if an injury qualifies as a threshold injury, as imaging is not considered necessary for this purpose.
(c)    A diagnosis for a threshold injury decision must be based on a clinical assessment by a medical practitioner or suitably qualified person independent of the insurer.
(d)    The assessment must include evidence derived from:
(i)a comprehensive and accurate medical history, including pre-accident conditions;
(i)a review of all relevant records available at the time of the assessment;
(i)a detailed account of the injured person’s symptoms;
(i)a thorough physical and/or psychological examination, and
(i)diagnostic tests provided these correspond with symptoms and findings on examination.
For injuries to the neck and spine, the Guidelines at clauses 5.7-5.9, further address the necessity of assessing radiculopathy:
(a)    determining whether an injury to the neck or spine qualifies as a soft tissue injury requires an assessment of radiculopathy.
(b)    Radiculopathy is defined as dysfunction of a spinal nerve root where two or more clinical signs are present, including:
(i)loss or asymmetry of reflexes;
(i)positive sciatic nerve root tension signs;
(i)muscle atrophy or decreased limb circumference;
(i)anatomically localised muscle weakness, and
(i)reproducible sensory loss aligned with a spinal nerve root distribution;
(c)    if neurological symptoms do not meet these criteria, the injury will be assessed as a threshold injury.
In Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372; 100 MVR 232 at [35], Wright J addressed the issue of causation in determining whether an injury qualifies as a threshold injury. His Honour observed that while causation is not explicitly addressed in Part 5 of the Guidelines, it is dealt with in Part 6, which pertains to assessments of permanent impairment. Wright J concluded that the principles applicable to causation in Part 6 should also apply to determinations of threshold injuries.
Part 6 of the Guidelines defines causation as requiring both a medical determination and a non-medical informed judgment. Specifically, causation requires verifying:
(a) whether the alleged factor could have caused or contributed to the impairment (a medical determination), and
(b) whether the alleged factor did cause or contribute to the impairment (a non-medical determination).
Wright J further explained that causation does not require the motor accident to be the sole cause, provided it was a contributing cause that was more than negligible. This aligns with the broader approach articulated in the Guides and the principles applied in common law.
In AAI Ltd T/as GIO v McGiffen [2016] NSWCA 229; 77 MVR 348, the Court of Appeal stressed that causation requires considering whether the motor accident materially contributed to the injury, even if there were other contributing factors.

REVIEW PROCEDURE

Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
Section 7.26(5A) of the MAI Act provides that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission. Accordingly, the President’s delegate referred the matter to this Panel to assess.
Section 41(2) 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.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. Rule 128 of the PIC Rules provides that a review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.
By directions issued on 13 December 2023, the parties were directed to provide the Panel a joint bundle of material on which they relied upon the review. That direction was complied with. The following is a summary of the relevant material provided.

MATERIAL ON THE REVIEW

The letter from Roger Berbari, physiotherapist, dated 12 November 2013, assessed the claimant for persistent right shoulder pain that he had experienced for three to four years, attributed to his prior occupation as a painter. Clinical examination revealed tenderness over the subacromial space, with active shoulder movements demonstrating full flexion and external rotation, 160-degree abduction, and head-behind-back movement reaching the T12 level. Orthopaedic testing identified a positive supraspinatus test and Hawkins and Kennedy test, indicating supraspinatus muscle involvement and impingement syndrome, while the subscapularis test was negative. The diagnosis was right shoulder impingement. The treatment plan included deep tissue massage, stretches for the supraspinatus and posterior capsule, rotator cuff strengthening exercises, and scapular stabilisation exercises.

The Centrelink Medical Certificate for the claimant, by his general practitioner, Dr Sadek, dated 12 November 2013, certified the claimant’s diagnosis of rotator cuff tendinitis, with the condition being noted as temporary. The onset of the condition is recorded as Friday, 12 October 2012. Symptoms include right shoulder pain, restricted movement, pain worsening with physical activity, and night pain. The prognosis is noted as “good.” The medical certificate certified that the claimant was unfit for work or study from 12 November 2013 to 24 December 2013.
The letter from Dr Kai Lee, dated 13 December 2013, addressed to Dr Sadek, detailed that the claimant, who had been working as a painter in Lebanon for three years, experienced persistent right shoulder pain for two years prior to his relocation to Australia. The claimant reported that the pain had not improved since ceasing work, and he had not received any injections for the condition.
Dr Lee conducted a radiological examination, which revealed no abnormalities on plain
X-ray, though an ultrasound identified mild tendinopathy. A physical examination showed wasting of the infraspinatus muscle, evidence of impingement, and soft tissue swelling in the supraspinatus fossa. Dr Lee diagnosed the claimant with rotator cuff tendinopathy and recommended an MRI scan for further investigation, with a plan to review the findings upon their availability.
The MRI scan report of the claimant's right shoulder, dated 10 January 2014, was conducted at Rayscan Imaging Liverpool to investigate ongoing shoulder pain. The examination, performed on 9 January 2014, utilised sagittal, axial, and coronal imaging at 3T with intravenous gadolinium to facilitate an indirect arthrogram. The acromioclavicular joint was reported as normal, with the presence of a type 2 acromion. The rotator cuff tendons, including the supraspinatus, infraspinatus, and subscapularis, were found to be intact, and the muscle bellies displayed normal signal intensity and definition. The tendon of the long head of the biceps was also intact and in its normal position. However, the scan revealed a focal tear in the anterosuperior glenoid labrum, accompanied by a lobulated degenerative labral cyst extending anteromedially beneath the coracoid process. No effusion was observed in the glenohumeral joint, and no other abnormalities were identified.
A letter from Dr Kai Lee, dated 16 January 2014, addressed to Dr Sadek regarding the claimant, who had presented with right shoulder pain persisting for two years noted that the claimant had previously worked as a painter in Lebanon for three years before moving to Australia. Since ceasing work, the claimant's pain had not improved, and no injections had been administered. A radiological examination revealed no plain X-ray findings, but an ultrasound indicated mild tendinopathy. Physical examination showed wasting of the infraspinatus muscle and evidence of impingement, with soft tissue swelling palpated in the supraspinatus fossa. Dr Lee diagnosed rotator cuff tendinopathy and recommended an MRI scan for further investigation, with plans to review the claimant upon availability of the results.
The letter from Physio Field, dated 25 September 2014, provided a report on the physiotherapy treatment administered to the claimant for right shoulder impingement syndrome due to supraspinatus tendinopathy. Addressed to Dr Sadek, it outlined that the claimant had completed five sessions of physiotherapy designed to alleviate pain, improve mobility, and restore functional capacity. The initial assessment revealed significant limitations, including restricted shoulder abduction to 90-100 degrees with pain rated at
5-6/10, positive supraspinatus (Full/Empty Can) tests, pain and stiffness in the C5-T2 region, and tenderness in the upper trapezius and posterior capsule. Additionally, the claimant exhibited poor posture, characterised by rounded shoulders, which contributed to their condition. The treatment involved education on pain mechanisms and avoidance of aggravating factors, alongside soft tissue release, acupuncture, electrotherapy, and mobilisation of the cervical and thoracic spine and glenohumeral joint. The programme also addressed the claimant’s posture and included a home exercise plan featuring stretches and rotator cuff strengthening exercises, with taping for additional support. By the conclusion of the treatment, the claimant demonstrated significant progress, achieving full active range of motion (AROM) with only mild discomfort (2-3/10) at the end of the range and improved hand-behind-back (HBB) mobility to the L3/L4 level.
An Operation Report detailing a right shoulder arthroscopy performed on the claimant at Fairfield Hospital on 14 April 2016 records that the procedure was carried out by Dr Chandra Dave, a consultant orthopaedic surgeon, with assistance from Dr Mayuran Suthersan. The surgery was elective and aimed to address right shoulder pain caused by an anterior labral tear. The operation utilised posterior and anterior portals to access the shoulder joint, and the labral tear was repaired using two push-lock suture anchors. The operation was described as technically successful, with no additional abnormalities observed during the procedure.
Post-operative instructions included restricting external rotation beyond 30 degrees and forward flexion until 30 degrees. The claimant was advised to wear a sling at all other times and to use analgesia for pain management. A follow-up appointment with Dr Dave was scheduled for two weeks post-operation.
The letter from Anita Fong, a physiotherapist at TRP Physiotherapy, dated 9 May 2016, outlined the claimant’s progress following post-operative physiotherapy sessions after undergoing an anterior labral repair of the right shoulder on 14 April 2016. The assessment noted limited passive range of motion (PROM) in the right shoulder, with external rotation restricted to 20 degrees, flexion to 100 degrees, and abduction to 120 degrees, accompanied by pain. Muscular spasms were also observed in the upper trapezius and rhomboids. The treatment plan focused on gradually increasing PROM within pain limits, with additional recommendations for ice packs and massage to manage pain.
The letter from TRP Physiotherapy, dated 1 June 2016, outlined the claimant’s progress following six physiotherapy sessions under the Medicare Enhanced Primary Care (EPC) scheme, focusing on post-operative rehabilitation after an anterior labral repair on 14 April 2016 for the right shoulder. The assessment revealed limited range of motion (ROM) in the shoulder, with external rotation restricted to 20 degrees, flexion to 100 degrees, and abduction to 120 degrees, accompanied by muscular spasm in the upper trapezius and rhomboids. Treatment included soft tissue massage, heat therapy, scapular and joint mobilisation, assisted and active ROM exercises, stretching, pulsed ultrasound, and strengthening exercises for the upper limb, neck, and back. The claimant demonstrated significant improvement in ROM, now comparable to the unaffected side, with further progress anticipated through an additional five sessions. Recommendations included gradual strengthening within pain limits, regular stretching, and self-massage for muscle release, emphasising the need for continued physiotherapy to achieve full recovery.
The letter from Dr Chandra Dave, dated 17 May 2016, addressed to Dr Sadek, provides an update on the claimant’s condition following a right shoulder arthroscopic labral repair performed at Fairfield Hospital on 14 April 2016. Dr Dave reported that the surgery was technically successful, with the claimant showing significant improvement during the follow-up examination. The claimant was comfortable, displayed no neurovascular deficits, and had nearly full pain-free range of motion in the affected shoulder.
Dr Dave advised the claimant to limit external rotation to 30 degrees and forward extension to 30 degrees to ensure a safe recovery. He recommended slowing down range of motion exercises to prevent potential complications. A further follow-up appointment was scheduled in six weeks to monitor progress or address any concerns.
On 30 June 2017, the claimant presented for medical evaluation following a fall from a ladder, during which his left leg became caught, causing him to land on his right shoulder. Examination revealed abrasions on the right nose and the medial aspect of the right upper arm, as well as tenderness in the right shoulder and posterior ribs. X-rays of the right shoulder and humerus showed no fractures or dislocations, and neurological function in the right upper limb was intact, with no deficits in nerve function or radial pulse. The claimant was diagnosed with bruising of the right shoulder, and no acute fractures were identified. He was prescribed Panadeine Forte and Nurofen for pain relief and issued a medical certificate advising rest until 3 July 2017.
The WorkCover certificate, dated 3 July 2017, recorded details of the claimant’s workplace injury sustained during employment with PKH Group as a painter. The certificate states that the claimant fell from a height while performing work duties, resulting in injuries directly linked to the workplace incident. Dr Sadek, certified that the injury mechanism described by the claimant is consistent with the reported incident. The certification confirmed the absence of any pre-existing conditions relevant to the injury, thereby attributing the injury solely to the workplace accident. The certificate stated that the claimant was temporarily unfit for his pre-injury duties.
By a Centrelink Medical Certificate form dated 17 May 2021, the claimant was certified by Dr Sadek as medically unfit for work or study from 17 May 2021 to 17 July 2021, due to an exacerbation of a pre-existing condition. The claimant was recorded as suffering from right rotator cuff syndrome with a labrum tear, which had previously required arthroscopic surgery in 2016. Despite prior treatment, including surgery, physiotherapy, painkillers, and anti-inflammatory medication, he had recently experienced persistent pain, stiffness, and poor exercise tolerance, which had worsened from 1 May 2021. The prognosis indicated that his impairment would last between three and twelve months. His treatment at the time consisted of ongoing painkillers and anti-inflammatory medication, with no new interventions planned. Dr Sadek confirmed that the claimant was unable to perform any work for eight or more hours per week during the specified period.
The claimant underwent X-ray and ultrasound assessments performed at Wetherill Park Imaging Centre on 15 July 2021, as referred by Dr Sadek.
The X-ray of the lumbar spine indicated that the vertebral alignment appeared normal, with no evidence of fractures or spondylolysis. The disc spaces were preserved, and the apophyseal and sacroiliac joints were noted to be normal. The paravertebral soft tissues were also observed to be unremarkable. The conclusion drawn from the X-ray was that there were no abnormalities identified.
The ultrasound of the right shoulder examined the claimant’s ongoing pain following the motor accident, which was noted against the background of prior shoulder surgery. The long head of the biceps tendon and subscapularis tendon were intact and normally defined. However, the supraspinatus tendon displayed hypoechoic and heterogeneous characteristics, indicating tendinosis. Partial-thickness tears measuring 4x4mm and 2x2mm were identified in the supraspinatus tendon. Similarly, the infraspinatus tendon was found to be hypoechoic and thickened, also indicative of tendinosis. The teres minor tendon was observed to be normal, with no fluid detected near the posterior labrum. The subacromial bursa, AC joint, and coracoacromial ligament were also normal. Dynamic scanning showed no restriction in shoulder movement, with no signs of tendon or bursal bunching.
The ultrasound findings led to the conclusion that the claimant suffered from rotator cuff tendinosis, with partial-thickness supraspinatus tears and infraspinatus tendinosis.
By an Application for Personal Injury Benefits dated 19 July 2021, the claimant described the motor accident as occurring at 6.20am on 9 July 2021 on the Princes Highway in Wollongong. He stated that the vehicle he was travelling in was in the middle lane heading south and had come to a complete stop due to traffic ahead. At that point, the vehicle was rear-ended by another vehicle. He claimed to have sustained injuries to his right shoulder and lower back in a motor accident. The claimant provided his employment details, stating that he was a full-time formworker earning $130,000 per annum. However, he did not supply the contact details of his employer.
The medical certificate, signed by Dr Sadek on 29 July 2021, documented the claimant's injuries following the motor accident, including right shoulder pain and stiffness, chest wall pain, back pain with tenderness, and psychological symptoms described as traumatic shock and pain. These injuries were confirmed to be consistent with the claimant’s account of the motor accident.
Dr Sadek determined that the claimant was unfit for work from the date of the motor accident, 9 July 2021, through to 29 July 2021. The recommended treatment plan included painkillers, anti-inflammatory medications, home exercises, X-rays, physiotherapy, and an orthopaedic review.
In the Certificate of capacity/certificate of fitness provided on 17 August 2021 by Dr Sadek, the doctor diagnosed the claimant’s injury related to the motor accident as a right rotator cuff tear x 2 and tendinosis, back pain and post traumatic symptoms.
The MRI Lumbar Spine report, dated 8 August 2021, revealed several abnormalities in the claimant’s lumbar spine. There was a loss of normal lumbar lordosis, attributed to muscle spasm, with normal disc hydration and no pathological marrow infiltration. At the L3/4 level, a broad-based disc bulge with an annular tear was noted, alongside minor facet joint arthropathy, though without neural compression or foraminal stenosis. At L4/5, a broad-based disc bulge with minor disc osteophytic encroachment was observed, affecting the exit foramina but sparing the central spinal canal. L5-S1 showed a right paracentral disc bulge with disc osteophytic encroachment bilaterally, contacting the exiting L5 nerve roots, with bilateral facet joint arthropathy present. The cauda equina, conus, and paraspinal musculature were unremarkable. The findings concluded mild lumbar spondylitic changes, with structural abnormalities involving disc bulges and facet joint issues.
The report from Dr Vijay Maniam, dated 18 August 2021, assessed the claimant’s injuries following the motor accident, focusing on persistent pain in the right shoulder and lower back. The claimant reported constant pain in the right shoulder, which limited his range of motion. Examination revealed abduction restricted to 90°, flexion to 90°, and extension to 30°, with no external or internal rotation. Neurological evaluation showed no abnormalities in the shoulder, but the pain significantly impaired the claimant’s ability to perform daily activities.
In terms of the lumbar spine, the claimant described pain radiating from the lower back to the posterior thigh. Sensory deficiency was noted in the right L5 nerve root region, with diminished reflexes in the right knee, suggesting neural involvement at the L4/5 level. Imaging results for the lumbar spine highlighted a broad-based disc bulge at L3/4, an annular tear, and further encroachment on the neural foramina at L4/5. At L5/S1, a right paracentral disc bulge was observed, contacting the exiting L5 nerve roots. An MRI of the right shoulder revealed post-surgical changes but no evidence of new tears or detachments.
Dr Maniam recommended further diagnostic interventions, including physiotherapy and ongoing imaging studies, to monitor the claimant’s recovery and manage symptoms. He noted that the injuries significantly impacted the claimant’s ability to perform physical tasks, particularly those requiring shoulder and back movement.
The MR Arthrogram report, dated 28 September 2021, detailed imaging of the claimant’s right shoulder performed at Rayscan Imaging Liverpool. The procedure, conducted under CT fluoroscopic guidance, involved injecting a dilute gadolinium cocktail into the glenohumeral joint to achieve distension. Multiplanar and multisequence imaging was performed and compared with a prior MRI dated 8 August 2021. The clinical history highlighted the claimant's previous labral repair and ongoing shoulder pain.
The imaging findings revealed satisfactory distension of the glenohumeral joint, with preserved relationships. The superior labrum demonstrated irregularity but no evidence of a new detachment. Post-surgical intralabral signal changes were noted, along with a paralabral cyst and surgical hardware in the superior labrum. The rotator cuff tendons showed no full-thickness tears, with the supraspinatus tendon displaying heterogeneity consistent with tendinosis, while the remaining tendons appeared unremarkable. The biceps tendon and labral complex were intact and in normal anatomical positions, and there was no abnormal extravasation of contrast from the joint. The report concluded there was no definitive evidence of labral detachment or rotator cuff tears, with the findings consistent with post-surgical irregularities in the superior labrum.
The letter from Dr Vijay Maniam dated 12 October 2021 addressed the claimant’s medical condition following the motor accident on 9 July 2021. The injuries sustained included a labral tear in the right shoulder and intervertebral disc protrusions at L4/5 and L5/S1, with bilateral L5 nerve root irritation. Dr Maniam noted the claimant’s history of a successful labral repair in 2016, which had enabled him to return to full pre-injury duties as a form worker. However, since the motor accident, the claimant had been unable to resume work.
Following an initial assessment on 6 August 2021, Dr Maniam recommended a comprehensive treatment plan. This included consultations with a general practitioner, physiotherapy, pain medication, orthopaedic follow-ups, platelet-rich plasma (PRP) injections, and domestic care assistance. Despite these interventions, the claimant continued to experience significant pain in the right shoulder.
The Allied Health Recovery Request, dated 17 September 2021, was completed in respect of physiotherapy to be provided by Roger Berbari of R.B. Sports Physiotherapy Clinic in Fairfield for the claimant to address ongoing injuries sustained in the motor accident. The form documented the claimant’s injuries which included cervical spine whiplash, right shoulder pain with a partial supraspinatus tear, and lumbar spine musculoligamentous strain.
The clinical assessment highlighted symptoms of cervical spine pain with associated headaches, right shoulder pain, and lumbar spine pain, which were supported by observed tenderness and reduced range of motion. Specific findings included limited cervical spine flexion and extension, restricted shoulder abduction and external rotation, and impaired lumbar spine movement. There were no pre-existing conditions contributing to the claimant’s current state.
An MR Arthrogram conducted on 28 September 2021 identified post-surgical irregularities in the superior labrum and a paralabral cyst, but no evidence of a new labral detachment or rotator cuff tears. Dr Maniam highlighted that, while the imaging did not reveal structural compromise, the persistent symptoms warranted further investigation to rule out chronic infection. He provided referrals for a bone scan and blood tests to confirm the diagnosis.
A report from Canterbury Bankstown Nuclear Imaging, dated 18 October 2021 of sets out the findings of the whole-body bone scan and SPECT/CT conducted on the claimant to investigate post-operative right shoulder pain and to rule out synovitis or infection following a previous labral repair. The scan results indicated mild periarticular uptake in the claimant’s right glenohumeral and acromioclavicular joints, consistent with mild post-operative changes or capsulitis. No definite evidence of septic arthritis was observed. The report noted that the scan findings were otherwise normal for the claimant’s age and recommended further clinical correlation, including a gallium scan, if infection was considered likely.

SUBMISSIONS

The Panel sought submission from the parties by directions made on 16 October 2023 on the following:
(a) within the material provided by the parties in the Joint Bundle, what material can be identified and relied upon by way of clinical signs of radiculopathy, and
(b) why the Panel should prefer, if at all, the ultrasound image of the shoulder to the MRI of the shoulder.
The claimant submitted that the clinical evidence indicated clear signs consistent with L5 radiculopathy, as documented in the medical report of Dr Vijay Maniam, the treating orthopaedic surgeon, dated 18 August 2021. Dr Maniam’s examination revealed sensory deficiency in the right L5 dermatome, sluggishness in the right knee reflex, and weakness in the right great toe extensor. These findings were submitted as consistent with an L5 nerve injury and sufficient to establish the presence of radiculopathy under the Guidelines. While the claimant acknowledged that the Medical Assessor had found no second positive criterion to confirm radiculopathy, the claimant argued that the Commission had already accepted the application on the basis that there was reasonable cause to suspect a material error in the medical assessment. It was therefore contended that Dr Maniam’s findings should be preferred, given that the potential errors identified in the Medical Assessor medical certificate undermined its reliability. The claimant further emphasised the consistent reporting of lumbar spine pain radiating to the right lower limb to both Dr Maniam and the claimant’s general practitioner, as evidenced in the medical records. These complaints were categorised as non-verifiable radicular symptoms in accordance with Table 8 of the Guidelines, further supporting the diagnosis of radiculopathy.
The claimant argued for the preference of ultrasound imaging over MRI in assessing the right shoulder injury. It was submitted that the ultrasound conducted on 15 July 2021, just six days after the motor accident, was more likely to accurately reflect the claimant’s condition at the time of the incident than the MRI conducted on 8 August 2021, 30 days after the motor accident. The claimant contended that radiological examinations performed closer to the date of injury are inherently more reliable in capturing the immediate impact of trauma. This argument was further supported by a study titled Tendon and Ligament Imaging (Hodgson et al., 2012), which compared the sensitivity and specificity of ultrasound and MRI for detecting partial-thickness tears. The study found that ultrasound demonstrated a sensitivity range of 67% to 84% and a specificity range of 89% to 94% in detecting partial-thickness tears, while MRI exhibited a lower sensitivity of 64% and a comparable specificity of 92%. The data indicated that ultrasound was not only more effective in identifying tears but also had superior diagnostic accuracy when a tear was present. Based on this evidence, the claimant submitted that in the case of any discrepancy between the ultrasound and MRI findings, the ultrasound should be given greater evidentiary weight.
To substantiate the preference for ultrasound, the claimant relied on the practical advantages of this imaging modality. The submissions highlighted the dynamic nature of ultrasound, which allows for real-time imaging and assessment under varying conditions, such as stress or movement, making it particularly effective for evaluating soft tissue injuries. Additionally, the claimant pointed to the literature’s recognition of ultrasound’s adaptability and accuracy in diagnosing conditions shortly after trauma. It was submitted that this made ultrasound a more suitable diagnostic tool than MRI for assessing the claimant’s condition in the immediate aftermath of the motor accident. Furthermore, the claimant argued that the Commission’s prior decision to accept the application on the grounds of a suspected material error in the medical assessment further justified relying on the ultrasound evidence and the clinical findings of Dr Maniam over the MRI results and the conclusions of the Medical Assessor.
The submissions also addressed the broader context of medical evidence reliability, asserting that the Commission’s acceptance of the application reflected an acknowledgment of potential flaws in the MAC. The claimant contended that this acknowledgment should weigh heavily in favour of preferring the evidence of Dr Maniam and the ultrasound imaging, as these were both contemporaneous and consistent with the claimant’s reported symptoms. The claimant maintained that the combination of clinical findings, supported by literature on imaging modalities, demonstrated that the ultrasound findings provided a more accurate and reliable basis for assessing the claimant’s injuries than the MRI conducted weeks later. Accordingly, it was submitted that the ultrasound imaging and Dr Maniam’s clinical observations should form the basis of the Commission’s determination.
The insurer argued that the Medical Assessor’s findings should be determinative in assessing whether the claimant demonstrated clinical signs of radiculopathy. The Medical Assessor reported that the claimant did not describe any clear radicular symptoms during the assessment and that the clinical examination failed to reveal the presence of the two required positive criteria necessary to fulfil the definition of radiculopathy under clause 5.8 of the Guidelines. This absence of clinical evidence, according to the insurer, substantiated that radiculopathy could not be diagnosed.
The insurer submitted that the imaging evidence provided by MRI and MR arthrogram should be preferred over the ultrasound findings relied upon by the claimant. The insurer contended that MRI and MR arthrogram are more sophisticated diagnostic tools, providing greater accuracy and detail than ultrasound. The MRI of the right shoulder conducted on 8 August 2021 reported an intact repair of the superior labrum, the presence of a paralabral cyst, and subacromial bursitis but no evidence of rotator cuff tears or other structural damage. Further, the MR arthrogram performed on 28 September 2021 revealed no definitive labral detachment, only post-surgical superior labral irregularity, and no abnormal extravasation of contrast within the glenohumeral joint. The insurer argued that these findings indicated an absence of tears in tendons, ligaments, menisci, or cartilage and asserted that MRI and MR arthrogram should be considered the superior and more reliable diagnostic modalities.
The insurer also emphasised the relevance of the claimant’s pre-existing medical history, specifically concerning the right shoulder. The insurer relied on a Centrelink Medical Certificate dated 17 May 2021, completed approximately two months prior to the motor accident, which documented a diagnosis of right rotator cuff syndrome and labrum tear requiring surgery. The certificate noted that symptoms of pain and stiffness began on 1 May 2021. The insurer submitted that this pre-existing condition was significant in assessing the extent of injury directly attributable to the motor accident. The insurer argued that the documented pre-existing shoulder condition called into question the causal link between the motor accident and the claimant’s reported symptoms and injuries.
In conclusion, the insurer submitted that the Medical Assessor’s findings provided reliable clinical evidence to conclude the absence of radiculopathy, that MRI and MR arthrogram results should be preferred due to their superior diagnostic value, and that the claimant’s pre-existing condition was highly relevant to the assessment of injury causation and extent.

RECONSIDERATION BY THE PANEL

The Panel determined that a re-examination of the claimant was required.

Re-examination

The Panel, through Medical Assessor Yu, re-examined the claimant on 10 May 2024. He was aged 37 at the time of the re-examination. The re-examination was conducted with the assistance of an Arabic interpreter, Abdullah Khuder, holding NAATI identity number CPN0BD12O.

Occupational history

The claimant provided a detailed account of his occupational background. He described himself as right-handed and stated that he had grown up in Iraq, where he worked as a painter. In 2013, he migrated to Australia and began working in the construction industry. Since his migration, he has consistently worked as a formworker and carpenter. His work involved physically demanding tasks, including heavy manual handling, extensive use of his body for lifting and movement, and regular overtime. He stated that he is a licensed carpenter.
At the time of the accident, the claimant was employed full-time by a company referred to as “Ninua,” which he stated was subcontracted to White Wolf. He explained that the accident occurred while commuting to his workplace in Wollongong, where he was on his third shift at this site. The claimant emphasised that in the months and weeks leading up to the accident, he had been performing all duties without any restrictions or complaints.

Social history

The claimant resides at home with his partner and children. He stated that due to his injuries, he does not provide any hands-on assistance with their self-care needs. His home is a dual-level residence with stairs. He also confirmed that he holds a medically unconditional C-class driver’s licence, permitting him to drive without restrictions.

Past medical history

The claimant explained:
“I had surgery on my right shoulder. Everything was okay with the right shoulder after that. After I had the right shoulder surgery, the surgeon cleared me to go back to work. The surgeon gave me the ‘okay.’ I went back to normal work. I was doing normal work for three or four years full-time before and leading up to the subject accident. I never had any back pain before that accident. I never had any symptoms going down either of my legs before the accident.”
He noted that his general practitioner, both before and after the accident, has been Dr Sadek.
During the re-examination, the Panel presented the claimant with a Centrelink certificate by Dr Sadek, which certified the claimant as unfit for work from May 2021 to July 2021, including the date of the accident. The claimant denied any knowledge of this certification and reiterated that he had been working full-time as a formworker and carpenter during that period.
The claimant further confirmed that he has no known allergies. He also stated that he had never been involved in any vehicular accidents prior to or following the motor accident.

Details of the motor accident

The claimant described the motor accident in detail:
“It was the 9th of July 2021. It was in the morning. I was going from my home to work in Wollongong. My friend was driving, and I was sitting in the front passenger’s seat in a 2006 or 2007 Corolla. We were going straight on a road that curved slightly to my right. It was a sealed road. It was sunny. The road surface was dry. I was wearing a three-point seatbelt. The Corolla did have airbags.”
He elaborated:
“We were in the right-hand lane. There were only two lanes of traffic going in our direction. The left-hand lane finished, and the cars in that lane had to merge into our lane to form a single lane. The car in front of me came to a full stop. Then my car came to a full stop. Then the front of the ute behind my car hit the back of my car on the front passenger’s side. There were no other cars involved in the vehicular collision of the subject accident. The airbags in my car didn’t go off.”
The claimant explained the immediate impact of the collision, stating:
“My body went forward then backward. My body did not hit anything inside my car’s cabin. I didn’t black out. I remember the whole accident. I felt nauseated. After two or three minutes, I slowly got myself out of the car and then vomited. I walked to the side of the road and sat down on the ground. I felt pain in my lower back. I felt pain in my right shoulder and on the right side of my neck.”
He noted that no emergency services were contacted because he felt shocked and confused. Instead, his friend decided to drive him home in the same vehicle. The police did not attend the scene, nor was an ambulance called.
“At home, I felt strong pain in my right shoulder, my lower back, and the right side of my neck,” the claimant stated. “Then my wife took me to my GP, Dr Sadek. Dr Sadek referred me for an X-ray. As a result of the X-ray, he referred me to a specialist in Bankstown. I haven’t worked at all since the accident.”

Treatment history

The claimant described the treatments he had undergone:
“I’ve had medications, creams, and physiotherapy. They took some blood from me, shook it with a machine, and then injected the blood back into my right shoulder. This happened four times. Those injections helped to reduce but not eliminate my right shoulder pain. The right shoulder pain was no longer constant after those injections. That right shoulder pain started to come and go. I paid for those four injections myself.”
He added:
“The doctor advised me to have injections for my lower back. I couldn’t afford the injections for my back. The insurance company would not pay for it. The specialist said that I need surgery for my right shoulder and likely also my lower back, but they wanted to try some injections in the lower back before considering surgery. The last two times when I was supposed to see my specialist in Bankstown, I went to his office but then left before consulting him because I couldn’t pay.”

Current symptoms

The claimant explained:
“The pain in my right shoulder comes and goes. Sometimes, there is no pain. The shoulder sometimes gets swollen. I can’t hold my right arm up for long. Sometimes when I’m holding my mobile phone with my right hand against my right ear to talk, my right arm will fall down to my side by itself from weakness. The right shoulder pain does not spread away from that shoulder. It is localised.”
He added:
“I have low back pain. It gets worse and better, but it’s never gone. Currently, it does not spread to anywhere. The last time that it spread was last night. Last night, the low back pain spread to the back of both of my thighs, not as far as the knees. It has never spread to or further than the knees.”
He confirmed that he has no other symptoms related to the motor accident.

Current treatment

The claimant stated:
“I take Panadol every day. It does improve the right shoulder pain and low back pain a bit. I also take a tablet for sleeping, only when I need it. The last time I used the sleeping tablet was two or three days ago. It was effective. It usually makes me sleepy. I can’t remember the name of the sleeping tablet.”
Discussing physiotherapy, he said:
“I’ve had a lot of physiotherapy. My physiotherapist was doing some massages and teaching me some exercises to do at home. Each session improved but did not eliminate the pain for up to one and a half days. The last session happened about one and a half years ago. I stopped physiotherapy because I didn’t have money to pay for it.”
The claimant further stated, “I see Dr Sadek. My last consultation with a specialist for treatment happened more than a year ago. I couldn’t afford to see the specialist because the insurer refused to pay for it.”

Activities

The claimant reported, “After the motor accident, I never went back to any work of any kind. I haven’t gone back to work because of the pain in my right shoulder and back. My neck is okay now.”

Examination

The claimant presented for examination weighing 76 kilograms and measuring 1.70 metres in height. He was dressed in low-riding jeans and a black hoodie. He arrived at the clinic at 11.00am but was advised by the receptionist to return at 1.00pm, as that was the time scheduled by the Panel. During the physical examination, the claimant was provided with a modesty sheet, which he used consistently to cover his pelvic region while the lower limbs were being examined. Both Medical Assessor Yu and the interpreter, Mr Khuder, left the room when the claimant was removing and putting back on his jeans before and after the lower limb examination. Otherwise, the interpreter remained in the room throughout the assessment at the claimant’s request.
Examination of the low back: the claimant’s lumbar spine showed normal lordosis, and there was no clinical evidence of scoliosis. A 1cm-long scar was observed near the left posterior superior iliac spine (PSIS). The claimant stated that this scar was not related to the motor accident and was unable to identify its origin. He exhibited mild tenderness on palpation at the spinal midline at the L4/5 level and near each PSIS. Palpation of other areas of the lumbar region did not elicit tenderness or other abnormal findings.
The claimant demonstrated his maximum range of movement in the lumbar spine as follows:
(a)    anterior flexion: normal;
(b)    extension: normal;
(c)    right lateral flexion: half of the full range, and
(d)    left lateral flexion: half of the full range.
The Schober test was conducted, and the distance between two small marks made on his skin increased from 15cm in the anatomical posture to 21cm when the claimant flexed his lumbar spine forward to the extent he felt was safe.
Functional testing of the lumbar spine included the following:
(a)    the Trendelenburg test was negative bilaterally.
(b)    The Straight Leg Raise (SLR) test was performed in a seated position. The claimant fully extended each knee alternately while sitting upright with his hips flexed to 90 degrees. He reported spreading pain from the lower back to the posterior thigh on the same side as the extended knee. However, the pain did not extend past the knee, and the test was deemed negative.
(c)    Gait assessments, including tandem walking, heel walking, and tiptoe walking, were normal.
(d)    The claimant was unable to hop on either foot or perform a squat or squat-walk.
(e)    He was unable to step onto and off a 40 cm-high step but could do so on a 25cm-high step, albeit slowly.
Examination of the lower limbs: multiple scars were observed:
(a)    an 8cm-long scar and a 1 cm-long scar on the left shin, which the claimant attributed to injuries sustained long before the motor accident;
(b)    a 1cm-long scar on the posterior right ankle;
(c)    a 2cm-long scar on the anterolateral aspect of the right knee, and
(d)    a 1cm-long scar on the right shin. the claimant was unable to identify the origin of these scars but was adamant that none were related to the motor accident.
The appearance of the lower limbs was otherwise unremarkable. Each leg measured 83cm in length, as determined by measurements from the anterior superior iliac spine (ASIS) to the medial malleolus. The right thigh circumference was 47.5cm, compared to 45cm on the left. When asked about this asymmetry, the claimant was advised to consult his treating doctor. Both legs exhibited equal circumferences of 37.5cm.
The muscle tone was normal throughout both lower limbs. Muscle power was graded as 5 out of 5 for all movements of the hips, knees, ankles, and toes based on the Medical Research Council (MRC) criteria. Reflex testing produced normal results:
(a)    patellar reflex: 2+ bilaterally;
(b)    medial hamstring reflex: 2+ bilaterally;
(c)    tendo achilles reflex: 2+ bilaterally, and
(d)    babinski reflex: normal bilaterally.
Sensory testing using calibrated monofilament (10g) and a spring-loaded pinprick device revealed normal findings throughout both lower limbs.
Examination of the right shoulder: the claimant’s skin displayed dimpling over the lateral part of the right supraspinatus muscle area, near but not at the right shoulder blade. This dimpling was not observed in the left shoulder region. A 1cm-long scar was noted on the anterior aspect of the right shoulder, and a 0.5cm-long scar was noted on the posterior aspect. The claimant attributed both scars to pre-accident surgery on his right shoulder, which he estimated occurred in 2016 or 2017.

The right glenohumeral joint was tender to palpation posteriorly and superiorly, while the acromioclavicular joint was non-tender. Maximum ranges of motion in the shoulders were:
(a)    flexion: 150° in the left shoulder, 130° in the right shoulder;
(b)    extension: 50° in the left shoulder, 10° in the right shoulder;
(c)    abduction: 170° in the left shoulder, 80° in the right shoulder;
(d)    adduction: 40° bilaterally;
(e)    internal rotation: 80° bilaterally, and
(f)    external rotation: 80° in the left shoulder, 40° in the right shoulder.
Functional tests were as follows:
(a)    the Hawkins-Kennedy test was positive in the right shoulder and normal in the left;
(b)    the Empty Can test elicited weakness and superior glenohumeral aching in the right shoulder but was negative on the left, and
(c)    the Full Can test revealed weakness without pain in the right shoulder but was normal on the left.
Tests for belly press, belly off, speeds, and infraspinatus integrity were all normal bilaterally.

FURTHER MATERIAL OBTAINED BY THE PANEL

The Panel issued a direction to the insurer on 21 May 2024 to draw notices for production under rule 46 of the PIC Rules to be issued to Ninevah Construction Pty Ltd for the following in respect of the claimant:
(a) attendance records for work duties, payslips, overtime records;
for the period 1 January 2021 to 10 August 2021.
In response to the direction, the Panel received two PDF unsigned letters which were in the following terms:
“7^th July 2021
TO WHOM IT MAY CONCERN
This letter confirms that Mr Kameran Shaooka is employed at Nineveh Construction Pty Ltd as a carpenter.
Mr Shaooka has commenced work at Nineveh Construction on the 7^th July 2021 earning $27.50 weekly based on three days a week.”
and
“9th July 2021
TO WHOM IT MAY CONCERN
This letter confirms that Mr Kameran Shaooka, was employed by Nineveh Construction PTY LTD up to the date of 9th July 2021 his role was carpenter.
Mr Shaooka, has stopped working due to a car accident injury, therefore we cannot provide any work as our workload is a heavy duty work.”
The Panel had regard to the metadata of both PDF documents. Both PDF documents were created on 31 August 2021 at 11.29am and 11.35am, respectively.
The Panel issued a direction on 2 September 2024 that the claimant was to provide the Panel with the materials that record the nature and duration of any employment he held since he underwent his right shoulder surgery in 2018 prior to his employment with Nineveh Constructions.
Further to this direction the claimant produced payslips from BW Management Pty Ltd which showed consistent payments of weekly pay periods from 3 August 2020-2 May 2021.

PANEL’S FINDINGS

Lower back

The claimant exhibited tenderness to palpation and half-range lateral flexion bilaterally, consistent with a soft tissue injury caused by the motor accident. He reported no prior back pain or symptoms in his legs before the motor accident. Clinical signs did not meet the criteria for radiculopathy under the applicable Guidelines and MAI Regulation. The findings were therefore consistent with a musculoligamentous injury, which is a threshold injury under the Act.

Right shoulder

The claimant reported experiencing pain in his right shoulder following the motor accident. He attributed this to extending his right arm against the dashboard during the collision, which occurred when a utility vehicle collided with the rear of the car in which he was a front-seat passenger. The motor accident did not involve significant cabin intrusion, and the airbags were not deployed. The claimant did not strike his shoulder on any surface, nor did he lose consciousness. While he described immediate nausea and shock, no emergency services attended the scene, and he was driven home by the driver of the vehicle. He later sought medical attention, reporting pain in his right shoulder and lower back, along with functional limitations that he claimed prevented him from returning to his work as a formworker.
The claimant’s medical history reveals a long-standing pre-existing condition involving his right shoulder. He was diagnosed with rotator cuff tendinitis and tendinosis in 2013, with imaging at the time identifying a labral tear and a degenerative labral cyst. These conditions necessitated arthroscopic repair surgery in 2016, during which two suture anchors were placed to address the labral tear. Post-surgical follow-ups indicated improvements, with reports of near-full pain-free range of motion. However, the claimant sustained further trauma to the right shoulder in a workplace fall in 2017, leading to bruising and tenderness. Despite these incidents, the claimant returned to his duties as a formworker, with payslip evidence that he worked for nearly a full year from April 2020 to early May 2021.
Critically, in May 2021, just two months before the motor accident, a Centrelink medical certificate confirmed a diagnosis of right rotator cuff syndrome. The claimant reported pain and stiffness, and he was declared unfit for work due to worsening symptoms since 1 May 2021. This contemporaneous evidence strongly suggests that the right shoulder was already symptomatic and impaired before the motor accident.
The Panel holds significant concerns regarding the reliability of the claimant’s assertion to Medical Assessor Yu that he had worked full-time as a construction formworker with heavy manual handling duties in the months leading up to the motor accident. The two letters purportedly from Nineveh Constructions, dated 7 July 2021 and 9 July 2021, fail to provide credible support for this claim and contain inconsistencies that substantially undermine their evidentiary value.
The letter dated 7 July 2021 contains palpable inaccuracies and does not provide the specificity expected of a document intended to verify employment. These omissions detract significantly from the letter’s reliability as evidence of the claimant’s alleged work history or role at Nineveh Constructions.
The letter dated 9 July 2021, allegedly written on the date of the motor accident, raises further concerns. The Panel questions the necessity of issuing such a letter on the very day of the motor accident. This appears to be highly implausible.
Indeed, metadata analysis reveals that both the 7 July and 9 July letters were created on 31 August 2021, nearly two months after the motor accident. The retrospective nature of their creation undermines their credibility and evidentiary weight. Furthermore, the timing of their creation – weeks after the motor accident – further detracts from their reliability. The absence of contemporaneous creation, combined with the lack of substantive detail, renders these letters unreliable for establishing the claimant’s employment status or duties prior to the motor accident.
By contrast, the Centrelink medical certificate dated 17 May 2021 aligns with the records from BW Management Pty Ltd, which showed consistent payments for weekly pay periods from 3 August 2020, concluding on 2 May 2021. The Centrelink medical certificate provides a contemporaneous and credible account of the claimant’s pre-accident condition. This certificate, completed by Dr Sadek, diagnoses the claimant with right rotator cuff syndrome and explicitly states that he was unfit for work due to ongoing pain and stiffness. Unlike the Nineveh Constructions letters, the Centrelink certificate is addressed to the Australian Government and thereby carries serious legal consequences for the provision of false information with penalties for Centrelink fraud including up to 10 years’ imprisonment for obtaining property or financial advantage through deception, and up to five years’ imprisonment for general dishonesty offences. The potential for such severe penalties adds considerable weight to the credibility of the information contained in the Centrelink certificate.
Furthermore, the Centrelink certificate aligns with the claimant’s documented medical history, which reflects longstanding shoulder issues dating back to at least 2013. It provides a clear and contemporaneous explanation for the claimant’s functional limitations in the months leading up to the motor accident. This stands in stark contrast to the vague and retrospectively created Nineveh Constructions letters, which lack the detail and specificity necessary to reliably establish the claimant’s employment status or work capacity.
Given the lack of contemporaneity, detail, and reliability in the Nineveh Constructions letters, the Panel places no weight on them as evidence of the claimant’s employment history or work capacity. The inconsistencies in their creation and content, combined with the retrospective timing, significantly undermine their evidentiary value. Conversely, the Centrelink medical certificate is preferred as it was created contemporaneously, contains verifiable details, and was submitted under circumstances that deter the provision of false information through the significant legal penalties associated with such acts. These factors reinforce the conclusion that the claimant was not working full-time as a formworker without restrictions prior to the motor accident.
Post-accident imaging and clinical findings must be carefully analysed to determine the causal link, if any, between the collision and the claimant’s right shoulder injury. An ultrasound conducted on 15 July 2021 revealed findings of supraspinatus and infraspinatus tendinosis, along with partial-thickness tears measuring 4x4mm and 2x2mm in the supraspinatus tendon. However, an MRI performed on 8 August 2021 and an MR arthrogram on 28 September 2021 showed no evidence of a tear, instead characterising the supraspinatus tendon as exhibiting tendinosis. Both MRIs also confirmed no new labral tears, intact rotator cuff tendons, and post-surgical irregularities. These findings strongly contradict the single ultrasound report of a tear, suggesting that the ultrasound findings may not accurately reflect the true condition of the tendon.
The Panel’s clinical acumen reinforces the conclusion that MRI findings are more reliable for assessing shoulder injuries than ultrasound. Ultrasound accuracy is dependent on operator technique, while MRIs are machine-dependent and standardised by engineering controls, making them less prone to human error. The standardisation of MRIs ensures more consistent results. In this case, the MR arthrogram dated 28 September 2021 explicitly characterised the supraspinatus tendon as exhibiting “tendinosis” rather than a tear. This aligns with the MRI report of 8 August 2021, which also reported tendinosis without any evidence of a tear. The absence of a tear in both MRIs clinically outweighs the single ultrasound finding of a tear three weeks earlier, particularly as a partial tear would not have resolved by the time of the first MRI.
Taken together, the evidence overwhelmingly supports the conclusion that the motor accident did not cause a new tear in the claimant’s supraspinatus tendon. Instead, the accident likely exacerbated the claimant’s pre-existing rotator cuff tendinosis, a condition documented as far back as 2013. The findings of tendinosis in both MRIs are consistent with this pre-existing condition, while the absence of a tear in these higher-standard imaging modalities undermines the reliability of the ultrasound finding. The mechanism of injury described by the claimant – bracing against the dashboard – further supports the conclusion that the accident caused, at most, a soft tissue strain or temporary aggravation of symptoms.
The exacerbation of a pre-existing condition qualifies as a threshold injury under s 1.6(2) of the Act, as it falls within the definition of a “soft tissue injury.” The absence of new structural damage or a complete or partial rupture of tendons, ligaments, or cartilage confirms this classification. Causation requires that the motor accident materially contributed to the injury, even if pre-existing conditions also played a role. Here, while the accident may have temporarily aggravated the claimant’s pre-existing right shoulder symptoms, it did not cause any significant or permanent structural change to the shoulder.
The weight of the evidence demonstrates that the claimant’s right shoulder injury is an exacerbation of a pre-existing condition and not a new injury caused by the motor accident. The absence of any structural tear in the MRIs, the unreliability of the ultrasound finding, the claimant’s documented pre-accident shoulder symptoms, and the alignment of the Centrelink certificate with the claimant’s pay records all support this conclusion. Accordingly, the right shoulder injury is appropriately classified as a threshold injury under the Act.

[2025] NSWPICMP 11

7 January 2025