Toumeh v Allianz Australia Insurance Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Toumeh v Allianz Australia Insurance Limited [2024] NSWPICMP 121
CLAIMANT:	Souad Toumeh
INSURER:	Allianz Insurance (Australia) Ltd
REVIEW PANEL
MEMBER:	Ray Plibersek
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	Christopher Oates
DATE OF DECISION:	1 March 2024
CATCHWORDS:	MOTOR ACCIDENTS – Claimant was a front seat passenger in a car doing a three-point turn when her car was hit by another car; on review, the Panel found that the injuries to the claimant’s head, cervical spine and lumbar spine are soft tissue injuries caused by the motor accident and are threshold injuries; the injuries to the left shoulder of partial rupture of tendons were caused by the motor accident and are non-threshold injuries; neither party disputed the original Medical Assessor’s determination regarding the treatment and care dispute of a cortisone injection to the left shoulder which was found to relate to the injury caused by the motor accident and is reasonable and necessary; Held – original medical certificate regarding permanent impairment revoked.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Ian Cameron dated 14 March 2023 and issues a replacement certificate determining that: (a) The following injuries caused by the motor accident are threshold injuries (formerly minor injuries): • head – soft tissue injury; • cervical spine – soft tissue injury, and • lumbar spine – soft tissue injury. (b) The following injuries caused by the motor accident are non-threshold injuries: • left shoulder– partial rupture of tendons.

STATEMENT OF REASONS

INTRODUCTION

On 13 March 2021, Mrs Souad Toumeh (the claimant) was a front seat passenger in a car doing a three-point turn on Ingham Drive Casula NSW when her car was hit by another car.
After the accident Mrs Toumeh was taken by ambulance to Liverpool Hospital.
Allianz Insurance (Australia) Ltd (the insurer) is the relevant insurer with liability to pay any damages to Mrs Toumeh under the Motor Accident Injuries Act 2017 (MAI Act).
By letter dated 18 August 2021, the insurer issued a Liability Notice denying liability on the basis that the claimant had suffered a minor injury for the purposes of the MAI Act.[1]
[1] Insurer’s bundle R3.
In an email dated 15 September 2021 the claimant sought an internal review of this decision.
The insurer determined its internal review decision on 6 October 2021.[2] The outcome of the internal review was that the minor injury determination was confirmed.
[2] Insurer’s bundle R 4.
The claimant sought a medical assessment of her head, shoulders and spinal injuries. The claimant was medically assessed by Medical Assessor Ian Cameron on 28 February 2023.
Medical Assessor Ian Cameron issued a certificate dated 14 March 2023.[3] In that certificate he certified that the following injuries were caused by the motor accident: head – soft tissue injury; cervical spine – soft tissue injury; left and right shoulders – soft tissue injury; thoracic spine – soft tissue injury and lumbar spine – soft tissue injury were all a minor injury for the purposes of the MAI Act. Medical Assessor Cameron also certified that the treatment and care of a cortisone injection to the left shoulder does relate to the injury caused by the motor accident and is reasonable and necessary.
[3] Claimant’s bundle AD 3 pp 12-17.
Under recent legislative amendments, a “minor injury” is now known as a “threshold injury” and “minor injuries” are now known as “threshold injuries”.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter, including “(e) whether the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[4]
On 27 March 2023 the claimant filed an application with the Personal Injury Commission
(Commission) seeking a Panel review of the minor injury certificate of Medical Assessor Cameron.
ASSESSMENT UNDER REVIEW
[4] Section 7.20 of the MAI Act.
The dispute was initially referred to Medical Assessor Cameron who assessed Mrs Toumeh and issued a certificate dated 14 March 2023.
Medical Assessor Cameron certified that the following injuries were caused by the motor accident: head – soft tissue injury; cervical spine – soft tissue injury; left and right shoulders – soft tissue injury; thoracic spine – soft tissue injury and lumbar spine – soft tissue injury were all a minor injury for the purposes of the MAI Act. Medical Assessor Cameron also certified that the treatment and care of a cortisone injection to the left shoulder does relate to the injury caused by the motor accident and is reasonable and necessary.
Medical Assessor Cameron’s diagnosis was that Mrs Toumeh sustained soft tissue injuries to her left shoulder and possible other body regions. He found no evidence that the lumbar spine imaging findings were related to the motor vehicle crash. There is no evidence of radiculopathy at the cervical spine. Mrs Toumeh did not sustain a significant head injury. Medical Assessor Cameron found that, based on the opinion of the treating orthopaedic surgeon, Mrs Toumeh did not sustain a tear of the left shoulder supraspinatus tendon.
The Review Panel notes that the claimant’s application for a review only relates to the minor injury dispute. The claimant submits that there was no error with respect to the treatment dispute (M10464896/21) and accepts Medical Assessor Cameron’s finding in relation to that treatment dispute. In its written submissions the insurer also notes that it does not dispute Medical Assessor Cameron’s determination regarding the treatment and care dispute.[5] Accordingly the Review Panel has not considered nor reviewed the treatment dispute in this review and Medical Assessor Cameron’s findings and certificate on the treatment and care dispute are unchallenged.
[5] Insurer bundle R 2 pp 2-3.

REVIEW PROCEDURE

An application for review of the medical assessment of Medical Assessor Cameron was lodged on 27 March 2023 which is within 28 days of the date on which the certificate was made available to the parties.
On 2 May 2023 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel). The delegate’s reasons were that Medical Assessor Cameron had information before him which indicated the claimant had a full-thickness tear of a tendon. This pathology falls outside the definition of a soft tissue injury and Medical Assessor Cameron did not address the material other than to note the contents of the report. The delegate wrote that she was satisfied that there is reasonable cause to suspect that the medical assessment is incorrect in a material respect on the basis that there was evidence before Medical Assessor Cameron which may indicate that the claimant sustained a non-minor injury, however this evidence was not addressed by Medical Assessor Cameron in his reasons.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.[6] Accordingly, the President’s delegate referred the matter to this Panel to assess.
[6] Section 7.26(5A) of the MAI Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[7]
[7] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[8]
[8] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned. 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.
The Panel issued Directions to the parties dated 14 September 2023 directing that it intended to re-examine the claimant.

THRESHOLD INJURY (formerly minor injury) – STATUTORY PROVISIONS

The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From
1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.
The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
Any reference in these reasons to “minor injury” is taken to be a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “psychological or psychiatric injury that is not a recognised psychiatric illness”.
Sub-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.”
Section 1.6 of the MAI Act provides that Regulations may be made to exclude or include a specified injury from being a threshold injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the MAI Act.
Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3   The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4    Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5    A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6     The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d)     a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
In respect of injury to the neck or spine cls 5.7, 5.8 and 5.9 of the Guidelines provide:
“5.7   In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.
5.8    Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b) positive sciatic nerve root tension signs(see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c) muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
5.9    Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury.”
ASSESSING THE CAUSATION OF INJURIES
The difficult issue of how Medical Assessors are required to assess the causation of injuries in a motor accident has been recently considered in a number of cases. Some of these recent cases are referred to below.
In Briggs v IAG Limited trading as NRMA Insurance (No. 2)[9] his Honour Justice Wright stated at [35]:
[9] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.
3.“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of injury
4.6.5     An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
5.6.6     Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
6.'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:
7.1.        The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
8.2.        The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
9.This, therefore, involves a medical decision and a non-medical informed judgement.
10.6.7     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.’”
In Briggs v IAG Limited trading as NRMA Insurance (No. 2),Wright J set out some fundamental principles of how Medical Assessors are required to approach the question of causation in accordance with the Guidelines (in the context of errors made by the second review panel). His Honour said, at [75]-[77]:
“75. This being so, it was necessary for the panel to consider whether the motor accident did cause or contribute to Mr Brigg’s condition. This required, not a consideration of material derived as a result of an internet search for ‘all past and recent high-quality research articles pertaining to MRI imaging of the lumbar spine, with a focus on injury, degeneration and pain’, but rather a consideration of the material referred to in cl 5.6 of the Guidelines, namely all the evidence available to the panel including all relevant findings derived from:
(1) a comprehensive, accurate history, including pre-accident history and pre-existing conditions;
(2) a review of all relevant records available at the assessment;
(3) a comprehensive description of the injured person’s current symptoms;
(4) a careful and thorough physical examination; and
(5) diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.
76. In Mr Briggs’s case that would include, without attempting to be exhaustive:
(1) Mr Briggs’s age, circumstances and relevant medical history at the time of the motor accident, including whether there was any previous history of lumbar spine pain;
(2) the particular nature and extent of the accident and the forces that would have been operative on Mr Briggs as a result of the accident; and
(3) Mr Briggs’s circumstances and relevant medical history including the MRI results and results of other medical examinations and testing, after the motor accident.
77. In light of all that material and in accordance with cll 6.6 and 6.7 of the Guidelines, the panel should then have made ‘a non-medical informed judgement’ as to whether it was likely that the motor accident caused or contributed to Mr Briggs’s injury in question.”
In Briggs v IAG Limited trading as NRMA Insurance (No. 3),[10] her Honour Harrison AsJ found that a third review panel’s decision on causation was based wholly on its findings that radiological changes cannot be scientifically proven to be traumatically caused. Her Honour found that in conducting its assessment the third review panel failed to take into account all of the relevant evidence referred to by Wright J in the above passage from Briggs (No. 2). Her Honour then stated:
“42. The third review panel failed to take into account all relevant evidence as required by clause 5.6 of the guidelines,and in light of all that material and in accordance with cll 6.6 and 6.7 of the guidelines, the panel failed to make ‘a non-medical informed judgement’ as to whether it was likely that the motor accident caused or contributed to the plaintiff’s injury.
43. In relation to the finding as to causation of the injury to the lumbar spine, the third review panel asked itself the wrong question and applied the wrong test. In the same way that the second review panel had fallen into error, the third review panel failed to address the question of causation on the balance of probabilities, instead requiring that the claimant establish causation of the disc injury to the level of medical certainty, rather than on the balance of probabilities.”
[10] Briggs v IAG Limited Trading as NRMA Insurance [2024] NSWSC 3 (No. 3) , at [39], [41].

In Briggs v IAG Limited trading as NRMA Insurance (No. 3),[11] her Honour Harrison AsJ referred again to the decision of Wright J in Briggs (No. 2) where his Honour cited the following cases and commented:
“71. The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWLR 238 as follows, at 242:
… it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.
72.    Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].
73.    The second review panel did not address the question of whether on the balance of probabilities the motor vehicle accident caused the annular tear even though there might be no scientific certainty. Furthermore, the second review panel’s reasoning did not reflect the approach to determining causation in cll 6.6 and 6.7 of the Guidelines, which in my view is consistent with the legal principles I have outlined.
74.    For the reasons set out above, the review panel failed to deal with the issue of causation according to law, and, in doing so, constructively failed to exercise its jurisdiction.”
[11] Briggs v IAG Limited Trading as NRMA Insurance [2024] NSWSC 3 (No. 3), at [44].

EVIDENCE BEFORE THE REVIEW PANEL

Application for Personal Injury Benefits
The Application for Personal Injury Benefits dated 10 May 2021 notes the reported injuries as listed:
“Head injury
discal injury to neck
full thickness tear of the supraspinatus tendon
left shoulder injury / left bicep injury
injury to the mid-back / discal injury to the lower back
right paracentral disc protrusion at L4/5 compressing he right L5 nerve
double vision
psychiatric sequelae anxiety, depression, PTSD”[12]
[12] Insurer bundle R 6 p 114.
The insurer notes that the claimant has disclosed her history of back pain on her Application for Personal Injury Benefits (R6), however has failed to disclose the history of depression (R10) and prior neck surgery (R11), notwithstanding alleging similar injuries as caused by the subject accident.[13]
Police and ambulance reports
[13] Insurer bundle R 4 p 90.
The ambulance notes records that the claimant’s car was driven by the claimant's son. He told the paramedics that his mother had hit her head in the accident and complained of headaches mild dizziness and weakness. The notes record the claimant as being alert with a GCS score of 15 with a head knock, headache, dizziness and lethargy. Denied loss of consciousness denied cervical spine back or pelvic pain.[14]
[14] R7 p118.
The ambulance notes do not record any complaints relating to the claimant’s right shoulder or reports of pain to the cervical, thoracic or lumbar spine.
There was a police report dated 9 June 2021.[15] The police report notes the ‘passenger had very mild head injuries’. It describes the collision as follows:
“…. VEH1 suddenly attempted to conduct a U-Turn, crossing the centre line in
front of VEH2. As this occurred, the Front of VEH1 collided with the front offside of VEH2. Both vehicles stopped and were tended to by emergency services. A passenger of VEH1 had very mild head injuries and was conveyed to Liverpool Hospital by ambulance. Both vehicles were towed from the scene.”
Hospital reports
[15] Insurer bundle R 8 p128.
After the accident the claimant was transported by ambulance to Liverpool Hospital.
The ED discharge referral from Liverpool Hospital dated 9 February 2021 contained the following description of the accident and injuries:
“… - Pt was passenger of vehicle during U-tum
- car vs car, 50km/h, pt's car was collided on passenger side
- No airbags deployed, seatbelt worn
- Pt struck L temporal head and L shoulder on door during collision
- Pt complains of headache, light headedness, nausea, L shoulder pain
- Pt denies vomiting, visual deficits, drowsiness, LOC
- No external bleeding or vertigo
- Pt remembers sequence of events before and after crash well
14.- Reports no amnesia .”[16]
[16] Insurer bundle R 11 pp146 – 147.
The ED report from Liverpool Hospital concluded that there were no facial, neck or scalp lacerations, bruising or abrasions. There was normal neck range of movement without pain and no survival spine tenderness.[17]

Treating medical evidence
Pre-accident treating records
[17] Insurer bundle R 11 pp146 – 147.

There were limited medical records available for the claimant’s medical history prior to motor vehicle accident.
The Panel has reviewed all the pre-accident treating medical records produced by both the claimant and the insurer.
Dr Barich (R9) and the claimant’s general practitioner (GP) clinical notes (R10) confirm a pre-existing history of osteoarthritis, back pain, widespread joint pain including the back, hips and knees, and a longstanding history of depression.[18]
Post-accident treating records
[18] Insurer bundle R 4 p 90.
There is a referral letter from the claimant's treating doctor, Dr Antwan Barich, dated
[19] Insurer bundle R9 p130.
29 March 2021. This letter lists the claimant’s previous medical history as including: L4 /5 disc prolapse, back pain, depression, osteoarthritis and on 19 May 2017 joint pain /hands/hips/back/elbows.[19]
In a report dated 27 July 2021 Dr Nouh orthopaedic surgeon, wrote that the claimant had an MRI scan on her left shoulder which shows no cuff tear but subacromial bursitis. The doctor recommended conservative management only at this time.[20]
[20] Insurer bundle R 17 p 157.
In an email from Dr Leong dated 26 August 2021 he commented about an MRI scan from
19 July 2021. Dr Leong stated that there are ‘no definite signs of acute traumatic injury’.
Dr Leong was asked whether the MRI scan showed low-grade tendinitis and partial thickness of the intrasubstance tear of the subscapularis or does it represent degenerative age related changes in the shoulder or could this be the result of a frontal car collision which occurred on 13 March 2021? Dr Leong wrote in response that is:
“Not possible to tell for sure. Those changes could be related to a car accident from
13 March 2021, but may also be degenerative in nature.”
REVIEW OF THE RADIOLOGY
There are a number of X-rays, MRIs and ultrasound scans reporting on the claimant’s shoulders, cervical spine, thoracic spine and lumbar spine.
There is a lumbar spine CT scan dated 27 March 2023 which shows extensive degenerative and age-related changes, including annular bulges at L1/2 and L2/3, disc degeneration and disc bulges at L3/4 and L5/S1.[21]
[21] Insurer bundle R12 p 151.
On 25 March 2021 a left shoulder ultrasound showed a full thickness tear of the supraspinatus tendon. Infraspinatus tendon appears intact. Subacromial bursal thickening. Degenerative changes and bursitis. [22] There appears to be a full-thickness tear of the supraspinatus tendon, subscapularis tendonitis, subacromial bursitis and small biceps tendon sheath effusion.
[22] Insurer bundle R16 pp 155- 156.
On 19 July 2021 an MRI reported ‘no tear of the supraspinatus tendon’ however noted low-grade partial thickness tear of the subscapularis tendon and supraspinatus tendinosis.
SUBMISSIONS
Claimant’s submissions
The claimant’s solicitors provided written submissions dated 27 March 2023.[23]
[23] Claimant’s bundle document 1.
In the submissions dated 27 March 2023 the claimant clarifies that its application for a review to the Review Panel only relates to the minor injury dispute. The claimant submits that there was no error with respect to the treatment dispute (M10464896/21) and accepts Medical Assessor Cameron’s finding in relation to that dispute.
In the submissions the claimant submits that Medical Assessor Cameron had failed to fully address and consider all of the evidence concerning the left shoulder tear.
The claimant submits that a review of the radiological scans taken after the subject accident will confirm that the claimant has in fact sustained a tear to the left shoulder.
The submissions contend that had Medical Assessor Cameron considered the medical evidence and the Guidelines he would have found that there is objective evidence that demonstrates that the claimant has sustained a non-minor injury on the basis that she has sustained a tear to the left shoulder.
Regarding the injury to the claimant’s neck or cervical spine, the claimant submits that radiculopathy was present before Medical Assessor Cameron examined the claimant.
The claimant submits that the documents provided to Medical Assessor Cameron confirm that upon examination with her treating doctors, the claimant presented with at least two clinical signs of radiculopathy, which satisfies the criteria for radiculopathy as determined by the decision of David v Allianz Australia Insurance Ltd [2021] NSWPICMP 227. Based on the examination/ clinical findings of Medical Assessor Cameron during the assessment, and the recent decision of David v Allianz, the claimant submits that she has a non-minor injury as she has satisfied the requirement of at least two clinical signs of radiculopathy.

Insurer’s submissions

The insurer has provided written submissions dated 17 April 2023 and 15 December 2021.[24]
[24] Insurer bundle R 2, R 3 and R 4.
In the submissions dated 17 April 2023 the insurer’s solicitors submit that the parties accept the determinations of Medical Assessor Cameron that the claimant sustained only minor injuries to her head, cervical spine, right shoulder and thoracic spine in the subject accident. The insurer also submits that the parties accept his determination that the need for treatment arose as a result of the subject accident, that the request was reasonable and necessary and may improve the claimant's recovery.
The insurer acknowledges that the treatment aspect is not disputed, nor is it alleged to be incorrect and will not be reviewed absent of a future application being lodged by the parties.[25]
[25] Insurer bundle R 2 pp 2-3.
The insurer also does not dispute that a supraspinatus tendon tear is not a threshold injury for the purposes of s 1.6(2) and that if reasonable suspicion of error is founded by the President’s delegate, it would be material and referral to the panel would be appropriate.
The insurer refers to a decision in the case of Insurance AustraliaLtd v Marsh [2022] NSWCA 31 which states that the function of a Medical Assessor is to form their own opinion on the medical question in dispute not to choose between competing opinions or assess the correctness of such opinions.
The insurer acknowledges that a supraspinatus tear was identified by the reporting radiologists but that Medical Assessor Cameron's ultimate finding was that no such tear was present after having reviewed all the medical evidence and conducted his own examination.
The insurer submits that the claimant’s GP has not diagnosed a left shoulder tear, but rather a “left shoulder injury” and acromioclavicular subluxation, both of which are threshold injuries.
The insurer also submits that Medical Assessor Cameron discharged his legal duty by clearly showing his path of reasoning.
The insurer agrees that the presence of verifiable radiculopathy at any time after the subject accident, presuming it satisfies the two-criterion test contained in cl 6.138 and is determined as causally related to the accident, would constitute a non-threshold injury. The insurer also does not dispute that the assessment and diagnosis of radiculopathy may be made by a Medical Assessor, but it may similarly be made by a treating doctor or other suitably qualified person.
The insurer further argues that the claimant does not refer to any evidence that would substantiate a finding of radiculopathy. Medical assessor Cameron has correctly determined that …“there is no current evidence of radiculopathy or evidence that radiculopathy has been present, as defined in the Guidelines, at any time following the subject accident”.
In written submissions dated 15 December 2021 the insurer notes that no complaint relating to the left shoulder was noted in the ambulance report (R7), and that on secondary survey at Liverpool Hospital (R11), her examination was described as normal, with a normal, unrestricted range of motion, nil pain or tenderness. [26]
[26] Insurer bundle R 2, R 3 and R 4.
The insurer submits that there is no clinical findings or evidence that suggests a fracture, complete or partial rupture of tendons, ligaments or cartilage as required by the MAI Act. Any injury to the left shoulder is unrelated to the subject accident.
Regarding the alleged neck injury with signs of radiculopathy the insurer submits that the medical evidence does not support a finding of radiculopathy as alleged by the claimant. There is a lack of radiological evidence submitted that would demonstrate the presence of such an injury. There also does not appear to be any objective evidence of any presence of radiculopathy, a new rupture of tendons or an ‘injury to nerves or…ligaments, menisci or cartilage’ which would give rise to the diagnosis of a non-minor injury for the claimant. The claimant did not report cervical spine symptoms immediately following the accident (R7, R11), nor has she provided contemporaneous medical evidence to date that would demonstrate said complaints. The insurer suggests that the claimant’s complaints of neck injury related to her previous neck surgery.
Regarding the alleged lumbar spine injury, the insurer submits that the insurer submits that an aggravation as diagnosed by her GP (R19), if any, would be temporary and resolved by this time. Any ongoing pathology is, with respect, purely pre-existing and related to degenerative and age-related conditions, as can be seen on the imaging.
The insurer submits that all of the claimant's alleged injuries are all minor injuries as defined under the MAI Act.

MEDICAL EXAMINATION

Details of who attended the assessment

Mrs Toumeh attended for in person medical examination by Medical Assessor Oates at the Commission’s medical suites on 31 October 2023 as arranged.
She was accompanied by a NAATI-registered Arabic interpreter, who was present for the duration of the assessment.
Mrs Toumeh’s son waited outside the examination room.

Pre-accident medical history and relevant personal details

Mrs Toumeh was a primary school teacher in Syria. She came with her family to Australia in 2015. She lives at home with her husband who has had an operation and she is his carer, and two sons aged 28 and 22.
She was previously in good health, having had a tonsillectomy a long time ago and also a right partial thyroidectomy in approximately 2008. She has had no previous accident.
She has had no previous problems with the neck or head injuries, but in 2015 after arriving in Australia, she tripped on a cracked tile in the Westfield Shopping Centre at Liverpool and stumbled forward but did not fall. She injured her back. She had physiotherapy. There was no leg pain involved.
The back injury resolved after about six months. She did not make a claim. Thereafter, she would have occasional low back pain if she was bending a lot but did not require any treatment.
She was busy at home doing the cleaning and traditional cooking, which is quite involved, and also gardening without problems.

History of the motor accident

Mrs Toumeh was a front seat belted passenger in a car driven by her son on 13 March 2021. He was in the process of doing a three-point turn to park in front of a property on the opposite side of the road, when their vehicle was hit by a car coming from the opposite direction to which they were originally travelling it. It hit the left front and side of their car and their car spun in the opposite direction. The airbags did not deploy. She hit the left side of her head and left shoulder, and also the left hip area against the side of the vehicle cabin. She developed a lump on the left side of her head and ice was applied by the paramedics.
Police, ambulance and fire brigade attended. The ambulance records refer to a head injury but no other injuries. I asked her about this and she said she was dizzy when she got out of the car and was given an injection and also an ice pack, and she can’t recall what else she reported to the ambulance.
She was taken to Liverpool Hospital and does remember reporting headache and left shoulder pain to them. She had an X-ray of the left shoulder which showed no fracture. She was then discharged to the care of the GP.
The next day, her whole body felt sore and she could hardly walk. She had pain in the left shoulder and the head and neck, and lower back radiating to the right leg as far as the foot. The low back pain had not been associated with right leg pain before the accident.
Her GP, Dr Barich, Liverpool, took over her treatment. She was sent for an ultrasound scan showing a full-thickness rotator cuff tear. She was sent for physiotherapy for the left shoulder and had about 30 sessions in all but without benefit, in fact it would worsen the shoulder pain at times.
She had a CT scan lumbar spine for the low back pain radiating to the right leg and had some physiotherapy for this, but there was only short-term benefit. She would still get the low back and leg pain back with static standing for prolonged periods and bending.
She was referred to Dr Nouh, orthopaedic surgeon, regarding the shoulder. She had an MRI scan which showed a partial tear of subscapularis and no bursitis, however presumably on a clinical basis, he diagnosed impingement with bursitis and stated there was no rotator cuff tear. He ordered a cortisone injection and this was administered about two months ago, but made the shoulder pain worse. She is unsure whether she has a follow-up appointment with the specialist. She says her son arranges this because of her limited command of English.
She had her last physiotherapy session at the end of 2022 and says that further physiotherapy was approved for 2023 but she did not attend because she found it did not help and in fact worsened her symptoms on many occasions.

Details of any relevant injuries or conditions sustained since the motor accident

She said she has had no further injuries or relevant conditions develop.

Current symptoms

She is very scared and can’t drive her car since the motor vehicle accident and is also anxious when she is a passenger.
The main problem is left shoulder pain with tenderness localised to the apex and posterior aspect of the shoulder, which occurs daily and radiates to the elbow and is worse when she attempts elevation or twisting the left arm with the hand behind the body.
She also has neck pain which wakes her up in the morning and she can get severe pain from the lower back down the right leg to the foot, which lasts for 10 minutes at a time, with prolonged static standing or repetitive bending, and then she can’t move until the pain settles down. This occurs about four times a week.

When the left shoulder pain is severe, the whole arm goes numb and she has coldness in the hand with some colour change. She says she was 57kg at the time of the accident and is now about 53kg.
She also developed vision problems since the accident and the insurer sent her to an eye specialist in 2022 who told her the accident had affected her vision but it was not serious.

Current and proposed treatment

She has Panadol daily for sharp left shoulder pain and her left arm feels heavy and stiff at the time, and also for back pain, and she elevates the right leg to relive pain in this area.
Otherwise, she just tries to put up with the pain and said she is ‘a fighter’.

EXAMINATION
General presentation

She was right hand dominant, 160cm tall and 52.1kg in weight. Her gait was normal. She sat comfortably whilst relating the history and at one stage bent forward over the table to check her phone for an upcoming appointment whilst it was being held by the interpreter at the time, flexing the lower back to 90°.
During formal examination, when she stood up, she stood with a hitched-up posture of the left shoulder and looked very uncomfortable and anxious.

Cervical spine (cervicothoracic)

There was full range of movement in the cervical spine in flexion extension, lateral flexion and rotation, with complaint of left-sided neck discomfort at the end of right lateral flexion and rotation.
The reflexes in the upper limbs were symmetrical with power and sensation normal.
Upper arm girth; right 24cm, left 25cm at 10cm above the elbow crease. Forearm girth; right 23cm, left 22cm at 5cm below the elbow crease.
There was tenderness in both upper trapezii and left lower paracervical area with no guarding or spasm.

Thoracic spine (thoracolumbar)

No tenderness. No guarding. There was full range of movement in rotation but complaint of low back pain at the end of range bilaterally. Sensation on the truck was intact.

Lumbar spine (lumbosacral)

There was full range of movement in flexion extension, lateral flexion and rotation with complaint of low back pain on extension and rotation to the left. She squats 50% limited by complaints of low back pain.
The lower limb reflexes were symmetrical and plantar responses were both flexor. Power and sensation in the lower limbs were normal.
Thigh girth; right 38cm, left 38.5 at 10cm above the superior patellar pole.
Leg girth; right 29.5cm, left 30.5cm at 13cm below the inferior patellar pole (maximal circumference).
Supine straight leg raising; right equals left equals 70° with complaint of tight hamstring on the right but negative stretch test bilaterally.

Right and left shoulders

The right shoulder shows full range of movement in flexion extension, abduction, adduction and internal and external rotation with no tenderness.
The left shoulder was tender at the apex but no crepitus was present on the limited passive range of movement which was permitted.
Active movement in flexion was to 140°, extension 40°, abduction 80°, adduction 20°, internal rotation 60°, external rotation 30° performed with the elbow at the side because she could not elevate the left shoulder actively to allow testing of rotation in the normal position of 90° abduction.

Radiology

No imaging was brought to the examination. She said she was not told to bring any.
On 10 March 2021 X-ray left shoulder – possible left AC joint subluxation. No acute fracture.
On 25 March 2021 – X-ray left shoulder and ultrasound left shoulder – No acute bony injury. No significant glenohumeral degenerative change. The left AC joint distance is 0.7cm within normal limits and right AC joint distance is 0.6cm within normal limits.
On 25 March 2021 Left shoulder ultrasound shows subscapularis tendonitis and full-thickness tear of supraspinatus tendon with thickening with fluid and debris. Subacromial bursal thickening with impingement during dynamic assessment.
On 27 March 2021 – CT lumbar spine – Right paracentral disc protrusion at L4/5 compressing the descending right L5 nerve.
On 19 July 2021 – MRI left shoulder – Evidence of low-grade tendinosis within the superior third of subscapularis tendon and a low-grade partial-thickness intrasubstance tear of the distal insertional fibres. No tear of supraspinatus, infraspinatus or teres minor tendons. No signs of significant bursitis.
On 19 July 2021 – No glenohumeral joint effusion. No signs of glenohumeral joint chondromalacia. No abnormality of biceps tendon.

CAUSATION
Head

Soft tissue injury was caused by the accident. This is referred to in the ambulance and hospital report and on the claim form, and is consistent with the mechanism of the accident.

Cervical spine

Soft tissue injury was caused by the accident, as it is mentioned on the claim form, however examination at the hospital showed normal findings. There was no radiculopathy mentioned in the medical evidence and no evidence of radiculopathy on today’s examination. The Panel does not accept that there is clear evidence that the claimant presented with at least two clinical signs of radiculopathy.

Left shoulder

Soft tissue injury with a rotator cuff tear was caused by the accident, as it was mentioned on the claim form, hospital notes. There is a tear shown on ultrasound and MRI scan, which also showed a small bone contusion posterior aspect of humeral head, consistent with mechanism of the accident in which it was said that the left shoulder hit the car door or pillar at the time of impact, as described in the hospital record. The left shoulder was asymptomatic prior to the accident and there was no evidence to the contrary. The left shoulder then became symptomatic from the time of the accident, prompting investigation on the day of the accident in hospital.

Right shoulder

This injury was not caused by the accident and there is no evidence for this in the medical record, and it was not referred to by the claimant. The right shoulder was not the site of any current symptoms, according to the claimant, and there were normal findings on examination of the right shoulder.

Thoracic spine

There is no evidence that the accident was a cause of soft tissue injury directly to the thoracic spine. It was not mentioned as injured by the claimant and was not the site of any current symptoms. There were normal examination findings.

Lumbar spine

Soft tissue injury was caused by the accident, as it is mentioned in the claim form, however there were normal findings at the time of the hospital examination. Symptoms have persisted in the lumbar spine with radiating symptoms to the right leg, which is concordant with the report of CT scan.

TREATMENT AND/OR CARE DISPUTES

The Panel notes the parties are no longer disputing this aspect of the matter.

THRESHOLD INJURY

The head, cervical spine, and lumbar spine are threshold injuries. There was no evidence of cervical or lumbar radiculopathy on clinical examination. There was no imaging evidence of disc annular fissure.
The left shoulder is a non-threshold injury because there was a partial rupture of tendons according to ultrasound and MRI scans.

SUMMARY OF PANEL’S OPINION AND CONCLUSIONS

The Panel’s opinion is that the accident caused soft tissue injuries to the claimant’s head, left shoulder, cervical spine and lumbar spine.
The Panel accepts that Mrs Toumeh sustained soft tissue injury to her head but there was normal GCS, no recorded post-traumatic amnesia, no LOC nor any other evidence of traumatic brain injury.
The Panel accepts that Mrs Toumeh sustained soft tissue injury to her cervical spine as a result of the accident. At the re-examination and medical assessment, the Panel found a full range of movement with no dysmetria, muscle spasm, or guarding in either the neck or back. There were no ongoing radicular symptoms or signs in either upper limb. Therefore, the appropriate assessment for his cervical spine was that it was a soft tissue injury.
The Panel does not accept that Mrs Toumeh sustained soft tissue injury to her thoracic spine as a result of the accident. At the re-examination and medical assessment, the Panel found no tenderness and guarding. There was full range of movement in rotation but complaint of low back pain at the end of range bilaterally.
The Panel also accepts that Mrs Toumeh sustained a soft tissue injury to the lumbar spine. At the re-examination and medical assessment, the Panel found a full range of movement in flexion extension, lateral flexion and rotation with complaint of low back pain on extension and rotation to the left.
The Panel does not accept that the claimant’s soft tissue injuries to her right shoulder were caused by or were a result of the motor vehicle accident. The Panel notes at the re-examination the claimant demonstrated a full range of movement at the right shoulder. In her left shoulder the claimant demonstrated a limited range of movement.
The Panel finds that the claimant’s injured left shoulder was caused by or arose as a result of the motor vehicle accident. The ED discharge referral from Liverpool Hospital notes that the claimant struck her left temporal head and left shoulder on the door or pillar during collision and complained of left shoulder pain. The Panel finds that there was a partial rupture of tendons based on the reports of the ultrasound and MRI scans.
In reaching its conclusions about the causation of the claimant’s left and right shoulder injury the Panel has carefully considered and applied the definition of causation of injury under Part 6 of the Guidelines and also the court decisions referred to earlier in these reasons. The Panel is not satisfied that the subject motor vehicle accident materially contributed to the claimant’s right shoulder injury or caused or exacerbated any such injury. The Panel’s judgment is that it was likely that the subject motor accident caused or contributed to
Mrs Toumeh’s partial rupture of tendons in her left shoulder.

CONCLUSION AND CERTIFICATION

For the above reasons the Panel revokes the certificate issued by Medical Assessor Cameron.
The Panel finds that the injuries to Mrs Toumeh head, cervical spine, and lumbar spine are soft tissue injuries caused by the motor accident and are threshold injuries. The injury to the left shoulder is a non-threshold injury because there was a partial rupture of tendons and was caused or exacerbated by the subject motor accident.
The new certificate is attached at the commencement of these reasons.

[2024] NSWPICMP 121

1 March 2024