Certificate issued under Division 7.5 of the Motor Accident Injuries Act 2017

1. Confirms the certificate issued by Medical Assessor Rapaport dated 23 April 2025.

1. Karim Chamtieh (the claimant) was involved in a motor accident on 12 December 2022. He was the driver of a vehicle when another vehicle collided with the rear of his vehicle. The impact caused the claimant's car to spin to the right and there was a secondary impact with the other vehicle colliding into the claimant's driver side door. He says he sustained injuries to his neck and right shoulder as a result of the accident.
2. The claimant made a claim for statutory benefits with AAI limited t/as AAMI (the insurer), the third-party insurer of the vehicle that he says caused the accident.
3. A medical dispute arose about whether the claimant's injuries were threshold or non-threshold injuries and the matter was referred to the Personal Injury Commission (Commission) for medical assessment.
4. On 23 April 2025, Medical Assessor Adam Rapaport found the right shoulder injury to be not a threshold injury. The cervical spine injury was considered to be a threshold injury.
5. The insurer lodged an application with the Commission seeking review of the Medical Assessor's decision. This was allowed by the President's delegate (Ms Melinda Drew) and this Review Panel was convened to conduct the review.[1]

1. Under the Motor Accident Injuries Act 2017 (the MAI Act), there is a scheme for statutory benefits (under Part 3) for persons injured in motor accidents in New South Wales. Such benefits can include treatment and care and weekly payments.
2. For injured persons who have "threshold injuries", they cannot receive statutory benefits beyond 52 weeks after the accident and cannot recover damages.[2]
3. For physical injuries, a threshold injury is defined as a "soft tissue injury".[3]
4. A "soft tissue injury" is defined as:

"An injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, facia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage."[4]

1. A soft tissue injury includes an injury to a spinal nerve that manifests in neurological signs (other than radiculopathy).[5]
2. The Motor Accident Guidelines (the Guidelines)[6] defines radiculopathy as:

"Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with 'Part 6 of the Motor Accident Guidelines: Permanent Impairment'.

(a) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)

(b) positive sciatic nerve root tension signs (see the

(c) muscle atrophy and/or decreased limb circumference

(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution

(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution."[7]

1. 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.[8]
2. Table 6.8 of the Guidelines provides definitions for the clinical signs in (a) to (e) above.

1. The provisions regarding causation of injury are contained in cls 6.5 to 6.7 of the Guidelines and apply to both permanent impairment and threshold injury disputes.[9]
2. Clauses 6.6 and 6.7 state:

"6.6 Causation means that a physical, chemical or biological 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 the worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination

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

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

1. Further, the provisions of the Civil Liability Act 2002 apply, in particular s 5D and s 5E.

1. Medical Assessor Rapaport stated that he was asked to provide an assessment on whether the following injuries were threshold injuries:
   • partial tears of the rotator cuff with impingement of the right shoulder, and
   • cervical spine ligamentous injuries with discal implications.
2. The Medical Assessor's examination revealed no visible anatomical abnormalities around the right shoulder joint. Elevation of the right arm was limited to 110º of flexion and 90º of abduction at the shoulder joint. Mid arm circumferences measured 34 cm for the right (dominant) and 36 cm for the left. The 2cm discrepancy was suggestive of disuse atrophy in the right arm musculature around the right shoulder joint.
3. No relevant abnormalities were found in the examination of the cervical spine.
4. The Medical Assessor found that the claimant sustained a whiplash injury to the cervical spine which has resolved. The MRI imaging noted only minimal age-related degenerative changes.
5. For the right shoulder, the Medical Assessor noted that ultrasound and MRI imaging showed partial thickness tears in the supraspinatus and subscapularis tendons.
6. The Medical Assessor reasoned that:

"...The exact mechanism of blunt traumatic injury cannot be deduced however there was a direct impact of collision onto the driver's front door with shattering of the window that was in close proximity to the claimant's right shoulder.

There has been no documented previous right shoulder abnormality of function or clinical signs of prior right shoulder injury... He developed pain and limitation of right shoulder motion after the accident that prevented him from Uber driving and curtailed his activities of daily living. The limitations of right shoulder elevation were well documented by his exercise physiologist and his orthopaedic surgeon Dr Baba..."

1. Medical Assessor Rapaport concluded that the motor accident caused partial tears of the rotator cuff tendons of the right shoulder and is not a threshold injury.

Insurer's original reply submissions dated 6 March 2025

1. The insurer submits that the medical evidence supports accident-related threshold injuries to the cervical spine and right shoulder. While it is conceded that the post-accident ultrasound showed the presence of a tear, the insurer disputes this is related to the motor accident based on the opinions of Dr Antoun, Dr Sekel and Dr McIntosh.

Insurer's review application submissions dated 19 May 2025

1. The insurer refers to a report of Dr McIntosh, biomechanical engineer, dated 26 August 2024. The insurer says Dr McIntosh believed the force of the collision to be inconsistent with the claimant's alleged injuries. Further, Dr McIntosh made no reference to any glass shattering in the property damage profile.
2. The insurer submits that the Medical Assessor fails to refer to the report of Dr McIntosh in his certificate's reasons. It is contended that the Medical Assessor did not genuinely consider the opinion of Dr McIntosh which results in a failure to have regard to the "substantial, clearly articulated argument espoused in the insurer's submissions, resulting in a denial of procedural fairness".

Claimant's original application submissions dated 18 December 2024

1. The claimant submits that the report of Dr John Davis dated 3 August 2023 supports accident-related injuries to the cervical spine and right shoulder, with the latter being partial tears of the right rotator cuff with impingement.

Claimant's review reply submissions dated 13 June 2025

1. The claimant submits that the Medical Assessor is not obligated to provide elaborate reasoning as to why he rejected the findings of Dr McIntosh. The Medical Assessor had considered all other potential causes of the tendon tears including the claimant's job role and his involvement in another motor accident approximately 10 years prior. The claimant says the Medical Assessor was open to rely on his own findings on the evidence which included examination findings supported with references to the findings of the exercise physiologist and orthopaedic surgeon Dr Baba.

1. On 25 June 2025, the Panel issued directions to the parties requiring indexed and paginated bundles of the information they relied upon. The Panel stated that unless documents are uploaded to the Review file, the Panel would not be able to read and consider those documents. The parties duly responded with the insurer's bundle comprising of pages 1-500 and the claimant's bundle comprising of pages 1-131.
2. At the initial teleconference on 26 August 2025, the Panel noted that the claimant's general practitioner (GP), Dr Kanawati, referred the claimant for physiotherapy under an Allied Health Recovery Request dated 7 February 2023 (page 204 of insurer's bundle).
3. The Panel issued a direction to the parties requiring the production of the clinical notes of

Mr Roger Berbari at First Care Physiotherapy in Bankstown. The parties did not provide this information to the Panel. 4. The Panel has read and discussed the documentation with the relevant material referred to in the Panel's re-examination report and Panel findings below.

1. MRI cervical spine dated 13 February 2023 - normal study with minimal age-appropriate degenerative changes.
2. Ultrasound right shoulder dated 21 April 2023 - partial thickness tears of the subscapularis and infraspinatus tendons. Also, evidence of subacromial impingement, with mild subacromial-subdeltoid bursitis.
3. MRI right shoulder dated 26 October 2023 - small supraspinatus intrasubstance tear. Remaining rotator cuff remains intact. Thickened inferior glenohumeral ligament, suggestive of adhesive capsulitis.

1. Report of Dr Tony Antoun dated 2 April 2024 - request from insurer to clarify whether subject motor accident was a direct cause of the right shoulder pathology shown in the MRI dated 26 October 2023. Dr Antoun provided with the above right shoulder ultrasound and MRI reports. Report based on the notes reviewed and the correspondence by radiologist

Dr Behnam Moharami. Dr Antoun states: "Dr Moharami kindly reviewed the MRI right shoulder and stated that the supraspinatus tear on MRI is confirmed, associated with subcortical cystic changes indicating longstanding pathology. Impression: Imaging confirms no acute or traumatic features, only long-standing pathology that are unrelated to the claimed event or described mechanism of injury." Accident-related injury considered to be soft tissue. 2. Report of Dr Richard Sekel dated 4 October 2023 - no accident-related significant injury of the rotator cuff of the right shoulder. At most, the accident may have resulted in adhesive capsulitis of the right shoulder which is expected to resolve within a maximum of two years after the subject accident. No impairment to the right shoulder because symptoms and function were considered significantly better than what the claimant indicated to Dr Sekel. 3. Report of Dr Andrew McIntosh dated 26 August 2024 - biomechanical report. States that the claimant's vehicle was exposed to two minor severity collisions - rear end followed by driver's door side swipe. States that while it is plausible for "some contact loading of the lateral aspect of the claimant's right shoulder as a result of the collision with the offside front door, the magnitude of the impact force acting on the shoulder would have been because of the function of the seat, seatbelt and crash severity. The movement of the claimant's shoulders in the [accident] would have been limited and within normal range of motion... Inertia loads applied to the shoulders as a result of arm movement would have been minimal and tolerated without injury." Acknowledges that the claimant alleged neck and right shoulder symptoms continuing for eight to nine months after the accident. Concludes that the force of the collision is not consistent with the claimant's alleged injuries. And further, "It is plausible that a small proportion of vehicle occupants might suffer a soft tissue injury involving the cervical spine with symptoms of a closed period of a short duration. Shoulder injury is unlikely." 4. Report of Dr John Davis dated 3 August 2023 - diagnosed mechanical trauma to the cervical spine and partial tears of the right rotator cuff with impingement causally related to the motor accident. Impairment was rated as 5% WPI for the cervical spine and 10% WPI for the right shoulder.

1. Initial Needs Assessment Report of Procare dated 30 March 2023 - addressed to the insurer and details the claimant's cervical spine and right shoulder complaints. Functional restrictions set out with treatment options and rehabilitation plan devised.
2. NSW Certificate of Capacity (various dates) - diagnoses of "cervical spine ligamentous injury with discal implication, right shoulder tendonitis, anxiety and depression".
3. Certificate of Medical Assessor Rapaport dated 18 April 2025 - permanent impairment assessment of 6% WPI for partial tear of rotator cuff tendons with impingement of the right shoulder.

1. At the initial teleconference on 26 August 2025, the Panel determined that the claimant be re-examined by Medical Assessor Rosenthal.
2. This occurred at the Commission's Medical Suites on 8 October 2025 and the re-examination report is below.

Pre-Accident Medical History and Relevant Personal Details

Mr Chamtieh is a 52-year-old male who was involved in a motor vehicle accident on 12 December 2022.

He was working as an Uber driver at the time of the accident and had been unable to work until the insurer stopped payments at which time he resumed work of 18-20 hours a week as an Uber driver since March 2025. He said he does 2-3 hours of work a day. He has been an Uber driver for about five years.

Previous to this he had worked as a truck driver. He is not receiving any insurance company payments.

He reported a truck rollover in around 2016, apparently injuring his neck and left shoulder but he said he fully recovered and there were no ongoing health concerns. He denies any other pre-existing conditions. He is right-handed.

He lives on his own in a studio apartment in Yagoona. He does his own household chores. He is driving. He can walk to the shops to get food. He does no exercise. He spends his spare time watching rugby and soccer.

Mr Chamtieh confirmed the previous history provided. On 12 December 2022, he was driving a Hyundai hatchback i30 carrying a passenger. He had his seatbelt on. He was going over the Harbour Bridge. He turned off onto the Pacific Highway at North Sydney travelling at 30-40 kph when he felt a rear collision and a second collision then hitting the driver's door. There was broken glass which shattered over him. No airbags in his vehicle went off. The Fire Brigade got him to drive the car off to a safe area but the offending driver who had initially stopped then left the scene.

Mr Chamtieh went to a nearby Police Station after the accident and then drove home.

History of Symptoms and Treatment Following the Motor Accident

He noticed a sore neck and sore right shoulder. The right shoulder had been impacted by the seatbelt. Initially, he reported the right side of his neck as being injured which is what his GP documented although he said it was actually the right shoulder as well. He kept complaining to his GP about the right shoulder but his GP wanted to see how his neck went before investigating the shoulder.

He had physiotherapy treatment on his neck and shoulder and then an ultrasound of his shoulder performed on 21 April 2023. He had physiotherapy and then exercise physiology which helped his condition.

He also saw a psychologist for a psychological injury from the accident.

Eventually, in 2024, his insurer denied further liability and stopped paying for treatment and stopped his replacement wages.

He had seen Dr Baba, an orthopaedic surgeon, around October 2023. At that stage, Dr Baba noted the tear in his rotator cuff but did not think it was causing many of his symptoms. Dr Baba organised two cortisone injections which gave him some slight improvement. He was due to have a further review by Dr Baba when the insurer denied further liability. He had an MRI done of the right shoulder on 26 October 2023.

He was also referred to Dr Adam Mir, a pain specialist, whom he saw once. Dr Mir wanted to do further investigations but these were also denied by the insurer.

Since the insurer stopped funding treatment, he said his condition has deteriorated and his symptoms are worse. He said he was forced to go back to work because the insurer stopped paying for income replacement.

He has constant right-sided neck and shoulder pain rating 8 on a scale of 0-10, with 10 being maximal pain. He says the back of the neck is involved and the whole of the shoulder. He reports reduced movement of his neck and right shoulder. He is using his left arm more to do most of his activities. He has no pins and needles, numbness or other complaints in his right arm. His left arm is currently OK.

He takes Nurofen Plus nearly every day. He takes Norgesic when required.

On examination, Mr Chamtieh walked with a normal gait and posture. He appeared to be in no significant distress.

There was no obvious wasting around the right shoulder girdle. There was no tenderness, spasm or guarding in the cervical spine which exhibited normal cervical lordosis.

His neck displayed a full range of movement. Rotation to left and right, flexion, extension and latera flexion movements were all reportedly pain free. There was no asymmetry of neck movement. Brachial stretch tests were negative.

He had some global weakness in his right upper limb but there was no anatomically localised muscle weakness and no sensory changes in his upper limb and reflexes were normal.

Upper arm measurements were 31cm on the right and 32cm on the left, 10cm above the olecranon. Forearm measurements were 28cm on both sides, 10cm below the olecranon.

At the right shoulder, he had a positive impingement and range of motion was measured with a goniometer and found to be consistent. Reported pain was the limiting factor:

The left shoulder exhibited a full range of motion.

He had a full range of elbow and wrist movements and a normal grip strength in the right hand.

He presented consistently without signs of embellishment or exaggeration."

1. The review of the medical assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned.[10]
2. The Panel may confirm the certificate of assessment or revoke that certificate and issue a new certificate as to the matters concerned.[11]
3. The Panel notes the above re-examination report of Medical Assessor Rosenthal. The Panel reconvened on 14 October 2025 and discussed the re-examination report findings before collectively making the below determinations.

1. The Panel accepts the claimant sustained a cervical spine injury caused by the motor accident. The claimant gave a history to the Panel of a sore neck following the motor accident which is supported by the certificate of capacity issued by his GP Dr Kanawati dated 28 February 2023. This certificate indicates that the claimant was first seen by Dr Kanawati on 12 December 2022, the day of the accident. The Panel does not accept that there is any discal implication as the MRI of the cervical spine did not report any acute traumatic changes. The cervical spine injury is therefore diagnosed as a soft tissue injury.

1. The shoulder injury was investigated and noted to have partial thickness tears in infraspinatus and subscapularis tendons. The MRI of the shoulder also showed a small intrasubstance tear. The Panel notes the dispute as to whether the tears are acute or chronic but as the investigations were done several months after the accident it cannot be determined with absolute certainty whether the tears are in fact acute or chronic.
2. The physiotherapy reports, which were not provided, could have been helpful in determining exactly what happened to his shoulder in the early stages following the accident as the referral occurred in February 2023.
3. As noted in the Panel's re-examination history, the claimant stated that he did complain to his GP about right shoulder pain but his GP wanted to see how his neck went before investigating his shoulder. The Panel accepts this, as it is consistent with the timeline of the investigations, with the MRI of the cervical spine obtained in February 2023 and the ultrasound of the right shoulder obtained a couple of months later.
4. Furthermore, the Procare Initial Needs Assessment Report to the insurer was dated

30 March 2023 and documented complaints of radiation of symptoms radiating down from the neck with the pain being "unbearable at the right shoulder joint upon movement". 5. The Panel discussed the detailed biomechanical report of Dr McIntosh. The Panel noted

Dr McIntosh's opinion that the collisions could have involved some contact loading of the claimant's right shoulder with forces acting on the shoulder by virtue of the function of the seat and seatbelt. The Panel however disagrees with Dr McIntosh's view that the inertial loads on the shoulder are not consistent with injury. While this may be the biomechanical view, clinically, and having regard to the timeline of the claimant's reported symptoms, the Panel was satisfied that the collisions could have and in fact did cause an injury to the right shoulder. 6. Having established that the claimant sustained an injury to his right shoulder caused by the accident, the Panel proceeded to determine whether the pathology shown in the ultrasound and subsequent MRI study (i.e. the small tears in the tendons) were caused by the accident. 7. The Panel noted that the claimant had previous neck and left shoulder symptoms following a previous motor accident in December 2015 when the truck he was driving rolled over.

Dr Kanawati had diagnosed cervical ligamentous injury and left shoulder tendonitis in February 2016. The Panel questioned the claimant regarding this and, as documented in the Panel's re-examination report, the claimant stated he had fully recovered from his previous injury. The Panel noted that there was no evidence to suggest the claimant had any ongoing concerns to his neck until the time of the subject motor accident in December 2022, some seven years after the previous accident. The Panel therefore accepted that the claimant was asymptomatic before the accident. 8. As noted in the Panel's re-examination report, the Panel discussed at length the difficulty in determining whether the pathology shown in the investigations was definitely acute or chronic. 9. The Panel carefully read the report of Dr Antoun who suggested, in consultation with radiologist Dr Moharami, that the pathology shown and the mechanism of the accident could not have caused the small tears. The Panel resolved that little weight should be placed on the report of Dr Antoun as while Dr Antoun consulted a radiologist in Dr Moharami, it is unclear whether Dr Moharami viewed the actual scans when formulating his view that the supraspinatus tear on the MRI was longstanding. In addition, Dr Antoun's recall of the

Dr Moharami's findings is brief and do not address the claimant's reported history and the other evidence on file. There is also no comment on the other tears of the rotator cuff, including the subscapularis and infraspinatus tendons. 10. Thus, in terms of causation for the tears, while the Panel cannot determine that the tears were certainly caused by the collisions in the subject accident, the test for causation is on the balance of probabilities and certainty is not required. The Panel concludes that the tears were more likely than not caused by the subject accident.

1. The following injuries were caused by the motor accident:
   • cervical spine - soft tissue injury, and
   • right shoulder - partial tears of the rotator cuff.

1. The Panel considers the right shoulder rotator cuff tears to fall outside the definition of a soft tissue injury as defined in s 1.6 of the MAI Act.
2. The right shoulder injury is therefore NOT a threshold injury.
3. The cervical spine soft tissue injury is a threshold injury.

1. The Panel notes that while Medical Assessor Rapaport assessed the claimant on the same day, he provided certificates of differing dates. It is only the threshold injury certificate that is the subject of this review. In any event, the Panel advised the parties that it would also review Medical Assessor Rapaport's permanent impairment certificate.
2. While this was the Panel's initial view expressed to the parties, on reflection, the Panel determined that it did not have power to determine permanent impairment, as the present Panel proceedings are, by a strict interpretation of the medical assessment matter in dispute, confined to threshold injury only. The Panel did not invite further submissions from the parties as it will be shown below its observations on the claimant's permanent impairment are immaterial to the findings of Medical Assessor Rapaport.
3. Based on Panel's Medical Assessor Rosenthal's examination findings, the cervical spine is assessed under cervicothoracic spine Table 73, page 110. There is no muscle spasm or guarding, no asymmetry of motion, no non-verifiable radicular complaints, no structural inclusions, no radiculopathy. He is DRE category I and gets 0% whole person impairment.
4. The right shoulder is assessed under range of motion with Figures 38, 41 and 44.

1. Upper extremity impairment of 9% converts to 5% whole person impairment.

1. For the above reasons, the threshold injury certificate issued by Medical Assessor Adam Rapaport dated 23 April 2025 is confirmed.

[1] Section 7.26(5) of the Motor Accident Injuries Act 2017 (MAI Act).

[2] The terminology for accidents that occurred before 1 April 2023 (such as the present) was "minor" injury and statutory benefits were only paid for up to 26 weeks.

[5] Section 4(1) of the Motor Accident Injuries Regulation 2017.

[6] The applicable version of the Guidelines is version 10.

[9] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372 per Wright J at [35].