Watts v Insurance Australia Limited t/as NRMA Insurance
[2025] NSWPICMP 851
•4 November 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Watts v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 851 |
CLAIMANT: | Margaret Watts |
INSURER: | Insurance Australia Limited t/as NRMA |
REVIEW PANEL | |
MEMBER: | Terence Stern OAM |
MEDICAL ASSESSOR: | Shane Moloney |
MEDICAL ASSESSOR: | Drew Dixon |
DATE OF DECISION: | 4 November 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant injured in a motor vehicle accident; medical dispute as to whether the injuries sustained in the accident were threshold injuries; dispute also arose as to whole person impairment (WPI); Medical Assessor (MA) determined the injury to the left shoulder and scarring was not related to the accident, and the injury to the cervical spine was caused by the accident and was a threshold injury; claimant sought a review of the determination; Review Panel conducted its own examination; Held – Review Panel found the supraspinatus tear to the left shoulder was caused by the accident and was a non-threshold injury; certificate of MA was revoked; Review Panel found that injuries to the cervical spine, left shoulder, and scarring caused by the accident resulted in a combined 19% WPI. |
DETERMINATIONS MADE: | AMENDED CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the decision of Medical Assessor Mohammed Assem dated · supraspinatus tear to the left shoulder was caused by the accident and is a non-threshold injury. 2. The Review Panel revokes the decision of Medical Assessor Mohammed Assem and substitutes the determination to certify that the injuries referred to the Panel and caused by the accident gave rise to a whole person impairment of 19%. |
AMENDED STATEMENT OF REASONS
INTRODUCTION
The claimant, Margaret Watts (Ms Watts) was involved in a motor vehicle accident on
19 May 2022 (the accident) in which she stated that she sustained injury to her left shoulder, cervical spine, and skin.Insurance Australia Limited t/as NRMA (the insurer) was the comprehensive third-party insurer.
A medical dispute has arisen about whether Ms Watt’s injuries were threshold injuries, and this dispute was referred to the Personal Injury Commission (Commission) for assessment.
Medical Assessor Mohammed Assem assessed Ms Watts on 18 February 2025 for the Commission. The Medical Assessor certified on 19 February 2025 that the injuries to the left shoulder and skin (scarring) were not caused by the accident and a determination as to whether they were threshold injuries was not required for the purposes of the Motor Accident Injuries Act 2017 (the Act). Medical Assessor Assem further certified that the injury to the cervical spine was a threshold injury for the purposes of the Act.
Ms Watts lodged an application with the Commission seeking a review of the Medical Assessor’s decision.
On 9 April 2025, a delegate of the President of the Commission determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review. On 12 September 2024, the delegate convened this Review Panel (the Panel) to conduct the Review.
SCOPE OF THE AMENDED ASSESSMENT
According to the “Referral for Assessment to Medical Assessor/s” document, the scope of the dispute was as follows:
· disputes to be assessed:
-threshold injury.
· injuries to be assessed:
-injury to the left shoulder including full thickness tear of the rotator cuff and requiring two surgical procedures;
-injury to the cervical spine including aggravation of pre-existing degenerative changes, and
-skin – scarring surgical scarring.
· disputes to be assessed:
-permanent impairment.
· injuries to be assessed:
-injury to the left shoulder including full thickness tear of the rotator cuff and requiring two surgical procedures;
-injury to the cervical spine including aggravation of pre-existing degenerative changes, and
-skin–scarring surgical scarring.
In the original Medical Assessment, the Review Panel revoked the decision of Medical Assessor Mohammed Assem, dated 19 February 2025 and substituted the determination that:
· supraspinatus tear to the left shoulder was caused by the accident and is a non-threshold injury for the purposes of the Act.
As a result of the revocation of Medical Assessor Assem’s determination, without more, the Review Panel’s Assessment and Determination was incomplete.
The Review Panel failed to assess the injuries which had been referred to Medical Assessor Assem.
The Review Panel accordingly amends this decision so as to deal with and determine all of the disputes which were referred to it.
LEGISLATIVE FRAMEWORK
Jurisdiction
Ms Watt’s claim is governed by the provisions of the of the Act. This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the MAI Act, there are some disentitling provisions and limits to the amount and extent of benefits and compensation available. One of these restrictions is that, this motor vehicle accident having occurred before 1 April 2023, if the only injuries sustained by the injured person are “threshold” injuries, the injured person cannot receive statutory benefits beyond 26 weeks after the accident and cannot recover damages.
Threshold injury
A threshold injury is defined in s 1.6(1) of the Act as 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.”
If a person injured in a motor accident sustains soft tissue injuries only then, unless one of those soft tissue injuries falls within the exclusion contained in s 1.6(2),the injured person’s statutory benefits cease in accordance with
ss 3.11 and 3.28 of the Act.
Section 1.6(4) provides that regulations may be made to deem a specified injury as a soft tissue injury or not a soft tissue injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) says that “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” is a threshold injury.
Clause 5.8 of the Motor Accident Guidelines (the Guidelines) defines radiculopathy and adopts the method of assessment provided for in the whole person impairment (WPI) chapter of Part 6 of the Guidelines. Clause 5.9 then provides:
“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.”
In summary, if the person injured in the car accident sustains a spinal nerve injury this is a threshold injury unless that particular nerve injury manifests in two of the five signs of radiculopathy.
Method of assessment
Part 5 of the Guidelines contain the procedure for assessing whether an injury resulting from the motor accident is a threshold injury for the purposes of the Act. In respect of the medical assessment of whether an injury is a threshold injury or not, 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.”
Clause 5.4 suggests that the method of assessment set out above appears to be directed to the insurer and the medico-legal or other experts retained by the insurer.
There are no other provisions with respect to the assessment of threshold injuries by claimants, their medio-legal experts or Medical Assessors. The Panel is proceeding on the basis that the provisions in Part 5 apply in this Review.
Dispute resolution
If there is a dispute about whether an injured person’s injuries are threshold injuries or not, that matter is declared a medical assessment matter which may be referred to the Commission for determination.
Chapter 7, Division 7.5 of the Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Assem’s, further medical assessments and the Review of medical assessments by this Panel.
Applications for review of a medical assessment under s 7.26 are made to the President of the Commission on grounds that the assessment “was incorrect in a material respect” (s 7.26(1)). If the President, or his delegate is satisfied “there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect” then the President arranges to the application to be referred to a Review Panel consisting of a Member of the Commission and two Medical Assessors (ss 7.26(2) and (2B)).
The review is not necessarily confined to the issues raised in the application (or the reply) but is “a new assessment of all the matters with which the medical assessment is concerned” (s 7.26(3A)).
Rule 128 of the Personal Injury Commission Rules 2021 (the Rules) permits the Panel to determine its own proceedings and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.
ASSESSMENT UNDER REVIEW
Medical Assessor Mohammed Assem examined Ms Watts on 18 February 2025 and issued his certificate on 19 February 2025.
At [2], Medical Assessor Assem confirmed that he was asked to assess injuries to Ms Watts’ left shoulder, cervical spine, and skin (scarring).
Medical Assessor Assem set out a summary of the submissions of the parties at [3]-[4].
He noted the documents considered in his assessment of Ms Watts at [5]-[6].
Medical Assessor Assem set out the pre-accident history at [8], noting that Ms Watts is a
63-year-old right-hand dominant person who lived with her husband. She has three adult children. She described herself as an active individual, engaging in cycling, swimming, and sewing before the accident. She sustained a fall on 17 November 2014, an ambulance attended. She had no loss of consciousness but complained of headache and left shoulder pain. She was advised to rest, take analgesia, and follow up if symptoms persisted. She recalls that she recovered well, returning to swimming and cycling without restriction. Further, the Medical Assessor noted in 2018, Ms Watts recalled experiencing shoulder issues which she suspected may have been a frozen shoulder. She underwent an ultrasound, but she had limited recollection of the findings. She recalled seeing a physiotherapist around that time but is uncertain of the exact reason for treatment. Despite this, she stated that she fully recovered. On 14 January 2021, Ms Watts consulted Dr Poonacha for left cervical spine radiculopathy. A CT scan of the cervical spine was ordered, and follow-up care was advised. In her statement, she recalled developing neck pain in 2021, which she attributed to prolonged use of her sewing machine. She consulted an exercise physiologist, and her symptoms resolved. Ms Watts worked full-time as a sales assistant for 11 years before the accident.At [9], the Medical Assessor recorded a history of the accident, noting that on
19 May 2022, at approximately 8.30am, Ms Watts drove her 2010 Toyota Camry Altise sedan on her way to work. As she approached a red traffic light, she came to a complete stop. While stationary, her vehicle was rear-ended by a Volkswagen sedan. At the time of impact, she had both hands on the steering wheel and her foot on the brake, preparing to move as the light turned green. She said she was unexpectedly struck from behind, causing a sudden jarring motion that affected her neck, shoulders, and arms. The force of the impact left her momentarily disoriented and unable to move, and she remained in place with her eyes closed for a brief period as she attempted to regain composure. Photographic evidence shows minor damage to the rear bumper of her vehicle, consisting of shallow scratches and scuff marks that were difficult to detect on magnification. She reported that her boot sustained damage and could not be opened properly. The airbags did not deploy, and the vehicle remained drivable. She drove to work as she was responsible for opening the store, but soon realised her pain was worsening. She experienced neck discomfort, left shoulder pain, and weakness in her left arm. As her symptoms intensified, she decided to leave work early to seek medical attention.The Medical Assessor recorded the history of symptoms and treatment following the accident. On 19 May 2022, Ms Watts consulted Dr Poonacha, who recorded neck stiffness with mildly restricted range of motion, normal upper limb movements, and no neurological deficits. There was no mention of shoulder complaints.
On 23 May 2022, Ms Watts completed an Application for Personal Injury Benefits form (APIB), which noted “muscle spinal upper and lower back injury” [sic]. When the Medical Assessor enquired about the absence of shoulder complaints in the APIB form, she explained that she was uncertain of the specific pain location at the time, as it affected her entire upper and lower back area.
On 16 June 2022, during a follow-up consultation, she reported an improvement in upper back pain with physiotherapy. However, she was noted to have mild left upper arm radiating pain, though no neurological deficits were observed. In the certificate of capacity, no shoulder pain was mentioned.
On 1 July 2022, she reported that the pain radiated from the neck to the left arm and worsened in the left shoulder, with associated numbness and pins and needles in the left hand. Examination revealed painful arc movements, reduced left arm strength, and weak grip in the left fingers. She was advised to continue light duties and physiotherapy and undergo an MRI of the cervical spine and left shoulder.
On 19 July 2022, an MRI of the left shoulder revealed downward-sloping type 2 acromion with subacromial spurring and acromioclavicular joint arthropathy, causing supraspinatus impingement. There was a near full-thickness tear of the supraspinatus.
On 12 September 2022, she consulted Dr Jai Kumar, orthopaedic surgeon, who suspected a posterior subluxation of the left shoulder. Shoulder flexion was limited to 90 degrees actively, 150 degrees passively, with grade 3 supraspinatus strength. A cortisone injection was recommended along with physiotherapy. Surgical repair was considered if symptoms persisted.
On 6 October 2022, a neurosurgical consultation with Associate Professor Hansen noted subjective pain and weakness, with four plus out of five power in all left upper limb movements. A transforaminal injection at C4- C5 and C5-C6 was recommended, along with a nerve conduction study. By 9 February 2023, a repeat MRI of the left shoulder confirmed an incomplete full-thickness supraspinatus tear (7mm) with moderate bursal fluid and degenerative acromioclavicular joint changes. No tendon retraction was observed. On
15 February 2023, Dr Kumar noted ongoing shoulder complaints despite physiotherapy and anti-inflammatory medication. On 6 June 2023, Ms Watts underwent a rotator cuff repair. On 16-17 October 2023, she experienced left shoulder stiffness secondary to adhesive capsulitis (frozen shoulder), requiring capsular release.At [11], Medical Assessor Assem noted that Ms Watts has not sustained any additional injuries since the accident.
The Medical Assessor set out Ms Watts’ current symptoms at [12], noting she reported constant neck discomfort that fluctuates in intensity from 5-8/10. The pain was predominantly located on the left side, radiating down the vertebral border of the left scapula. She also experienced persistent left shoulder pain, which worsens with certain movements. To manage her pain, she regularly takes Panadol Osteo and Nurofen, though she sometimes avoids medication, believing the pain will subside, only for it to return. She describes tremors along the ulnar border of her left hand and forearm. Additionally, there is slight sensory loss along the ulnar border of her left hand.
Medical Assessor Assem set out his clinical examination at [13]-[14] of his certificate which the Panel reproduces below:
“[13] Range of motion measurements were conducted using a goniometer. Cervical spine (Cervicothoracic) Posture: Her posture appeared normal, with no visible deformities. Tenderness: Tenderness was noted upon palpation, though there was no guarding or muscle spasm. Range of Motion: Her cervical spine movements were limited to approximately three-quarters of the normal range in all planes, including flexion, extension, rotation, and lateral flexion. There was no spinal asymmetry or spinal dysmetria detected. Neurological Examination: Reflexes in the upper limbs were brisk and symmetrical. There was global weakness to her left arm. Sensation remained intact, and there was no significant difference in the circumference of her upper arms or forearms neural tension tests were negative. Upper Extremities Scarring: A scar is present on the left shoulder from previous arthroscopic surgery. The scar is indented and tender to palpation. Active Range of Motion (Degrees):
Movement
Right Shoulder
Left Shoulder
Flexion
160°
90°
Extension
40°
30°
Abduction
170°
80°
Adduction
40°
20°
External Rotation
60°
30°
Internal Rotation
70°
40°
[14] Based on the photographic evidence of vehicle damage, the motor vehicle accident appears to have been relatively minor, with minimal structural impact to Margaret Watts’ vehicle. Given the low-impact nature of the collision, I have difficulty in reconciling the severity and widespread nature of her reported complaints and limitations with the subject accident.”
At [15], the Medical Assessor provided a summary of relevant documentation.
At [17], Medical Assessor Assem set out his diagnosis, causation and reasons which is reproduced below:
“[17] Ms Watts, 63 years old, had a pre-existing left shoulder degenerative rotator cuff tear and was diagnosed with left cervical radiculopathy. On 19 May 2022, she was stationary at a red light when her vehicle was rear-ended. Photographs show very minor damage that was barely visible. She continued on her way to work but later developed symptoms prompting her to seek medical attention from Dr Poonacha. Over the following months, her shoulder and cervical symptoms worsened, leading to … radiological investigations, which confirmed a full-thickness supraspinatus tear and cervical degenerative changes. Despite conservative treatment, including physiotherapy and cortisone injections, she eventually underwent rotator cuff repair surgery, but continued to experience persistent pain, stiffness, and signs adhesive capsulitis requiring a capsular release.
LEFT SHOULDER
Ms Watts has a history of left shoulder pain dating back to 2008, when radiological imaging identified a small degenerative tear in the supraspinatus tendon, along with partial thickness tearing. In 2014, she sustained a mechanical fall, resulting in left shoulder pain, which was managed conservatively. She reportedly made a full recovery. In 2018, she was suspected of having a frozen shoulder and underwent an ultrasound examination. The mechanism of injury from the motor vehicle accident was relatively minor. Ms was wearing a seatbelt over her right shoulder, and the rear-end collision resulted in minimal visible damage to her vehicle. Although she later reported left shoulder complaints, these were not supported by contemporaneous medical records. There was no mention of shoulder pain in her initial general practitioner (GP) records, Certificate of Capacity, or Application for Personal Injury Benefits. Had there been a significant injury to her left shoulder that would have caused, aggravated or exacerbated a pre-existing rotator cuff tear, the symptoms would have been apparent immediately after the motor vehicle accident. The first recorded reference to left shoulder pain appeared in June 2022, when it was documented by her treating physiotherapist. Given her history of prior shoulder complaints, pre-existing pathology, the absence of a plausible mechanism of injury, and delay in reporting symptoms, there is no causal relationship between the motor vehicle accident and her left shoulder symptoms.
CERVICAL SPINE
Ms Watts had pre-existing neck complaints on 14 January 2021, at which time she was suspected of having left cervical radiculopathy and a CT scan of the cervical spine was requested for further investigation. The accident was relatively minor, but it is plausible that she may have sustained a mild whiplash injury. Although her Application for Personal Injury Benefits did not initially reference neck pain, her treating doctor did record muscle pain in the cervical spine on 19 May 2022. This provides reasonable grounds to accept that her cervical spine symptoms were causally related to the accident, likely representing an aggravation of pre-existing degenerative pathology. Although she reported numbness in her left hand, there were no focal neurological deficits at the time of my assessment. That is, she did not meet two or more of the criteria for upper limb radiculopathy. Her condition is classified as a threshold injury to the cervical spine according to the Act.”
At [18], the Medical Assessor noted that the injury to the cervical spine (soft tissue injury) was caused by the accident.
At [19], the Medical Assessor noted that the injuries to the left shoulder and skin (scarring) were not caused by the accident.
At [20], Medical Assessor Assem noted that Ms Watts did not meet two or more of the criteria for upper limb radiculopathy as outlined in the Motor Accident Guidelines (the Guidelines, paragraph 6.138, p. 108). Despite the presence of pre-existing degenerative changes, there was no evidence of a fracture, complete or partial rupture of tendons, ligaments, menisci, or cartilage, or an injury to a nerve root. Therefore, her condition is classified as a threshold injury to the cervical spine according to the Act.
The Medical Assessor concluded at [21]-[22] that the following injury was a threshold injury:
· cervical spine – soft tissue injury;
and the following injuries referred for assessment were determined to not be caused by the accident:
· left shoulder, and
· skin – scarring.
EVIDENCE BEFORE THE REVIEW PANEL
Statement of Ms Watts dated 20 July 2024
The Panel refers to the statement of Ms Watts of 20 July 2024 and reproduces relevant sections:
[12] In about 2005 I had some neck pain and stiffness. I do not recall the circumstances. I was investigated with a CT scan. My neck pain and stiffness resolved.
[13] I spontaneously developed shoulder stiffness in 2008 and I was told I had a frozen shoulder. I do not have diabetes. I was investigated with an X-ray and ultrasound. I had a cortisone injection after which my symptoms resolved.
[15] On 17 November 2014, I had a fall and knocked my head. I have no memory of hurting my shoulder.
[16] I had a neck strain in 2016. I had some neck pain and stiffness but these symptoms resolved.
[17] I developed neck pain again in 2021, which I attributed to extensive use of my sewing machine. I consulted an exercise physiologist and my symptoms subsequently resolved.
[18] I was injured in a motor vehicle accident on 19 May 2022.
[20] The light turned green. I remained stationary waiting for the vehicles in front of me to move off. I had both of my hands on the steering wheel and my right foot on the brake pedal. Whilst I remained stationery, I was struck from behind by another vehicle.
[21] My body was jolted by the impact. I immediately noticed pain in my left shoulder, neck, middle and upper back and both arms.
[26] I saw my GP who referred me to have scans of my neck and shoulder and physiotherapy. I continued working, despite my symptoms.
[28] I was referred to orthopaedic surgeon, Dr Jai Kumar, whom I first consulted on
12 September 2022 regarding my shoulder. Dr Kumar advised deferring any further steps in relation to the shoulder until I had consulted a spinal surgeon about my neck symptoms.
[29] I first consulted spinal surgeon, Associate Professor Mitchell Hansen, on
6 October 2022. Associate Professor Hansen recommended transforaminal injections of C4/5 and C5/6, along with some nerve conduction studies.
[30] On 20 October 2022, I underwent a left C4/5 foraminal injection.
[31] On 27 October 2022, I underwent a left C5/6 foraminal injection.
[32] Both injections provided only temporary relief of my neck symptoms, for about two weeks.
[33] On 16 November 2022, I underwent a nerve conduction study.
[34] On 22 November 2022, I returned to Associate Professor Hansen. Associate Professor Hansen advised me to return to Dr Kumar for further treatment of my shoulder.
[35] I returned to Dr Kumar on 18 January 2023. Dr Kumar recommended surgery.
[36] On 6 June 2023, I underwent surgery with Dr Kumar in the form of a scope of my left shoulder.
[37] On 7 August 2023, I returned to Dr Kumar. Dr Kumar said he was concerned I may have chronic regional pain syndrome and also a frozen shoulder.
[38] On 4 September 2023, I had a further consultation with Dr Kumar. He recommended a further surgery in the form of a capsular release.
[39] On 16 October 2023, the I underwent a capsular release performed by Dr Kumar.
[40] I underwent physiotherapy and rehabilitation. I noticed a significant improvement of my shoulder symptoms from the capsular release after about six weeks.
[41] I returned to work in November 2023.
[43] I continue to have a stiff and sore neck, a stiff and sore shoulder (albeit improved since surgery) and a stiff and sore upper back.
[44] I did not have any significant health concerns prior to the accident.
[51] I rely a lot more on my right arm, particularly when doing any lifting. I am concerned I am going to damage my right arm from overuse.
[53] I used to take Endone and Lyrica everyday to manage my symptoms. I now take a combination of Panadol and Ibuprofen up to three times per day. I try to persevere so far as possible however I am taking this medication most days to get by.
[54] I do not recall having injured my shoulder prior to the motor vehicle accident. I had a frozen shoulder in 2008, however this resolved with treatment.
[55] I have experienced temporary neck pain and stiffness from time to time in the past, prior to the motor vehicle accident.
[56] Immediately prior to the accident I was not having any neck or shoulder problems.
Diagnostic investigation of Dr John Korber, radiologist, of 8 April 2024
The Panel reproduces relevant sections of the report of Dr John Korber of 8 April 2024 below:
“Imaging reviewed
ULTRASOUND 11 July 2008 - I also note in the report of an ultrasound performed in 2008 that back then the claimant had a small attritional tear noted in the most anterior fibres of the supraspinatus tendon measuring 9 x 11 mm in diameter consistent with a partial thickness tear.
SHOULDER MRI 18 July 2022 - I reviewed the MRI of the shoulder and agree with the report. There is a near full thickness tear of supraspinatus which is also shown to be tendonotic and that there was a down sloping acromion.
Opinion
Most patients of the claimant’s age would have some rotator cuff pathology. This is well documented in the literature. It is noted that pre-existing the accident, the claimant already had an attritional anterior tear of supraspinatus in the same position as the current tear.
Given the commonness of rotator cuff findings, it always hinges on the clinical examination and history as to what is relevant rather than the appearance itself. It is noted that Dr Poonacha one month after the accident makes no mention of shoulder pain, in fact stating that the upper limbs are NAD. On the balance of probabilities, it is extremely unlikely that the claimant had a traumatic lesion that was so painful to require surgery but had no symptoms at that time. This might be better asked of one of my clinical colleagues. It is possible, and I suspect that on clinical grounds, there may have been an intervening event.
I did not receive the cervical MRI. I note there is cervical spondylosis. If this were an issue again on clinical grounds I would expect that Dr Poonacha would not have mentioned that there was no radiculopathy.
Specific Questions
In answer to your specific questions and based on the fact that I have only viewed a left shoulder MRI dated 18 July 2022:
NRMA kindly ask for you to correlate the attached medical image findings and other examination results, tests and reports and provide a definitive diagnosis.
There was a pre-existing tear in the same location 14 years prior to the accident in question
We also ask that you provide an opinion on causation of your definitive diagnosis and the degree of the injury if deemed to be caused by an accident-related injury or a preexisting condition.
Based on the clinical record, pre-and post-accident, the claimant did not tear the rotator cuff in the accident.”
Report of Dr Todd Gothelf of 19 August 2024
Examination of the cervical spine:
“The cervical posture was normal. There is positive reported tenderness to palpation of the left paraspinal muscles. There was no visible or palpable deformity in the neck region. There was no observed muscle spasm or guarding. Cervical movement was a fraction of the normal range of motion of ¾ full cervical extension, ¾ full flexion, ¾ full right rotation, ¾ full left rotation, ¾ full right lateral flexion, and ¾ full left lateral flexion. There was no cervical asymmetrical loss of motion.”
Examination of the upper limbs:
“There was a full range of movement of elbows and wrists of both the upper limbs in all dimensions without crepitus, muscular spasm or tenderness. Power, sensation, reflexes, circulation, sweat cover, colour and temperature of both upper limbs were normal and equal. There was no wasting or swelling of the upper limbs, and the circumferential measurements were as follows:
Right
Left
Upper Arm
34cm
34cm
Mid-forearm
28cm
28cm
Active range of motion was measured with a goniometer.
Upper limb
Shoulder
Right (°)
IMP
Left (°)
IMP
Normal (°)
Flexion
160
1
100
5
180
Extension
50
1
30
1
50
Abduction
170
0
110
3
170
Adduction
40
0
20
1
40
Internal rotation
80
0
50
2
80
External rotation
90
0
50
1
60
The left shoulder had a smooth but limited passive motion with good rotator cuff strength and no impingement signs.”
Diagnosis
Margaret Watts is a 63-year-old female who was involved in a motor accident 19 May 2022. As a result of the subject accident Ms Watts has the following diagnoses:
“Cervical spine strain, soft tissue injury, exacerbation of underlying degenerative cervical spine. A cervical spine MRI 18 July 2022 revealed multilevel disc protrusions with left sided foraminal narrowing at C3/4 and C4/5 levels. Ms Watts was treated with physiotherapy and saw a Spine Surgeon and was treated with cortisone injections. Ms Watts reported persistent pain in the neck down the left arm. The physical examination revealed positive tenderness, no guarding, no asymmetrical loss of motion, and no non-verifiable radicular complaints. Left shoulder strain, partial thickness rotator cuff tear, aggravation of preexisting left shoulder rotator cuff tendinopathy. An MRI of the left shoulder 18 July 2022 revealed a bursal surface partial thickness supraspinatus, near full thickness tear. Surgery was performed by Dr Kumar June 2023 for a left shoulder arthroscopy and rotator cuff repair. A second surgery was performed October 2023 for a capsular release. Ms Watts reported persistent shoulder pain with activities. The physical examination revealed a loss of range of motion.”
Prognosis
The prognosis is guarded. Ms Watts reported persistent pain and dysfunction of the shoulder which prevents her from performing duties using the arm at or above shoulder level. The condition is unlikely to change over time.
Opinion whether the accident aggravated pre-existing condition/injuries
There was evidence of a pre-existing left shoulder condition symptomatic in 2008 with evidence of a previous partial rotator cuff tear. I consider that the subject motor accident resulted in a worsening rotator cuff tear and permanent aggravation as the injury resulted in the need for surgery.
There was evidence of a pre-existing degenerative cervical spine which was asymptomatic prior to the subject accident. I consider that the accident resulted in an exacerbation of the underlying condition and Ms Watts had a symptomatic cervical spine.
Assessment of WPI if injuries have stabilised
I have taken into account the claimant’s reported symptoms, the treating doctor’s reports, the radiological evidence, and my clinical findings on today’s medical examination. The Guidelines (10 November 2023) state “The Evaluation should only consider the impairment as it is at the time of the assessment” (paragraph 6.21).
The determination as to permanent impairment for all accidents from 1 December 2017 is made in accordance with the Guidelines, (10 November 2023) which references the American Medical Association’s Guides to the Evaluation of Permanent Impairment, fourth edition (AMA 4 Guides):
“Cervical spine
Table 73 p 110 AMA 4 is used. A DRE category I applies as there was cervical spine tenderness but no guarding and no asymmetrical loss of motion. Ms Watts reported radicular symptoms of pain down the left arm. However, according to the definition of nonverifiable radicular complaints, her symptoms do not meet the criteria as the symptoms must follow a specific nerve root. In this case there were symptoms that were more general and not specific to a specific nerve root. Thus a 0% WPI applies.
Left upper extremity (shoulder)
Figures 38, 41, 44 pp 43-45 AMA 4 are used for shoulder impairment. The measured active range of motion resulted in a 13% UEI on the affected shoulder and 2% UEI on the unaffected shoulder. As per section 6.51 p 91 MA Guides, the right “normal” shoulder impairment can be subtracted from the affected side as I would expect the pre-injury ranges to be similar. 13% - 2% = 11% UEI. Table 3 p 20 AMA 4 Guides is used to convert 11% to 7% WPI.
Deductions
There was no evidence of a pre-existing left shoulder problem and therefore no deductions were made. There was a history of a shoulder pain and frozen shoulder 2008 which full recovered without problems. The history did not specify which shoulder.
Skin
Table 6.18 p 132 MA Guides is used. The scars from surgery were healed, Ms Watts was conscious of the scars, there was good colour match, Ms Watts is able to locate the scars, there were no trophic changes, there was a minor contour defect, the anatomic location is not usually visible with clothing. I consider that a 1% WPI is reasonable.
Combining
Cervical spine
0%
Left UE
7%
Skin
1%
Combining 7%, 1%, 0% yields 8% WPI.
The Final Whole Person Impairment is 8% WPI.”
Application for Personal Injury Benefits dated 23 May 2022
In the Application for Personal Injury Benefits dated 23 May 2022, Ms Watts recorded the accident: “While waiting for red light to turn green, car ran into the rear end of my vehicle.”
Ms Watts reported injuries to her “Muscle, spinal, upper & lower back.”
Biomechanical report of Michael Griffiths dated 27 June 2024
In a biomechanical report dated 27 June 2024, Michael Griffiths assessed the accident dynamics and potential injury mechanisms. He reviewed vehicle damage, collision forces, and occupant movement to determine whether the accident conditions were capable of producing the claimed injuries. Mr Griffiths noted that photographic evidence of the vehicles involved showed minimal structural damage, indicating that the impact forces were low. He analysed delta-V (change in velocity) calculations, concluding that the force imparted to
Ms Watts’ vehicle was insufficient to generate significant biomechanical loading on the occupant. The report emphasized that rear-end collisions at low velocity typically result in minor soft tissue strain rather than structural damage to musculoskeletal components.
Mr Griffiths further noted that the accident severity fell below thresholds commonly associated with traumatic rotator cuff tears.
Report of Dr Jonathan Negus of 1 July 2024
The Panel refers to the report of Dr Jonathan Negus of 1 July 2024 and reproduces the relevant sections below:
Current symptoms
Cervical spine - She gets continued aching and pain into the shoulder blades, worse on the left side. She still has some stiffness on neck rotation and pain going into the left arm.
Left Shoulder - She struggles to lift her left arm above shoulder height and gets some tingling in the ulnar nerve innervated fingers of the left hand.
She has no issues with her lumbar spine.
Current treatment
She takes Panadol and ibuprofen regularly, has remedial massage regularly and also sees a physiotherapist every two to three weeks.
Prior disease/condition/injury
She has had a number of complaints of neck and shoulder pain in the past:
· the letter of instruction states that there was a CT scan of her neck in 2005;
· a neck strain in 2016, and
· a neck strain in 2021 which she felt was from the use of a sewing machine, but she saw an exercise physiologist and it all resolved.
There was also some talk of a frozen shoulder in 2008 which was resolved by a cortisone injection.
Capability/disability
Home chores - She struggles a bit with her personal care but manages her shoulder, needing to use her right arm to wash and get behind her back due to stiffness in the shoulder. When it comes to domestic chores, she is mainly limited by her neck as well as her left arm, needing to use a stick vacuum rather than her old vacuum and she also struggles getting clothes high on the line but she can lift her left arm up with her right arm to get into position. Her lifting limit is 5kg.
Previous compensable injuries - There have been none.
Examination
Shoulder examination - She had a lateral deltoid scar which had a little bit of adherence to the underlying structures, was a little widened and also had some colour change. It was obvious with normal clothing. There was no tenderness around the shoulder with some tenderness over the clavicle. Her active range of motion in the shoulders as measured with a goniometer is as follows:
She did have some weakness of supraspinatus on the left with all other rotator cuff muscles intact.
Right
Left
UEI %
Flexion
180°
12p°
4
Extension
50°
10°
2
Abduction
180°
95°
4
Adduction
50°
40°
0
Internal rotation
90°
50°
2
External rotation
90°
50°
1
ADDED
13%
Cervical spine - She had no scarring and no central tenderness. She was tender a little over the left paraspinal muscles with no guarding or spasm. She had mild stiffness in rotation. Her upper limb neurology was normal.
Prognosis
My prognosis is guarded. She had relatively minor appearing impact which has exacerbated her pre-existing conditions, and she is still taking a long time to recover from the injuries.
Pre-existing injuries
She had pre-existing arthritic changes within the neck as well as pre-existing degenerative changes to the soft tissues within her left shoulder. The motor vehicle accident aggravated both issues including the rotator cuff tear to the left shoulder and the nerve compression of the cervical spine.
Assessment of WPI
Shoulder ROM impairment
· figures – 38, 41, 44;
· 13% UEI = 8% WPI, and
· deduct 1/10th for pre-existing – 8 MINUS 0.8 – 7.2 – 7%.
Cervical spine
· DRE category II for minor impairment – nonuniform loss of range of motion;
· 5% WPI;
· deduct 1/10th for pre-existing – 5 MINUS 0.5 – 4.5 – 5%;
· TEMSKI = 1%, and
· shoulder scar obvious with normal clothing, colour contrast and she is aware of it.
7 COMBINE 5 COMBINE 1
WPI = 13%.
Report of Dr Jai Kumar, orthopaedic surgeon, dated 12 September 2022
The Panel refers to the report of Dr Kumar of 12 September 2022 and reproduces the findings below:
“She has engaged Liz Fitzgerald from Belmont Physiotherapy, who is doing her best to try and regain strength and range of motion. The shoulder seems to go quite well but as soon as any manual therapy occurs around the neck, it causes Margaret quite a lot of pain and discomfort. Margaret has no previous history of left shoulder or neck pathology. Her past medical history is noted.
On examination today, she is a healthy and well muscled female. She has minimal tenderness around the midline of her neck though some tenderness along the lateral paraspinal musculature. She is tender along her bicipital groove and over her subacromial bursa. Forward elevation is active to 90 degrees and this can be passively corrected with pain to 150 degrees. She retains grade 3 power of supraspinatus. External rotation is symmetrical to 30 degrees with grade 5 power of infraspinatus. Internal rotation is to the buttock with grade 5 power of the subscapularis. The biceps mechanism is irritable with a positive Speed's test. There is no evidence of capsulitis or arthritis.
I have gone through her MRI of both her cervical spine and her shoulder performed at Hunter Imaging Group. Her MRI of her cervical spine shows foraminal stenosis which I understand she is seeing Dr Hansen for on 05 October 2022. Her MRI of her left shoulder shows a full thickness tear of the supraspinatus muscle.
I think the priority for Margaret really has to centre around management of her cervical spine. I would like to proceed to an image guided cortisone injection to her left shoulder and would like her to continue physiotherapy with Liz while she catches up with Dr Hansen to see whether there is any management required of her neck. Once Mitch feels that he has optimised Margaret's neck, if she is still getting the shoulder symptoms then I will see her again to discuss the potential options with her shoulder. I am hopeful that the cortisone injection and physiotherapy will settle down her left shoulder and we can avoid surgery. If it is not the case then she will be a good candidate for rotator cuff repair.”
MRI of the cervical spine by Dr Mark Fiorentino dated 22 August 2025
The Panel refers to the cervical spine MRI by Dr Fiorentino of 22 August 2025 and reproduces the findings below:
“FINDINGS: The craniocervical junction is normal and there is normal cord signal. At C3-C4, there is a small disc-osteophyte complex and left facet joint degenerative disease with minimal spinal canal narrowing. The re is severe narrowing of the left neural exit foramen. At C4-C5, there is a small disc-osteophyte complex with minimal spinal canal narrowing. Moderate narrowing of the neural exit foramina bilaterally. At C5-C6, there is a minimal disc-osteophyte complex with no narrowing of the spinal canal or neural exit foramina. At C6-C7, there is left uncovertebral degenerative change with minimal spinal canal narrowing. Mild narrowing of the left neural exit foramen. Anterior and posterior paravertebral soft tissues are unremarkable.
COMMENT: Degenerative cervical spine changes as described, worst at C3-C4 on the left.”
Report of Associate Professor Mitchell Hansen dated 6 October 2022
The Panel refers to the report of Associate Professor Hansen of 6 October 2022 and summarises its findings below:
“She describes a pain that emanates down her left arm with some pian in the posterior aspect of her head and scalp pain and then from her posterior shoulder blade into the lateral arm and don the lateral aspect of her hand to the proximal to the base of the thumb. She notices flares of her pain when she is trying any fine motor skills such as opening jars. She has managed so far with non-steroidals and Panadol Osteo to limited effect. Physiotherapy has been engaged similarly to limited effect.
Examination – She feels some subjective pain and weakness and certainly on examination seem to match up with what was effectively 4+ out of 5 power through all movements of her left upper limb.
Investigations – A MRI from HIG does seem to demonstrate a degree of left C5/6 foraminal stenoses as well as an element of this at C4/5.
Treatment/recommendations – To explore further the delineation of the arm and neck symptoms, I’ve asked her to undergo a transforaminal injection at both the C4/5 and C5/6 levels as well as nerve conduction studies at the same time.”
Nerve conduction study by Associate Professor Mitchell Hansen dated 16 November 2022:
“Findings – APB and ADM were unremarkable. Radial, Median and Ulnar sensory were normal in amplitude and velocity. F waves were within normal limits. This was a normal study with no evidence of large fiber peripheral neuropathy.”
MRI of the left shoulder dated 9 February 2023:
“Findings - Glenohumeral alignment is normal. No evidence of fracture or dislocation. Biceps tendon intact. There is a small biceps sheath effusion. There is an incomplete full thickness tear supraspinatus measuring 7mm. There is extensive partial thickness tear involving the rest of the supraspinatus. No evidence of tendon retraction. No evidence of atrophy. Infraspinatus intact. Subscapularis mildly tendinopathic but appears intact. There is a moderate amount of fluid in the bursa. AC joint shows moderate degenerative changes.
Summary - Incomplete full thickness tear supraspinatus without evidence of retraction. Background of quite marked bursal thickening.”
MRI of the cervical spine dated 18 July 2022:
“There is loss of the normal cervical lordosis but no destructive lesion, paravertebral mass or slip. The disc spaces are relatively well preserved. At C2-3, no disc or neural compromise.
At C3-4, small central disc protrusion. No canal stenosis. Left uncovertebral and facet joint arthropathy causing left foraminal stenosis and mild foraminal left C4 nerve root compromise.
At C4-5, minor broad-based disc bulge. Mild left foraminal narrowing due to uncovertebral and facet joint degeneration. Minor left C5 foraminal nerve root compromise.
At C5-6, mild disc bulge. Once again, mild foraminal narrowing due to uncovertebral and facet joint degeneration. No definite nerve root compression.
At C6-7, left-sided disc osteophyte complex. Mild left thecal sac compromise. No cord or nerve root compression. At C7-T1, no disc or neural compromise. No abnormal cord signal. CONCLUSION: Left foraminal neural compression as described.”
SUBMISSIONS
Claimant’s submissions dated 19 August 2024
The Panel summarises the submissions of Ms Watts dated 19 August 2024 by reference to paragraph numbers below:
Background
[1]-[5] Ms Watts sets out the history of the accident and the alleged injuries she suffered to her left shoulder and neck, as well as psychological injuries.
[6]-[7] Ms Watts promptly sought treatment and was referred to Dr Kumar, orthopaedic surgeon, and Associate Professor Hansen (neurosurgeon). Dr Kumar diagnosed a complete tear of the left supraspinatus tendon, which he attributed to the accident.
[8] Ms Watts continued to work until she underwent surgery with Dr Kumar on
6 June 2023.[9] Her recovery was complicated by adhesive capsulitis and chronic regional pain syndrome (CRPS). She underwent further surgery on 16 October 2023, which improved, though did not fully resolve, her symptoms.
[10] Ms Watts has since returned to part-time work.
[11] Liability, so far as breach of duty of care is concerned, is not disputed by the insurer.
Threshold injury
[12]-[13] The insurer disputes that Ms Watts has sustained a non-threshold injury and relies on a report by Dr John Korber (8 April 2024), who opines her shoulder pathology pre-existed the accident.
[14]-[15] Ms Watts submits Dr Korber’s opinion should not be accepted. She relies on her treating records and the opinion of her expert, Dr Jonathan Negus, orthopaedic surgeon.
[16]-[17] Ms Watts submits there was a pre-existing rotator cuff tear, but it was small and incomplete, and that the radiology suggests the tear progressed to a complete or near-complete tear following the accident.
[18] Ms Watts refers to s 1.6 of the Motor Accident Injuries Act 2017 which defines ‘threshold injury’
[19] Ms Watts submits on the balance of probabilities, the accident likely caused the incomplete tear to worsen, thereby rendering the injury non-threshold.
[20] Ms Watts was stationary at the time of the low-speed impact. She had her foot on the brake and hands on the wheel.
[21] Dr Kumar opined on 7 March 2023 that even a low-speed impact could have caused the injury.
[22] Ms Watts submits she had no shoulder symptoms prior to the accident.
[23]-[24] Ms Watts reported shoulder and upper arm pain to her GP and physiotherapist shortly after the accident, supporting that the rotator cuff tear was caused or worsened by the accident. In the alternative, Ms Watts submits the pre-existing tear was rendered symptomatic by the accident.
[25] Further, she submits the surgery, particularly the incision through the skin and bone resection, constitutes a non-threshold injury, due to alteration of bodily tissue.
[26]-[27] Ms Watts refers to the operation reports of 6 June 2023 and 17 October 2023. She notes she also suffered CRPS and adhesive capsulitis, which have since resolved.
Insurer’s reply submissions dated 27 August 2024
These submissions made by the insurer are in regard to the matter being referred to the stood over list and are not set out by the Panel in this certificate.
Insurer’s reply submissions dated 10 September 2024
The Panel summarises the submissions of the insurer dated 10 September 2024 by reference to paragraph numbers below:
Pre-existing conditions
[19] The insurer submits Ms Watts had a left shoulder injury from a fall in 2014.
[20] Ms Watts also had a history of left cervical spine radiculopathy in 2021.
[21] Imaging reflects historical complaints of back and arm pain, paresthesia, shoulder tear, and multilevel disc protrusions.
Medical evidence
[22] Dr Poonacha, GP diagnosed back injury from the accident in a certificate dated
19 May 2022.
[23] Ms Liz Fitzgerald physiotherapist, noted diagnoses of neck whiplash, shoulder pain, and lower back pain on 20 June 2022.
[24] On 29 July 2022, Dr Poonacha diagnosed motor vehicle accident back injury, left cervical radiculopathy, and left shoulder pain.
[25] Dr Jai Kumar, orthopaedic surgeon, noted a full-thickness supraspinatus tear in his 12 September 2022 letter, as well as limited shoulder mobility.
[26] Associate Professor Hansen, neurosurgeon, examined Ms Watts in October 2022 and recommended transforaminal injection of both C4/5 and C5/6 levels and nerve conduction studies.
[27] Nerve conduction studies from 16 November 2022 showed normal study.
[28] On 22 November 2022, Associate Professor Hansen confirmed improvements post-injection and attributed the shoulder pain to joint pathology consistent with MRI findings.
[29] On 18 January 2023, Dr Kumar described a traumatic rotator cuff tear and a poor prognosis without surgical repair.
[30] A 9 February 2023 MRI of Ms Watts showed an incomplete full-thickness tear supraspinatus and bursal thickening.
[31] On 15 February 2023, Dr Kumar advised surgery due to ongoing pain and functional limitation.
[32] On 7 March 2023, Dr Kumar confirmed the rotator cuff tear was caused by the accident and that surgery was required due to exhausted non-operative options.
[33] Ms Watts underwent rotator cuff, capsulitis, biceps tendinopathy, subacromial bursitis with subacromial impingement on 6 June 2023.
[34] Post-surgery, Ms McGrath, exercise physiologist, noted limited improvement as of 3 August 2023.
[35] On 7 August 2023, Dr Kumar observed signs of CRPS and frozen shoulder.
[36] Mr Stockley, physiotherapist, provided an Allied Health Recovery Request Number 1 for physiotherapy on 9 August 2023 and diagnosed left shoulder rotator cuff repair.
[37] On 4 September 2023, Dr Kumar recommended arthroscopic capsular release due to severe adhesive capsulitis and CRPS.
[38] The procedure was performed on 17 October 2023.
[39] A case summary on 13 November 2023 noted gradual improvement post-surgery.
[40] On 20 November 2023, Dr Kumar confirmed excellent pain relief and range of motion recovery.
Physical injuries
[44] The insurer disputes that Ms Watts sustained non-threshold physical injuries.
[45] The insurer submits that the injuries fall within the definition of threshold injury under:
(a)section 1.6(2) of the Act;
(b)clause 4 of the Regulations, and
(c)the Guidelines.
[46] The insurer submits there is no evidence of injury to nerves, or complete or partial rupture of tendons, ligaments, menisci, or cartilage.
[47] The Guidelines require diagnosis based on clinical assessment. The insurer submits that no treating provider diagnosed a spinal nerve root injury. Radiculopathy assessment was essential but not satisfied.
[48] The insurer submits that Ms Watts’ medical records do not show two or more clinical signs consistent with radiculopathy as required under cl 5.8.
[49] The insurer concludes that Ms Watts' physical injuries are threshold injuries as defined in the Act.
Insurer’s submissions dated 24 October 2024
The Panel summarises the submissions of the insurer dated 24 October 2024 by reference to paragraph numbers below:
Background
[10] Her Application for Personal Injury Benefits (dated 23 May 2022) listed muscle and spinal injuries but no ambulance or hospital treatment. She reported no pre-existing issues at the time.
Pre-Existing Conditions
[11]-[13] Ms Watts had a fall in 2014 with left shoulder pain. She has a history of left cervical spine radiculopathy in 2021. Imaging shows back pain, left arm pain and paraesthesia, a shoulder tear, and cervical spine disc protrusions.
Medical evidence
[14]-[32] Please see [22]-[40] of the insurer’s submissions dated 10 September 2024.
[33]On 27 June 2024, Mr Griffiths concluded in his biomechanical Report that impact speed was under 5kmph and the injuries were not consistent with such low-impact force.
[34] On 8 April 2024, Dr Korber provided a medico-legal report which found no clear traumatic shoulder injury post-accident and noted the tear existed prior. He stated it was highly unlikely such a painful tear requiring surgery would go unnoticed.
[35] On 6 August 2024, Dr Gothelf assessed Ms Watts physical WPI at 8%, below the 10% threshold.
Submissions
[38] The insurer submits as per Dr Korber’s opinion, that the rotator cuff tear was
pre-existing and not caused by the accident.
[39]The insurer submits that based on all available medical evidence, Ms Watts physical WPI does not exceed the 10% threshold.
Claimant’s submissions dated 26 November 2024
The Panel summarises the submissions of Ms Watts dated 26 November 2024 in respect of the biomechanical report of Mr Griffiths below:
[1]-[3] Ms Watts refers to the late report of Mr Griffiths dated 27 June 2024, served by the insurer and submits that Mr Griffith’s opinion that the forces involved in the accident could not have caused her any injury is flawed.
[4] Ms Watts sets out her allegations of injury (paragraphs 19 to 27) from her Submissions of 19 August 2024 for context:
“19. On the balance of probabilities, the force of the accident caused an incomplete tear to become a complete tear, or at least a more substantial incomplete tear, thereby satisfying the non-threshold criteria.
20. Although the accident occurred at a low speed, at the moment of impact the claimant had her foot on the brake pedal and hands on the steering wheel.
21. The treating surgeon, Dr Kumar, accepts that a low-speed impact could cause the plaintiff's injury (report 7 March 2023). Dr Kumar opines the accident caused progression of the rotator cuff tear (report
14 August 2024).
22. The claimant states she had no shoulder symptoms prior to the accident.
23. Shortly after the accident the claimant reported upper arm and shoulder pain to her GP and physiotherapist. This supports a finding she has suffered a complete tear, or worse partial tear, from the forces of the accident.
24.Further or alternatively, the pre-existent tear has been rendered symptomatic.
25. Further and alternatively, the surgery performed by Dr Kumar for the signs and symptoms arising from the accident, renders the injury non-threshold. At a minimum there has been an incision through the skin, an organ. Further Dr Kumar performed an acromioplasty involving resection of bone. There has also been alteration to the tissues of the shoulder.
26. The claimant refers to the operation report of 6 June 2023 in full. The claimant also refers to the operation report of 17 October 2023.
27. Finally the claimant notes she suffered from chronic regional pain syndrome and adhesive capsulitis, since resolved.”
[6] Ms Watts submits that Mr Griffiths' assumptions are erroneous and that in her statement, she describes a ‘visible dint in the rear bumper’ and that the ‘boot would not open and close normally.’
[7] Ms Watts submits that this casts doubt on the accuracy of
Mr Griffiths’s conclusions about the forces involved. Ms Watts submits that he failed to consider her account of the accident as per paragraphs [20] and [21] of her statement.
[8] Ms Watts refers to Mr Griffiths' report on page 267 that the energy was insufficient to cause violent motion or abnormal pathology. He suggests her injuries are degenerative or from another incident.
[9] Ms Watts submits that Mr Griffiths failed to consider her full account of the accident, including that she was jolted at impact.
[10] Ms Watts submits she has not been involved in any other accidents, and the insurer has provided no evidence that she has been involved in any other accidents.
[11] Ms Watts acknowledges her pre-existing conditions but submits they were aggravated by the accident, as outlined in her 19 August 2024 submissions.
[12] Mr Griffiths reports on page 277 that the vehicle damage was limited to a scuff mark.
[13] Ms Watts submits this is inconsistent with her description of damage.
[14] Ms Watts refers to various studies summarised by Mr Griffiths (pages 301–307) and notes the studies themselves have not been provided.
[15] Mr Griffiths reported that the low-level forces in the accident could not have caused injury.
[16] Ms Watts submits that such studies are generalisations, failing to account for those in the minority who are injured at low speeds. She submits she is one such person.
[17] Ms Watts submits these studies do not consider her individual circumstances, including pre-existing vulnerabilities. She submits that Mr Griffiths dismisses her injuries as purely pre-existing.
[18] Ms Watts refers to page 313 of the report which lists documents reviewed by Mr Griffiths. She submits he did not consider expert reports from Dr Gothelf, Dr Negus, or Dr Kumar, all of whom conclude she was injured in the accident. She further submits Mr Griffiths strayed beyond his biomechanical expertise in analysing her symptoms against medical records and drawing factual conclusions.
[19] Ms Watts submits Mr Griffiths made a number of inaccurate assumptions and that his opinion should be treated with great caution. She further submits that Mr Griffiths failed to consider the opinions of three orthopaedic surgeons, the possibility that she falls within the minority injured in low-speed accidents, and the role of pre-existing conditions in predisposing her to further injury.
Insurer’s reply submissions dated 1 April 2025
The Panel summarises the reply submissions of the insurer dated 1 April 2025 by reference to paragraph numbers:
[1] Ms Watts submits the grounds for review are:
(a)confined to the left shoulder only;
(b)the Medical Assessor did not apply the correct causation test under the Guidelines;
(c)the Medical Assessor failed to consider relevant matters;
(d)the Medical Assessor considered irrelevant matters, and
(e)the Medical Assessor's conclusions are inconsistent, amounting to either error on the face of the record or failure to provide adequate reasons.
[2] Ms Watts submits the Medical Assessor failed to address her claim that the accident worsened her pre-existing shoulder condition.
[3]-[4] The insurer submits the Medical Assessor addressed this on page 11 of his certificate, stating the mechanism of injury from the motor vehicle accident was relatively minor; reports of left shoulder complaints were not supported by contemporaneous medical records; had there been a significant injury to her left shoulder that would have caused, aggravated or exacerbated a pre-existing rotator cuff tear, the symptoms would have been apparent immediately after the motor vehicle accident; and the first recorded reference to shoulder pain was in June 2022. The Medical Assessor concluded there was no causal relationship given the absence of contemporaneous complaints, pre-existing pathology, and a lack of plausible mechanism of injury. The insurer submits the Medical Assessor clearly considered and explained why he rejected aggravation as a cause of Ms Watts's symptoms.
Failure to Consider Relevant Considerations
[5]-[6] Ms Watts submits the Medical Assessor failed to consider expert opinions from Dr Negus and Dr Kumar. The insurer refers to page 3 of the Commission’s certificate, where the Medical Assessor states he considered all documents provided.
[7]-[8] The insurer refers to Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43, which confirms there is no onus on the Medical Assessor to refer to another doctor’s opinion and why they do not agree with it. The insurer submits the Medical Assessor is not required to explain why he did not adopt another doctor’s opinion.
[9]-[10] The insurer submits the Medical Assessor’s function is to form an independent medical opinion using his own expertise, not to arbitrate between competing opinions. The insurer submits the Medical Assessor is not obliged to list every document considered.
[11]-[13] Ms Watts submits the Medical Assessor relied solely on a lack of contemporaneous shoulder symptoms. The insurer submits the Medical Assessor considered multiple factors: pre-existing injury, pathology, lack of plausible mechanism, and delay in symptom reporting. The insurer submits the Medical Assessor properly addressed causation and provided a clear rationale for his conclusion.
Taking irrelevant considerations into account and incongruity
[14] Ms Watts submits the Medical Assessor failed to identify an alternative cause of her symptoms.
[15]-[16] The insurer submits the Medical Assessor is not required to identify a competing cause, only to determine whether the claimed injury is causally related to the accident. Once the Medical Assessor ruled out causation and gave his reasons, he was not required to speculate on other causes.
[17]-[18]Ms Watts submits the Medical Assessor should not have relied on
Dr Korber or Mr Griffiths. The insurer submits disagreeing with those opinions does not constitute material error, nor did the Medical Assessor err in referring to them.
[19] The insurer submits the Medical Assessor fulfilled his obligations and provided a proper explanation of causation and his conclusions.
Conclusion
[20]-[24]The insurer submits Medical Assessor Assem did not make any material error and that the assessment was conducted in accordance with the Act and the Guidelines. The insurer submits there is no basis to refer the medical assessment to a Review Panel and the application for review should be dismissed.
Claimant’s submissions dated 4 April 2025
These submissions made by Ms Watts are in regard to the matter remaining in the stood over list and are not set out by the Panel in this certificate.
MEDICAL EXAMINATION BY THE REVIEW PANEL OF THRESHOLD INJURY
On 27 June 2025, Medical Assessor Shane Moloney examined Ms Watts on behalf of the Panel. His findings are set out below.
Pre-accident history
Ms Watts lives with her husband and has three adult children. She states that prior to the accident, she had been working as a permanent part-time worker. This was for 16 hours a week in a furniture store. This involved sales and occasional movement of sofas and rugs et cetera. Prior to the accident she states she was a regular walker who also engaged in cycling and swimming and sewing.
There was apparently an injury to the left shoulder with a supraspinatus tear in 2008 but she is unsure of the details. In 2014, Ms Watts sustained a fall in the street landing on the left shoulder. At that time, she consulted her GP with headaches and left shoulder pain.
In 2018 there was a recurrence of left shoulder pain when she was diagnosed as having a frozen shoulder and underwent an ultrasound. She states that physiotherapy at that time led to a full recovery.
In January 2021 there was a development of neck pain with radiation down the left arm. A CT of the cervical spine was ordered at that time and Ms Watts attributed this pain due to excessive use of the sewing machine. She states that she consulted an exercise physiologist with resolution of symptoms and continued to work part-time.
History of motor accident
On 19 May 2022, Ms Watts was driving on the way to work and stationary at a set of lights when hit from the rear. She was wearing a seatbelt but airbags were not deployed. She considers this was a massive impact which left her feeling shocked and shaky and she sat in the car for a while to recollect her thoughts. She then drove into a side road and exchanged details with the other driver. She then proceeded to drive to the furniture shop to open up for the day but due to pain then went to her GP. The police and ambulance did not attend the scene.
At the time of the accident, Ms Watts said that she had a headache, neck pain and left shoulder pain.
History of symptoms and treatment following the motor accident
Ms Watts consulted her GP, Dr Poonacha on the day the accident when he recorded neck stiffness with no abnormalities in the upper limb movements and referred her for physiotherapy. In a follow-up consultation on 16 June 2022, her GP reported mild left upper arm radiating pain with no neurological signs. Next consultation was on 1 July 2022. At this time, her treating GP recorded left arm pain radiating from the neck worst pain in the left shoulder with associated numbness and pins and needles in the left hand. Her GP referred to a neurosurgeon, Associate Professor Hansen and an orthopaedic surgeon
Dr Kumar. The neurosurgeon organised two cortisone injections of the cervical spine which both gave relief of pain for two weeks. He then decided that the pain was coming from the shoulder and hence referred her to Dr Kumar.
On 12 September 2022, Dr Kumar suspected a posterior subluxation of the left shoulder and recommended cortisone injections. An MRI of the left shoulder dated 18 July 2022 reported a bursal surface partial-thickness tear of the supraspinatus, near full-thickness with no labral tear.
Dr Kumar undertook a rotator cuff repair on 6 June 2023 but subsequent to this procedure, Ms Watts developed a frozen shoulder. On 17 October 2023, Dr Kumar undertook a capsular release which gave some improvement to range of movement and pain.
Current symptoms
At present, Ms Watts has persistent left-sided neck pain and in the last two months has developed pain and spasms radiating down the left arm. She notices spasm in the anterior chest wall, neck and shoulder and gets relieved by rotating her head to the right.
She gets tremor and pins and needles in the left little and ring fingers which increases with excessive use such as cleaning. The right arm is asymptomatic.
She gets occasional tightness in the intrascapular region. Due to shoulder restrictions, she has difficulty doing over arm swimming but can dog paddle and walk freely. She continues to drive and works 16 hours per week at the same job. She has noticed that she gets ‘brain fog’ with difficulty concentrating at work.
Ms Watts continues to live with her husband who helps with the cleaning and cooking. They now sleep in separate rooms due to her constantly getting up and down during the night.
Present treatment
Present medication is Panadol osteo and ibuprofen two of each four times a day. She consulted her GP when necessary and has no follow-up with any specialist organised. She continues to have physiotherapy to the neck and shoulder every fortnight and this is self-funded.
Discussion
Ms Watts considers that there was a significant impact with the accident despite the minimal damage to her car.
The main issue is a supraspinatus tear in the left shoulder. There was apparently a small tear in 2008 and a more significant tear on the MRI after the accident. Dr Korber, a radiologist considered that it was unlikely that the left shoulder sustained a tear due to the motor vehicle accident.
It is difficult to determine whether the accident caused an aggravation of a pre-existing degenerative tear of the left supraspinatus tendon. Medical Assessor Assem considered that due to the minimal impact in the accident and the fact that left shoulder pain was not recorded until a month after the accident that they were not related.
The Panel refers to paragraph [21] of Ms Watts statement, in which she says that her body was jolted by the impact and that she “immediately noticed pain in [her] left shoulder, neck, middle and upper back, and both arms.”
The Panel has no reason to conclude that Ms Watts was lying in giving this account.
The pre-accident GP clinical notes, which have been made available on Pathway and have been considered by the Panel, do not demonstrate any evidence of treatment of or symptoms of a pre-existing shoulder condition which would explain the subsequent full-thickness tear.
Medical Assessor Assem noted at [26] above that Ms Watts recalled in 2008 she was experiencing shoulder issues which she suspected may have been a frozen shoulder. She did undergo an ultrasound at that time.
The Panel notes that the ultrasound investigation was reported as follows:
“Ultrasound Left Shoulder
Report
The biceps tendon is normally positioned within the groove. No abnormality is seen in relation to the subscapularis. A small attritional tear is noted in the most anterior fibres of the supraspinatus tendon measuring 9 x 11 mm in diameter consistent with a partial thickness tear. The bursa is of normal thickness.
Abduction was quite painful and restricted but external rotation had normal range. The infraspinatus is normal in appearance.
Comment
Small partial thickness tear of the anterior fibres of the supraspinatus tendon, otherwise normal study.”
It is noted that the Medical Assessor at [27] recorded a history of the accident, including that Ms Watts had both hands on the steering wheel and her foot on the brake when the impact occurred, which she told Medical Assessor Assem caused a sudden jarring motion that affected her neck, shoulders and arms.
Mr Michael Griffiths described an insignificant accident which he did not consider generated forces which, on the balance of probabilities, could cause physical trauma. Mr Griffiths however is a non-medical expert in the area of accident dynamics and associated injury mechanisms. He concluded at [53] that the delta-V forces of the impact were insufficient to generate significant biomechanical loading on Ms Watts. Necessarily, Mr Griffiths’ conclusions are related to the impact of the accident, related to the hypothetical ordinary person of similar age and gender involved in such an accident, rather than conclusions in respect of Ms Watts in particular.
FURTHER MEETING OF THE REVIEW PANEL WITH RESPECT TO THE THRESHOLD INJURY DISPUTE
The Panel met for a second time on 10 July 2025 at 3.00pm and fully discussed the issues, including the preliminary findings of Medical Assessor Shane Moloney who saw Ms Watts on behalf of the Panel on 27 June 2025.
The Panel included in its further discussion a consideration of the views of Dr Korber, radiologist, as well as all of the evidence to which the Panel has referred above.
The Panel took into account the views expressed by Mr Michael Griffiths as to the delta-v forces of the impact and that in his view, they were insufficient to generate significant biomechanical loading on Ms Watts.
The Panel noted that Mr Griffiths did not take into account at all, or sufficiently, what
Ms Watts said at [18] to [20] of her statement of 20 July 2024 that at the time of the accident, she had both hands on the steering wheel and her right foot on the brake pedal and that her body was jolted by the impact and she immediately felt pain in her left shoulder, neck, middle and upper back, and both arms.
The Panel considered that Mr Griffiths had failed to give any or any adequate consideration to the expert opinions of Dr Negus, Dr Kumar, and Dr Gothelf.
The Panel took into account that as there was a full thickness tear of the supraspinatus diagnosed after the accident, the Panel considered that the accident could have and probably did cause the shoulder injury. Ms Watts’ previous shoulder condition had settled, and the Panel notes the physiotherapist who saw Ms Watts on 20 June 2022 was treating the left shoulder within one month of the accident. On the balance of probabilities, the accident has caused the supraspinatus tear which required repair.
This view was shared by Medical Assessor Shane Moloney and indeed by the whole Panel.
THE PANEL’S CONCLUSIONS WITH RESPECT TO THE THRESHOLD INJURY DISPUTE
From Ms Watts’ descriptions of how the accident happened and what she was doing at the time of impact, from her medical history, and all other relevant matters to which the Panel has referred, this accident could have caused the injury sustained by Ms Watts and probably did cause a full thickness tear of the supraspinatus which was diagnosed after the accident.
Prior to the accident, Ms Watt’s previous shoulder condition had settled and the physiotherapist who saw her on 20 June 2022 was treating left shoulder complaints within one month after the accident.
The previous shoulder condition of Ms Watts had settled. On the balance of probabilities, the accident caused the supraspinatus tear which required repair.
It follows that the supraspinatus tear was a non-threshold injury.
The Panel sets aside the decision of Medical Assessor Mohammed Assem of
19 February 2025 and substitutes:
·
supraspinatus tear to the left shoulder was caused by the accident and is a
non-threshold injury.
PERMANENT IMPAIRMENT DISPUTE
The injuries which were referred to the Review Panel for assessment as to permanent impairment were:
· injury to the left shoulder including full thickness tear of the rotator cuff and requiring two surgical procedures;
· injury to the cervical spine including aggravation of pre-existing degenerative changes, and
· skin – scarring surgical scarring.
LEGISLATIVE FRAMEWORK
Sections 5D and 5E of the Civil Liability Act 2002 (the CLA) apply to the MAI Act: s 3B (2) of the CLA.
Mr Leverrier’s claim and entitlements to compensation are governed by the provisions of the MAI Act. An injured person can make a claim for both economic losses and non-economic loss damages.
However, s 4.11 of the MAI Act provides that no damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.
Permanent impairment assessment
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Guidelines.
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt AMA 4 Guides. The Guidelines are definitive in respect of the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed: cl 6.2 of the Guidelines.
Permanent impairment is assessed in accordance with Chapter 6 of the Guidelines.
Causation of injury is addressed in cls 6.5, 6.6 and 6.7 of the Guidelines.
Clause 6.6 of the Guidelines notes:
“6.6 Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:
‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.”
Clause 6.7 of the Guidelines states:
“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.”
Pre-existing impairment is addressed in cls 6.31, 6.32 and 6.33 of the Guidelines.
The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored: cl 6.31 of the Guidelines.
Clause 6.32 of the Guidelines states:
“The capacity of a medical assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA 4 Guides (page 10): 'For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.' Refer to clause 6.218 for the approach to a pre-existing psychiatric impairment.”
EVIDENCE BEOFRE THE REVIEW PANEL
The Review Panel considered all of the evidence that was before it in respect of the threshold injury dispute.
FURTHER EXAMINATION BY THE REVIEW PANEL
Medical Assessor Drew Dixon examined Ms Watts for the Review Panel at 1.00pm on Friday 17 October 2025 at the Commission’s medical suites.
Medical Assessor Drew Dixon reported to the Review Panel on his examination of Ms Watts.
Accident details
This 64-year-old claimant was driving to work in her 2010 Toyota Camry Altise sedan on Mount Wilson Road, Mount Hutton, NSW. As she approached a red traffic light, she came to a complete stop at 8.30am on 19 May 2022 and was rear ended by a Volkswagen sedan. At the time of impact, she had both hands on the steering wheel and her foot on the brake. There was a sudden jarring motion that affected her neck, shoulders and arms. There was no head injury nor loss of consciousness. Her car boot sustained damage and could not be opened properly.
She was able to self-extricate from the vehicle and initially drove onto work as she had to open the store where she worked.
She had pain in her neck and left shoulder and had weakness in her left arm.
Her symptoms became more marked and she left work early.
Symptoms and treatment following the accident
She consulted her GP who found there was mild restricted range of motion with no apparent neurological deficit in the upper limbs. She was advised to continue with light duties and simple analgesia and start physiotherapy.
On 1 July 2022 she reported pain radiating from her neck to the left arm with left shoulder brachalgia and paraesthesia in the left hand, namely to the little and ring fingers and felt there was weakness of strength in her left arm. She continued with light duties and physiotherapy. She had an MRI of her cervical spine and left shoulder on 19 July 2022 which showed subacromial spurring and AC joint arthropathy and supraspinatus impingement with a near full thickness tear of the supraspinatus.
She consulted Dr Jai Kumar, orthopaedic surgeon, on 12 September 2022 who felt the flexion was limited to 90 degrees and supraspinatus strength was grade 3 and a cortisone injection was recommended.
She also had review by a neurosurgeon, Associate Professor Mitchell Hansen, on
6 October 2022 who found grade 4 plus out of 5 weakness in the left upper limb and transforaminal injection at C4/5 and C5/6 was recommended with nerve conduction studies.
A repeat MRI of the left shoulder on 9 February 2023 showed an incomplete full thickness supraspinatus tear and degenerative AC joint changes.
On 6 June 2023 she underwent rotator cuff repair and on 16 to 17 October 2023 she experienced ongoing shoulder stiffness secondary to adhesive capsulitis (frozen shoulder) and this required capsular release.
Details of injuries and conditions sustained since the motor vehicle accident
Nil.
Current symptoms
She reports persisting pain and stiffness in her neck with left shoulder brachalgia and required Panadol Osteo and Nurofen. She described tenderness of the ulnar border of her left hand and forearm with slight sensory loss in the ulnar digits of her left hand.
She has difficulty with ADLs such as household cleaning, gardening, lifting heavy groceries and laundry, dressing and doing her toenails, bathing and showering and doing her hair and is reliant on her husband for the heavier household chores.
She had difficulty returning to her work as a sales professional at Plush Sofas Pty Limited where she had been employed since 11 November 2022 and is currently doing 32 hours per fortnight with a 5kg lifting limit.
She reports difficulty returning to sports such as surfing, swimming, bike riding and sewing, which she previously enjoyed and gardening, which she loved.
Examination
On examination at the Commission’s medical suites at 1 Oxford Street, Sydney on
17 October 2025, she was 5’6” tall and weighed 76kg. She presented in a straightforward manner without embellishment.
There was stiffness of her cervical spine with flexion decreased one quarter and pain on neck extension which was decreased by one third and lateral flexion decreased by one third bilaterally and lateral rotation decreased by one third to the left associated with shoulder pain. Rotation to the right was decreased by one half.
Her cervical foraminal compression test was positive and she had tenderness of the left supraclavicular brachial plexus. The biceps and supinator jerks were present on the left but her triceps jerk was absent and her reflexes in her right upper extremity were present. There was altered sensation in the little and ring fingers of her left hand and her intrinsic power was grade four out of five and grip strength grade four out of five and thenar power grade five out of five. Envelope test for intrinsic power was also positive on the left.
There was 1cm of wasting of her left upper arm, 10cm above the elbow, measuring 29cm and on the right 30cm and no wasting of her left forearm, 10cm below the elbow measuring 22cm bilaterally. The Tinel’s sign over the median and ulnar nerves at the wrist and left elbow were negative, as was her Phalen’s test.
There was stiffness on elevation of her left shoulder with active abduction 80 degrees with impingement, forward flexion 90 degrees, extension 40 degrees, adduction 40 degrees, external rotation 70 degrees and internal rotation 40 degrees. Shoulder girdle power on the left was grade four out of five. There was a 4cm scar anterolaterally with loss of contour which remained tender and the arthroscopic portal anteriorly had healed well.
She had a better range of motion of her right shoulder with active abduction 170 degrees, forward flexion 180 degrees, extension 50 degrees, adduction 40 degrees, external rotation 80 degrees and internal rotation 80 degrees. There were no tender areas in the right shoulder today.
Radiological investigations
Further MRI of the cervical spine on 22 August 2025 showed degenerative changes in the cervical spine with C3/4 disc osteophyte complex and facet joint degenerative disease with severe narrowing of the left neural exit foramen and at C4/5 a disc osteophyte complex with minimal canal narrowing and moderate narrowing of the neural exit foramina bilaterally and C5/6 minimal disc osteophyte complex with narrowing of the spinal canal and neural exit foramen. At C6/7 there was left uncovertebral degenerative change with minimal spinal canal narrowing and mild narrowing of the left neural exit foramen.
Dr John Korber, radiologist, did a medico-legal report dated 8 April 2024 and noted insertional anterior tear at the supraspinatus tendon before the accident in the same position as the current tear.
Nerve conduction study by Associate Professor Hansen on 16 November 2022 showed no large fibre peripheral neuropathy.
Summary
Her diagnoses are:
(a) whiplash injury to her neck with aggravation of cervical spondylosis with grade 4 out of 5 left C8 radiculopathy;
(b) contusion to left shoulder with post traumatic stiffness which required arthroscopic repair of the supraspinatus and subsequent release of adhesions with capsulitis, and
(c) scarring of the left shoulder which was 4cm long and had loss of contour and was tender and she was able to readily localise it and it is visible if wearing a short sleeve blouse or sleeveless top and the claimant remains conscious of it.
Although there was a known whiplash injury at the time of the subject motor vehicle accident, the claimant did develop left shoulder brachalgia with trapezial muscle pain and was subsequently shown to have rotator cuff tear of her left shoulder which required operative repair and subsequent release for adhesive capsulitis.
The injury to the cervical spine is a non-threshold injury as she has C8 radiculopathy in the left upper extremity.
The injury to the left shoulder is associated with rotator cuff tear requiring repair and is a non-threshold injury.
Whole person impairment
That for the cervical spine is DRE Category III, 15% WPI less DRE Category II for pre-existing cervical spondylosis, from Table 73, Page 110, AMA 4 Guides, giving 10% WPI. There was a C 8 radiculopathy with an absent left triceps reflex, sensory loss in a C 8 distribution and slight muscle wasting.
That for the post-traumatic stiffness of her left shoulder is from Pie Charts 38, 41 and 44, Pages 43-45 of AMA 4 Guides, 15% UEI which equates to 9% WPI.
This gives a total of 18% WPI from the Combined Values Chart.
That for her surgical scar at the left shoulder as described is from TEMSKI Table 6.18, Page 136 from the Guidelines, 1% WPI.
This gives a total of 19% WPI from the Combined Values Chart.
The claimant was consistent on presentation and on repeat movements of the shoulders and cervical spine.
The range of motion found for the left shoulder is consistent with that found by Medical Assessor Assem in his MAC dated 19 February 2025. I am at variance with his neurological findings, however, finding intrinsic weakness in the left hand with sensory changes consistent with C8 radiculopathy.
He did not provide assessment for scarring as he felt it was non causal.
The claimant had two cortisone injections to her cervical spine which only gave temporary relief.
The shoulder specialist, Dr Kumar, had recommended a cortisone injection for sustained benefit and she had a rotator cuff repair on 6 June 2023 at Lingard Private Hospital and then on 17 October 2023 had capsular release with some improvement in the range of motion.
The issue of the supraspinatus tear in the left shoulder was that there was apparently a small tear in 2008 and a more significant tear on MRI after the subject accident but the claimant noted that she had both hands gripping the steering wheel on impact and felt pain in the neck with left shoulder brachalgia.
The previous X-ray in 2018 had shown a smaller attritional tear of anterior fibres of the supraspinatus tendon and the MRI of the left shoulder on 18 July 2022 showed a near full thickness supraspinatus tear with subacromial bursitis.
FURTHER CONSULTATIOND OF THE REVIEW PANEL ON PERMANENT IMPAIRMENT
The Review Panel considered all of the evidence that had been before it in respect of the threshold injury dispute.
The Review Panel consulted as to the findings on permanent impairment, having previously consulted on threshold injury, and, having consulted, came to the view that the conclusions of Medical Assessor Dixon were correct as to permanent impairment.
The Medical Assessors and the legal Member were in agreement that the neurological findings for the cervical spine showed an intrinsic weakness of the left hand with sensory changes consistent with C8 radiculopathy. In each of the discussions, the relevant Medical Assessor and legal Member agreed with the reasons and conclusions.
The Panel further considered scarring which was clearly, in the view of the Panel, causal.
The Panel could not see how it could be reasonably argued that the scarring to the left shoulder was not causally related to the accident.
Ms Watts said in her statement of 20 July 2024 that it is clear that she underwent a number of procedures on her left shoulder, including on 6 June 2023, surgery by Dr Kumar in the form of a scope of the left shoulder, and surgery on 17 October 2023 when she underwent a capsular release.
The Panel considered that, on the balance of probabilities, as a result of the procedures to the left shoulder, Ms Watts developed scarring which was causally related.
The Panel notes that Medical Assessor Dixon has carefully described the scarring and is satisfied that, on the balance of probabilities, it justifies a 1% WPI rating.
CONCLUSIONS ON WHOLE PERSON IMPAIRMENT
Ms Watts’ WPI is made out from the following injuries:
· cervical spine;
· left shoulder, and
· scarring.
The Review Panel determines that Ms Watts has sustained a combined WPI of 19% using the Combination Table at the end of the AMA 4 Guides.
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