Ward v AAI Limited t/as GIO
[2025] NSWPICMP 256
•14 April 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Ward v AAI Limited t/as GIO [2025] NSWPICMP 256 |
CLAIMANT: | Brian Thomas Ward |
INSURER: | AAI Limited t/as GIO |
REVIEW PANEL | |
MEMBER: | Maurice Castagnet |
MEDICAL ASSESSOR: | Shane Moloney |
MEDICAL ASSESSOR: | David Gorman |
DATE OF DECISION: | 14 April 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); claimant suffered injury in a motor accident; threshold injury; whether a supraspinatus tear in the left shoulder found on MRI was caused by the motor accident; Held – Medical Assessment Certificate revoked; new certificate issued; injury to left shoulder is not a threshold injury. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The issue determined by the Review Panel is whether the injuries caused by the motor accident are threshold injuries. Determination 1. The Review Panel revokes the certificate of Medical Assessor Sikander Khan, dated 2. The Review Panel issues a replacement certificate determining that: (a) the following injuries caused by the motor accident are threshold injuries for the purposes of the Act: · cervical spine injury - soft tissue injury, and · lumbar spine injury- soft tissue injury. (b) the following injury caused by the motor accident is not a threshold injury for the purposes of the Act. · left shoulder injury - near full thickness to full thickness, partial tear extending from the anterior leading edge to mid supraspinatus tendon with mild subacromial bursitis. A statement of the Review Panel’s reasons for the determination is attached to this certificate. |
STATEMENT OF REASONS
INTRODUCTION
On 15 September 2018, the claimant, Brian Thomas Ward, was involved in a motor accident when a vehicle (insured by AAI Limited t/as GIO) travelling on the wrong side of the road, collided with the front and driver’s side of his vehicle.
As a result of the accident, the claimant claimed that he sustained injuries to his cervical spine, lumbar spine and shoulders. He also claimed that he developed a psychological injury although that injury is not the subject of the dispute in this matter.
AAI Limited t/as GIO (the insurer) accepted liability to pay the claimant statutory benefits arising from his injuries, under the Motor Accident Injuries Act 2017 (the MAI Act), for the first 26 weeks. Statutory benefits by way of loss of earnings and treatment and care expenses, cease after 26 weeks if “the person’s only injuries resulting from the motor accident were threshold injuries”.[1] An injured person cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were threshold injuries”.[2]
[1] Sections 3.11 and 3.28 of the MAI Act. For motor accidents occurring on or after 1 April 2023, the period of 26 weeks has been amended to 52 weeks.
[2] Section 4.4 of the MAI Act.
Following an internal review of its original decision conducted on 10 May 2022, the insurer maintained that the claimant’s physical injuries caused by the accident, were threshold injuries for the purposes of s 1.6 of the MAI Act.
To resolve the dispute, the claimant made an application for a medical assessment of the matter by the Personal Injury Commission (Commission) pursuant to Division 7.5 of the
MAI Act.According to Schedule 2, cl 2 of the MAI Act, the issue of whether an injury caused by the motor accident is a threshold injury for the purposes of the Act is declared to be a medical assessment matter.
A medical assessment matter is determined in accordance with Division 7.5. This means that the matter is determined at first instance by a Medical Assessor [3] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
THE MEDICAL ASSESSMENT UNDER REVIEW
[3] Section 7.20 of the MAI Act.
The dispute was referred at first instance to Medical Assessor Sikander Khan for assessment. Medical Assessor Khan issued a certificate dated 7 December 2023.
The injuries referred to the Medical Assessor for assessment were injuries to the cervical spine, the lumbar spine and the left shoulder.
The Medical Assessor found that the following injuries caused by the accident were threshold injuries:
· injury to the cervical spine – soft tissue injury causing musculoligamentous and facet joint trauma of the cervical spine;
· injury to the lumbosacral spine - soft tissue injury causing musculoligamentous and facet joint trauma of the lumbar spine, and
· injury to the left shoulder – soft tissue injury.
THE REVIEW APPLICATION
On 16 January 2024, pursuant to s 7.26 of the MAI Act, the claimant made an application to the President of the Commission to refer the medical assessment matter to a review panel for review. The application was registered by the Commission on 17 January 2024 and the application was accepted as being made within the time prescribed by s 7.26(10) of the MAI Act.
The President referred the application to a review panel for review, being satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect, having regard to the particulars set out in the application.
CONDUCT OF THE REVIEW
According to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F (2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission. On this occasion, the Panel is constituted by Medical Assessor Moloney, Medical Assessor Gorman and Member Castagnet (the Panel).
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.[4]
[4] Section 41(2) of the PIC Act.
Pursuant to Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules), the Panel determines how it conducts and determines the proceedings. The Panel may determine the proceedings solely based on the written application.[5]
[5] Rule 128 of the PIC Rules.
The review is not limited to only that aspect of the assessment that is alleged to be incorrect and is by way of a new assessment of all the matters with which the medical assessment is concerned.[6]
RELEVANT STATUTORY PROVISIONS, GUIDELINES AND LEGAL PRINCIPLES
The MAI Act
[6] Section 7.26(6) of the MAI Act.
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury”. Section 1.6(2) of the Act defines a soft tissue injury to mean:
“[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 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder.
The Motor Accident Guidelines
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 Act. Version 9.2 of the Guidelines which commenced on 10 November 2023, relevantly provides:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a 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, and
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a threshold injury. An injury resulting in radiculopathy will not be classified as a threshold injury.
Clause 5.7 of the Guidelines provides:
“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.”
Radiculopathy is defined in cl 5.8 of the Guidelines as follows:
“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.”
Neurological symptoms that do not meet the assessment criteria for radiculopathy means that the injury will be assessed as a threshold injury.[7]
Causation of injury
[7] Clause 5.9 of the Guidelines.
Sections 5D and 5E of the Civil Liability Act2002 apply to the MAI Act.[8]
[8] See s 3B(2) of the Civil Liability Act 2002.
In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13, Campbell J made the following observations at [65]:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
Clauses 6.5 to 6.7 of the Guidelines also address the issues of causation of injury and whether the degree of permanent impairment is caused by injury. These provisions are equally relevant to the issue of causation of threshold injury.
The following observations were made by Wright J in Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372 at [35]:
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of Injury
6.5 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.
6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.
This, therefore, involves a medical decision and a non-medical informed judgment.
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.”
MATERIAL BEFORE THE REVIEW PANEL
The claimant filed a paginated and indexed bundle of documents comprising 74 pages (the claimant’s first bundle). The insurer filed a paginated and indexed bundle of documents comprising 44 pages (the insurer’s bundle).
The claimant filed two further bundle of documents pursuant to directions made by the Panel. the first, comprising 20 pages shall be referred to as “the claimant’s second bundle” and the second, comprising four pages shall be referred to as “the claimant’s third bundle”.
At the request of the Panel, the claimant provided further documents as follows:
(a) photographs of the damage to the claimant’s vehicle, taken on 8 October 2018, and
(b) imaging and report of an ultrasound performed by Dr Yume Kwong on
6 September 2019.
The Panel considered all of the above material.
SUBMISSIONS
The claimant’s submissions
The claimant says that the motor accident does not have to be the sole cause of the injury as long as it is a contributing cause which is more than negligible. The MRI scan of the left shoulder did not show any evidence of constitutional degenerative condition or any
age-related attenuation and tear of the rotator cuff.The Medical Assessor did not take a history of any pre-accident and post-accident of the left shoulder. The claimant says that he originally thought that his left shoulder pain was coming from his neck and acted on medical advice accordingly. Had he been investigated earlier for his left shoulder pain, on balance, the tear would have been identified at an earlier stage.
Insurer’s submissions
The insurer submitted that based upon the Medical Assessor’s assessment of the MRI, the clinical records of the general practitioner (GP) and Leeton Hospital and the available evidence, it was open to the Medical Assessor to find that there was no contributing cause occasioned by the motor accident to the claimant’s rotator cuff tear in the left shoulder.
THE EVIDENCE BEFORE THE REVIEW PANEL
The evidence before the Panel may be conveniently summarised as follows.
Pre-accident medical records
The general practitioner records of the Leeton Medical Centre (the GP records) showed a history of treatment received by the claimant from February 2016 to the date of the accident. There was no evidence of any pre-accident treatment or complaints about any condition or injury relating to the lumbar spine, the cervical spine and the left shoulder.[9]
[9] Pages 3 – 20 of the claimant’s second bundle.
There was no other medical evidence before the Panel to suggest any pre-accident condition or injury to the cervical spine, the lumbar spine and the left shoulder.
The claimant’s statements
In his application for personal injury benefits (claim form) dated 8 October 2018, the claimant described his injuries in the following terms:
“Neck and back pain – I find it difficult to stand, sit or lay down for long periods, lifting and moving objects (eg. groceries) is much harder than before the accident. This is making house chores and working more difficult. Headaches – I am getting more headaches, particularly when tired, then before the accident. I have been taking over the counter medication. Anxiety – I feel uncomfortable traveling by car. again (sic) making household chores and working difficult. Difficulty sleeping - because of the above, I am having trouble sleeping. This is self-feeding and exacerbates the problems.”[10]
[10] Page 44 of the claimant’s first bundle.
In the claim form, the claimant described the circumstances of the accident as follows:
“While driving, I could see flashlights of another vehicle appearing to be coming in the opposite direction on my side of the road. I slowed down when I noticed this before coming almost to a stop. The other vehicle remained on my side of road as it came closer before hitting my vehicle on the driver’s side hard in a mix between swiping and head on type of nature. The front of my vehicle and especially the driver’s side of the vehicle was badly damaged (see attached photos) by the accident.[11]
[11] Page 44 of the claimant’s first bundle.
In a signed statement dated 23 June 2022 which was produced to the Medical Assessor, the claimant described the circumstances of the accident consistently as follows:
“I was driving over a bridge in Leeton when I noticed the lights of another vehicle approaching. As it was getting closer it appeared that it was on my side of the road. I had slowed down to about 30kms, but the other vehicle was going at least 60kms. The other car hit the front driver’s side of my car head on, and my car was pushed somewhat off the road. The impact was taken on the driver’s side of the car. I had only just dropped off passengers so there was no one else in my vehicle. The front right end side was crumpled, and I managed to move part of the front panel sufficient to get the car home where I swapped it for another taxi. My car was a 2014 model Camry and the other vehicle I think was an older model holden statesman. The other driver fled the scene and the police who happened to be directly behind my car tried to locate the other vehicle but as I understand it the other driver was never identified.”[12]
Post-accident medical evidence
[12] Pages 22-23 of the claimant’s bundle.
The clinical records from Leeton District Hospital recorded that later the morning of the accident, the claimant presented to the hospital with “headache and soreness to lower back and both shoulders.”[13]
[13] Page 34 of the claimant’s first bundle.
The claimant reported that his headache was getting progressively worse and that there was blood out of both nostrils.
On examination, the following notes were recorded:
“Nil tenderness, spine NAD, nil bruising
IMP STI minor only
Can go home with LMO FU
RV here with any concerns.”[14]
[14] Pages 34-35 of the claimant’s first bundle.
The GP records showed that the claimant’s first consultation after the accident was on
8 October 2018. Dr Simon Wallace recorded the following notes:“MVA 15/9 crossing Wattle Hill Bridge and side swiped by car going other way – impact on front driver’s corner and then downside of vehicle. No head strike. No LOCS Sudden jlot (sic).[15]
[15] Page 59 of the claimant’s first bundle.
In that consultation, the claimant complained about right sided lumbar ache, a stiff neck and bilateral frontal headaches occurring at times.[16]
[16] Page 59 of the claimant’s first bundle.
In a consultation with Dr Wallace on 12 March 2019, the claimant complained of some lower back ache and intermittent spasm neck muscle “tightness” at times, and intermittent headaches.[17]
[17] Page 58 of the claimant’s first bundle.
In a consultation with Dr Wallace on 29 August 2019, the claimant reported ongoing problems since the accident with neck soreness and stiffness, constant ache in the mid to lower back, 12 months of progressive increase in ache overlying the acromioclavicular joint in the left shoulder and upper arm, with progressive pain on abduction in the left shoulder.[18]
[18] Page 57 of the claimant’s first bundle.
The claimant was referred for an X-ray of the left shoulder and an ultrasound scan of the left shoulder.
The ultrasound of the left shoulder performed by Dr Yume Kwong on 6 September 2019 concluded that there was no rotator cuff tear but features of mild subacromial bursitis. [19]
[19] Report produced to the Panel on 24 March 2025.
At a consultation with Dr Wallace on 18 November 2019, it was recorded that the (left) shoulder was “still a bit sore but manageable, will leave until after Xmas and then reassess? cortisone.”[20]
[20] Page 56 of the claimant’s first bundle.
On 7 January 2020, the claimant returned for a consultation to further discuss his left shoulder, cervical spine and lower back symptoms. Dr Wallace recommended an ultrasound cortisone injection to the left shoulder.
On 21 September 2020, a clinical note from physiotherapist, Sally Hill, was recorded in the clinical records of Dr Wallace as follows:
“I have seen Brian twice, his shoulder pain seems to be getting worse, and is flared up by exercises that you would expect to be helping. He is very tender on palpation of the infraspinatus muscle belly, and impingement tests are positive. He is keen to get further investigations/referral to specialist. I think he will try to contact you so just thought I'd give you a heads up.”[21]
[21] Page 53 of the claimant’s first bundle.
On 23 September 2020, the claimant consulted Dr Wallace, complaining of ongoing left shoulder symptoms. Dr Wallace noted that there was quite marked impairment of flexion and abduction which would cause considerable disability in terms of work duties. He referred the claimant for further management by orthopaedic surgeon, Dr Morgan Prince.[22]
[22] Page 53 of the claimant’s first bundle.
An MRI of the left shoulder performed on 26 October 2020 reported the following conclusion:
“Near full-thickness to full-thickness, partial width tear extending from the anterior leading edge to mid supraspinatus tendon with mild subacromial bursitis. Rotator cuff muscle belly volume is maintained.”[23]
[23] Page 73 of the claimant’s first bundle.
At a consultation with Dr Wallace on 4 March 2021, the claimant reported that he “was well bar ongoing problems with his shoulder.”[24] The claimant reported that he was on a waiting list for left shoulder surgery and that he was on a 12-month waiting list for surgery in the public hospital system as the insurer was not willing to provide cover under the subject accident. [25]
[24] Page 52 of the claimant’s first bundle.
[25] Page 52 of the claimant’s first bundle.
At a consultation with Dr Wallace on 18 October 2021, the claimant reported that a left rotator cuff repair had been performed to his left shoulder.[26]
Medicolegal evidence
[26] Page 51 of the claimant’s first bundle.
On 24 June 2021, the claimant was examined by orthopaedic surgeon, Dr Peter Giblin.
In his report dated 2 July 2021, Dr Giblin noted on examination, that the left shoulder had definite and moderate adhesive capsulitis.[27] Upon review of the MRI scan of the left shoulder dated 26 October 2020, he noted rotator cuff tendinopathy and subdeltoid bursitis.[28][29]
[27] Page 38 of the insurer’s bundle.
[28] Page 39 of the insurer’s bundle.
Dr Giblin made a provisional diagnosis of soft tissue injuries to the claimant’s neck, low back and left shoulder which he said were reasonably causally related to the motor accident.[30]
RE-EXAMINATION
[30] Page 39 of the insurer’s bundle.
On 8 January 2025, the claimant was re-examined at the Commission’s medical suites by Medical Assessor Moloney on behalf of the Panel. Medical Assessor Moloney’s report now follows.
The claimant attended unaccompanied.
Pre-accident medical history
The claimant stated that he was in good health prior to the accident. He is married and lives with his wife in Leeton.
He had worked as a boilermaker for about 10 years prior to the accident, At the time of the accident, he was the owner/driver of his own taxi and working in a full-time capacity. He states that he had no previous injuries to those assessed today. There was a history of falling off a roof 3 decades ago when he fractured both forearms that were surgically repaired.
History of motor accident
On 15 September 2018, the claimant was driving his taxi and going over a bridge when a car came from the opposite direction colliding with the front driver side section of his car. The other car failed to stop after the accident. The police briefly attended the scene and attempted to pursue the other vehicle unsuccessfully. The claimant drove his taxi home and continued his shift in another taxi.
History of treatment following the accident
The claimant attended Leeton Hospital the next day as he had a nosebleed and aches in both shoulders, neck and low back. At that time, he took one week off work. He then consulted his GP, Dr Wallace who prescribed analgesics and referred him for physiotherapy. At that time, he states that he had persistent neck, low back pain and bilateral shoulder pain which was worse on the left side. He states that the right shoulder continued to improve but the left shoulder became more painful within a month after the accident.
He states that he was referred to a specialist in Griffith who organised two cortisone injections into his cervical spine region. Those treatments were initially beneficial. He was then referred to another specialist in Albury who repeated the cortisone injections in the cervical spine. Those treatments gave him pain relief for several months.
Due to persistent pain in the left shoulder, his GP referred him to an orthopaedic surgeon, Dr Prince. Dr Prince did an arthroscopic repair of the left shoulder which had been delayed by the Covid circumstances and a waiting list. There was some improvement in the left shoulder after the surgery but due to persistent pain, a cortisone injection was performed into the left shoulder which gave minimal benefit. There has been no follow-up in the past year.
There have been no further injuries sustained since the motor accident.
Current symptoms
The claimant has persistent central low back pain which increases with mowing the lawn or flexion and prolonged sitting. There is no radiation of pain into the lower limbs, but he has tingling and numbness in both feet which is secondary to his diabetes.
Neck pain increases with rotation and feels stiff. He is prone to waking at night with neck or shoulder pain. There is a dull anterior left shoulder pain with no referral of pain to the arms. He states that the right shoulder was asymptomatic. He is unable to lie on the left shoulder due to pain. Any heavy lifting increases pain.
The claimant recommenced driving his taxi but retired in December 2023 due to neck and lumbar discomfort whilst driving and an inability to lift heavy bags with his left shoulder.
The claimant sustained a recent infection to his left little finger whilst on holiday which required intravenous antibiotics. He is now a tapering off his oral medication.
Current treatment
Present medication is Panadol (6 tablets a day) and oral medication for diabetes. He consults his GP every three months for a diabetic checkup. No manual therapy is being undertaken.
Clinical examination
The claimant walked into the rooms with a normal gait and sat comfortably during the interview. He states that he is left-handed. His height was measured at 174 cm and weight of 89.8 kg.
Cervical spine
On inspection of the cervical spine there was a normal contour and on testing range of movement flexion/extension was 75% of expected range. Side bending and rotation were 50% of expected range bilaterally with no asymmetry. On palpation, there was tenderness over the left trapezius muscle without guarding or spasm.
On neurological examination of the upper limbs, power was normal with no sensory changes and equal low amplitude reflexes with no asymmetry. No muscle wasting was apparent with the circumferences of the upper arms 28 cm bilaterally (10 cm above the olecranon process) and in the upper forearms 27 cm bilaterally (5 cm below the olecranon process).
Lumbar spine
The claimant walked with a normal gait and was able to stand on his heels and toes. He was able to squat normally. On testing range of movement, flexion/extension was 75% of expected range and side bending and rotation were 80% of expected range with no asymmetry. Straight leg raise on lying was 80° bilaterally and no guarding or spasm was noted in the lumbar musculature on palpation.
On neurological examination of the lower limbs, power was equal bilaterally with no muscle atrophy. The circumference of the lower thighs 39 cm bilaterally (10 cm above the superior patella pole) and at the maximum circumference of the calves 36 cm bilaterally. Reflexes were of low amplitude but equal with no asymmetry. On testing for sensation, there was significant decrease in sensation over both feet which was not dermatomal due to peripheral neuropathy secondary to diabetes.
Shoulders
On inspection of the shoulders, no muscle wasting was noted and there were small arthroscopic portal scars over the left shoulder. Active movements were measured using a goniometer and repeated. On passive movement no crepitus was detected in either shoulder. Passive movement past 100° abduction caused anterior left shoulder pain.
| Shoulder Movements | Active ROM Measured RIGHT | Active ROM Measured LEFT |
| Flexion | 150° | 90°= 6% UEI |
| Extension | 50° | 30°= 1% UEI |
| Adduction | 40° | 30°= 1% UEI |
| Abduction | 150° | 90°= 4% UEI |
| Internal Rotation | 80° | 70°= 1% UEI |
| External Rotation | 80° | 70°= 0% UEI |
CAUSATION AND REASONS
Cervical spine
The claimant referred to the injury in his claim form three weeks after accident. He complained about neck stiffness to his GP, Dr Wallace also three weeks after the accident. Follow up consultations recorded intermittent neck spasm, stiffness and tightness in the neck muscles. The Panel accepts that the claimant sustained an injury to the cervical spine caused by the motor accident. The Medical Assessors of the Panel accept that this was a soft tissue injury with no signs of radiculopathy in the upper limbs to the cervical spine. This is a threshold injury.
Lumbar spine
The claimant complained of low back pain at Leeton Hospital the day after the accident and this was also recorded by his treating GP, Dr Wallace. The claimant referred to the injury in his claim form three weeks after accident. The Panel accepts that the claimant sustained an injury to the lumbar spine caused by the motor accident. The Medical Assessors of the Panel accept this was a soft tissue injury. No signs of radiculopathy have been recorded in the lower limbs since the accident. This is a threshold injury.
Left shoulder
The clinical records of Leeton Hospital show that on the day of the accident, the claimant complained of sore shoulders. The claimant stated to Medical Assessor Moloney that his right shoulder continued to improve and that his left shoulder became more painful within a month after the accident. This is not mentioned in Dr Wallace’s initial consulting notes. The claimant stated to Medical Assessor Moloney that he considered that Dr Wallace was more focussed on his more painful neck and lumbar spine.
On 29 August 2019, Dr Wallace recorded left shoulder pain with tenderness over the left acromioclavicular joint which had progressively increased in the previous 12 months since the accident. Eventually this was investigated by an ultrasound which reported subacromial bursitis and later on a MRI on 26 October 2020, a supraspinatus tear.
In considering whether the supraspinatus tear in the left shoulder was caused or materially contributed to by the motor accident, the Panel notes that the motor accident does not have to be the sole cause if it is a contributing cause, which is more than negligible.
The available evidence shows an absence of any complaint of injury or any treatment of symptoms or conditions to the left shoulder prior to the accident.
The evidence shows that the claimant’s vehicle was hit at speed almost head-on. The photographs of the claimant’s vehicle show damage to the claimant’s driver’s front side and ‘side-swipe’ damage along the driver’s side of the vehicle caused by a vehicle that did not stop. The claimant reported to Dr Wallace that he felt a sudden jolt when the collision occurred. The Medical Assessors of the Panel accept that the forces of the collision could have caused injury to the claimant’s left shoulder.
On the balance of probabilities, the Panel considers that, in view of the absence of pre accident complaint, the likely mechanism of injury and the post-accident history of pain and disability in the left shoulder, that the accident did cause the supraspinatus tear in the left shoulder.
This is a non-threshold injury.
FINDINGS
The Panel conducted a new assessment of all the matters with which the medical assessment is concerned.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: See Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45] and Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21], and [64].
The Panel finds the injury to the cervical spine and the injury to the lumbar spine caused by the motor accident, are threshold injuries for the purposes of the MAI Act.
The Panel finds that the injury to the left shoulder injury - supraspinatus tear, is not a threshold injury for the purposes of the MAI Act.
Accordingly, for these reasons, the Panel revokes the certificate of the Medical Assessor dated 7 December 2023 and issues a replacement certificate which is attached at the commencement of these reasons.
[29] Page 51 of the claimant’s first bundle.
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