review provisions apply. 4. The review provisions provide[9] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission). 5. Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[10] 6. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[11] 7. The parties filed bundles of documents for the Panel's consideration. 8. On 11 March 2025 the Panel issued the following direction:

"The Panel request production of the following records:

1. Clinical records of the GP from 2018 to date;
2. Dr McKechnie; and
3. Concord Hospital.

The Panel requests either party to produce these documents.

The Panel will reconvene in the absence of the parties on 22 April 2025 at 5 pm to discuss the production of these documents.

The Panel does not intend to provide an examination date until there has been reasonable compliance with this direction.

The Panel also requests the claimant to provide the password/link to enable access to the MRI scans of the right knee and back undertaken in September 2024. In the absence of this information the claimant is to provide written permission to the Panel so that we can access the electronic versions of these scans from the radiologist."

1. There was initially no compliance with this direction. The matter was listed for a conference with the legal practitioners on 1 May 2025. Following that conference the applicant filed clinical notes from Dr McKechnie and provided access to the MRI scans. The clinical notes of the general practitioner (GP) and the hospital records were not then available.
2. The various notes were, after some delay, provided by the claimant's representatives. The material was available to the insurer. The parties made no submissions on the relevance of the material. The Panel subsequently issued a direction inviting the insurer to make any submissions on the 2025 left shoulder ultrasound.

1. A threshold injury is defined in s 1.6(1) of the MAI Act:[12]

"(1) For the purposes of this Act, a threshold injury is, subject to this section, one or more of the following -

(b) a psychological or psychiatric injury that is not a recognised psychiatric illness."

1. Section 1.6(2) of the MAI 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."

1. Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a threshold psychological or psychiatric injury.
2. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines threshold injury to include "an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)" and an acute stress disorder and an adjustment disorder.
3. Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the Act. Version 10 of the Guidelines commenced on 15 September 2025 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:

"5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.

5.4 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."

1. Clauses 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a threshold injury. An injury resulting in radiculopathy will not be classified as a threshold injury.
2. Clause 5.7 of the Guidelines provides:

"In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential."

1. Radiculopathy is defined in cl 5.8 of the Guidelines as follows:

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

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

(b) positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)

(c) muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)

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

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

1. Neurological symptoms that do not meet the assessment criteria for radiculopathy means that the injury will be assessed as a threshold injury.[13]
2. Clauses 6.5 to 6.7 of the Guidelines refer to causation of both injury and whether the degree of permanent impairment is caused by injury.
3. Clause 6.7 of the Guidelines provides:

"There is no simple common test of causation that is applicable in 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 the sole cause as long as it is a contributing cause, which is more than negligible."

1. Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[14] In Raina v CIC Allianz Insurance Ltd[15] Campbell J stated:

"One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely."

Claimant's submissions dated 19 February 2024[16]

1. These submissions sought leave to make an application for a further medical assessment.
2. The claimant noted that he was involved in a prior motor vehicle accident on 10 April 2018.
3. These submissions either sought a review of the original medical assessment or further assessment of the right knee and lumbar spine. He referred to the opinion of Dr Bentivoglio dated 18 October 2022 who opined that the claimant was suffering from chondromalacia patella caused by a direct blow to the right knee. Reference was also made to the right knee ultrasound dated 18 January 2024 which indicated meniscal degeneration or a tear.
4. The claimant also referred to the mild disc bulge at L5/S1 shown on the CT scan dated

16 January 2024 which he submitted was a non-threshold injury.

Insurer's submissions dated 25 May 2023[17]

1. These submissions in part referred to the psychological injury. These submissions are not repeated as part of these reasons.
2. The insurer referred to the CT scan and X-ray of the cervical spine dated 4 May 2022 which was essentially normal. It noted that there was no radiology of the lumbar spine.
3. The insurer referred to the report of Dr Bentivoglio dated 18 October 2022. That report noted pain radiating towards the left shoulder but not down the left upper limb and the doctor opined that there was no evidence of any nerve root irritation or compression. Neurological examination of the lumbar spine and lower extremities was essentially normal with an unexplained muscle wasting of the right calf.
4. The insurer noted that there was an ultrasound of the left shoulder in May 2022 which was not attached to any application. Dr Bentivoglio apparently reviewed the ultrasound which showed evidence of mild subacromial bursitis and supraspinatus tendinosis without evidence of a tear.
5. In relation to the right knee, the insurer referred to the MRI scan dated 13 November 2020. It submitted that this ruled out the presence of any tears and showed a degenerative condition and noted the pre-accident CT scan dated 28 October 2019 which did not identify any non-threshold pathology that may have been aggravated by the accident.

Insurer's submissions dated 13 March 2024[18]

1. These submissions opposed leave to seek a further medical assessment. The insurer submitted that the further evidence was either originally included in the further medical assessment certificate or did not otherwise have a material effect on any outcome.

Insurer's submissions dated 5 November 2024[19]

1. These submissions were filed seeking leave to review the medical assessment.
2. The insurer noted that the claimant brought to the examination the MRI scan of the lumbar spine performed on 6 September 2024 which was not documentation provided by the parties to the Commission nor provided to the insurer prior to the examination. It noted that the findings made by the Medical Assessor that there was a non-threshold injury was solely based on the annular tear identified in this MRI scan.
3. The insurer submitted that the claimant was involved in a previous motor accident on

10 April 2018 and the clinical indication for the MRI scan was recorded as "2 MVAs". They submitted that the pathology identified in the MRI scan may have been pre-existing and caused by the previous motor accident or may have been caused by a subsequent intervening event. Furthermore, it was submitted that annular tears can be degenerative and/or pre-existing and it was necessary to review the actual imaging to make a proper assessment. 4. The insurer noted that the CT scan of the lumbar spine dated 16 January 2024 did not reveal an annular tear or any non-threshold pathology. 5. The insurer otherwise submitted that the Medical Assessor did not adequately address causation concerning whether the annular tear was caused by the motor accident.

1. A certificate of capacity dated 10 April 2018 noted a right knee injury following a motor accident.[20]
2. An X-ray of the right knee dated 11 April 2018 showed mild tricompartmental degenerative disease.[21]
3. On 28 October 2019 the GP noted the motor accident in April 2018 and ongoing right knee pain.
4. A CT scan of the right knee dated 28 October 2019 showed mild loss directorate changes predominately affecting the medial femorotibial department joint space narrowing.[22]
5. An MRI scan of the right knee dated 13 November 2020 showed grade I chondroplasty of the medial patellar facet and grade II chondroplasty of the lateral female condyle with some bursitis.[23]
6. An X-ray of the right knee dated 14 March 2022 showed small marginal osteophytes involving the patellofemoral compartment suggestive of early degenerative changes and osteoarthritis.[24]
7. The records of the GP dated 14 March 2022 noted "very bad back since last night". There was no reported radiation and no bowel and bladder dysfunction.

1. On 4 May 2022 Dr Mohiuddin (GP) noted the motor accident two days previously with complaints of neck and lower back pain and referred the claimant for an X-ray and CT scan of the cervical spine and ultrasound of the left shoulder.[25] The GP noted recorded:

Pain neck - started after one hour of accident and lower back on bending and lifting."

The clinical notes refer to limited abduction of left shoulder and tenderness over left lower facet joints of the cervical spine.

1. An X-ray of the cervical spine dated 4 May 2022 showed mild multilevel degenerative changes. A CT scan of the cervical spine dated 4 May 2022 showed mild disc degeneration at C4/5 and C5/6 with no fracture, no neural exit foraminal narrowing and no nerve root impingement.[26]
2. A left shoulder ultrasound dated 13 May 2022 showed mild changes of supraspinatus tendinosis with no evidence of a tear and mild subacromial/subdeltoid bursitis.[27] On

16 May 2022 the GP referred the claimant for physiotherapy of the left shoulder.[28] 3. The claim form dated 25 May 2022 referred to the motor accident causing injuries to the neck, both shoulders, all areas of the back and the left arm.[29] 4. The GP referred the claimant for physiotherapy on 15 June 2022.[30] 5. An X-ray of the cervical spine dated 17 August 2022 noted a clinical history of neck pain with mild restriction to the left and tender midline at C6/7. The X-ray did not identify a fracture with mild spondylosis shown at C4/5 and C5/6.[31] 6. A certificate from the GP dated 27 August 2022 referred to the motor accident causing injuries to the left shoulder, neck and upper back.[32] 7. On 6 October 2022 the insurer held that the injuries caused by the motor accident were threshold injuries.[33] 8. Dr Anand, psychiatrist, was qualified by the claimant's solicitors and provided a report dated 23 March 2023.[34] The doctor opined that the motor accident caused an adjustment disorder with mixed anxiety and depressed mood. 9. A CT scan of the lumbosacral spine dated 11 January 2024 showed a mild to moderate broad-based posterior disc bulge in central canal stenosis at L4/5 with impingement of the right greater than left descending L5 nerve roots. There was mild bilateral facet joint arthropathy at L5/S1.[35] 10. A right knee ultrasound dated 18 January 2024 concluded there was sonographic features of medial and lateral meniscal degeneration or tear.[36] An X-ray at that time showed a mild degree of tricompartmental degenerative change of the right knee joint.[37] 11. Dr McKechnie provided a report dated 1 August 2024 noting the 2018 motor accident causing a right knee injury and the subject motor accident causing increased lower back pain, right knee pain, neck and left shoulder pain. 12. The doctor's examination showed "no obvious neurological deficits" and referred the claimant for a cervical and lumbar MRI scan. 13. Dr McKechnie provided a further report dated 11 September 2024. The doctor noted that the MRI scan of the right knee showed chondral loss with no meniscal tear and a small cyst. The MRI scan of the cervical spine demonstrated small disc and osteophyte complexes without thecal sac or nerve root impingement. The MRI scan of the lumbar spine demonstrated a moderate broad-based L4/5 disc protrusion causing moderate canal stenosis and bilateral L5 nerve root compression. 14. In light of the MRI findings, Dr McKechnie recommended further spinal physiotherapy, a trial of Lyrica for neuropathic pain and a CT guided L4/5 epidural cortisone injection. The claimant did not wish to proceed with the injection at this time. The doctor noted decompressive surgery can be offered as a final option if the radicular pain symptoms worsen.

1. Dr John Bentivoglio, orthopaedic surgeon, was qualified by the claimant's lawyers and provided a report dated 18 October 2022.[38] The doctor noted a history of the first motor vehicle accident on 10 April 2018 when the claimant's right knee was injured when it struck the dashboard.
2. Dr Bentivoglio noted the further motor accident on 2 May 2022 when the claimant's vehicle was struck from behind and he sustained injuries to the neck, left shoulder and the back.
3. Examination of the cervical spine showed no muscle spasm and almost full range of movement with no neurological signs. There was a more normal alignment present around the shoulder girdles with loss of movement in the left shoulder.
4. In relation to the lower back, the doctor noted normal motor, sensory and reflex reflexes in the lower limbs with greater than two thirds normal range of movement in the lumbar spine.
5. Dr Bentivoglio opined that the motor accident aggravated pre-existing and previously asymptomatic degenerative changes of the cervical spine with no evidence of nerve root irritation. In respect of the left shoulder the doctor noted there was radiological investigation of some degree of subacromial bursitis and supraspinatus tendinosis which should settle down with time.
6. The doctor opined there was early degenerative changes in the right knee with symptoms and signs consistent with post-traumatic chondromalacia patella caused by the direct blow to the knee on the dashboard.
7. In respect of the lumbar spine, the doctor noted there was no investigations but assumed there was some evidence there was some degenerative changes present in the lumbar spine which had become symptomatic following the motor vehicle accident.

1. Mr Mohammed was examined by Medical Assessor Oates on 1 September 2025.
2. The medical examination findings are:

• Cervical spine - soft tissue injury
• Right knee - soft tissue injury
• Lumbar spine - soft tissue injury
• Left shoulder - soft tissue injury

Mr Mohammed attended for Panel re-examination by Medical Assessor Oates on behalf of the Panel alone, at the PIC Medical Suites on 1/9/2025.

Pre-accident medical history and relevant personal details

Mr Mohammed is a native of Sudan, where he completed a medical degree and worked as a medical practitioner, then worked in Dubai as a doctor for four years, before coming to Australia in 2004.

He completed a three-year Masters degree in Paediatric Medicine at University of Sydney and then went to Dubai and did further work as a doctor, returning to Australia in 2018, since when he has been a self-employed taxi driver.

He has done one part of the examinations to gain recognition of his medical qualification in Australia, but not the second part, the clinical examination, as yet.

He is married with four children aged between five and 16 years. His wife has recently started working as a child carer in a childcare centre. The family lives in a house.

He developed type 2 diabetes mellitus in February 2024 and was on Metformin, but this has since been changed to Xigduo taken twice daily. He also takes Vitamin D and calcium.

He had a previous motor accident on 10/4/2018 when he was proceeding in his taxi through an intersection and was T-boned on the passenger side by another vehicle. His right knee hit the dashboard.

He saw a GP the next day and was treated with analgesics and had an x-ray and then physiotherapy. He was off work two or three months and then returned to work part-time and gradually back to full-time duties as from 28/5/2021, according to the GP record.

He tells me that Allianz, the CTP insurer, closed his case about one month ago, telling him that the right knee was a minor injury.

I asked the claimant about a GP record of 14/3/2022 detailing sudden onset of low back pain, for which Mobic was prescribed. The medical record did not contain any further reference to the low back before the subject accident. He did not recall this but did recall a visit around the same time for an ear infection and this was detailed in an earlier GP record in February 2022.

He did agree with the record that his right knee was sore, and he had an x-ray on 14/3/2022. He said there was no new incident to the knee and that knee pain had been present intermittently since the accident of 2018.

He said on 2/5/2022, around midnight, he was driving his taxi with no passengers. He had a seatbelt on. He was the first vehicle at an intersection waiting at a red light, when he was rear-ended by a following sedan. He says his vehicle was pushed about five metres forward across the intersection, but there was no secondary collision. No airbag deployed.

His taxi was written off. He said he didn't recall the collision but doesn't think he hit any body part inside the cab, and he was not bleeding. He 'came to' when the other driver tapped him on the shoulder to apologise.

He called the police and ambulance, but his wife arrived in the meantime and drove him to Concord Hospital. He was feeling neck pain, low back pain and left shoulder pain. He was assessed by nurses, but left before seeing any doctors because the hospital was very busy at that time of the night.

History of symptoms and treatment following the motor accident

He saw a GP, Dr Abulkalan Mohiuddin, on 4/5/2022 and was referred for investigations.

An ultrasound of the shoulder on 13/5/2022 showed mild supraspinatus tendinosis but no tear.

X-ray and CT cervical spine of 4/5/2022 showed normal cervical lordosis with mild multi-level uncovertebral and facet joint degenerative changes. There was no high-grade central canal or neural exit foraminal narrowing and no nerve root impingement on the CT scan.

He had physiotherapy to the neck, left shoulder and back. He had short-term relief from physiotherapy, which also included acupuncture and cupping.

He had further x-ray of cervical spine on 17/8/2022 because of ongoing neck pain with mild restriction of rotation movement. The spine was normally aligned with no fracture but mild spondylosis at C4/5 and C5/6, with no high-grade foraminal narrowing present.

He was seen by Dr Bentivoglio for an IME on 18/10/2022. He assessed lumbar spine DRE II, neck DRE II, left shoulder 6% upper extremity impairment, and right knee 2% whole person impairment from patellofemoral pain.

He then saw Dr Elsadig Mohammed, his usual GP, on 22/12/2022. He still had neck, back and left shoulder pain. He was told to continue physiotherapy.

He then saw an exercise physiologist for about six months and found better results with this strengthening program than physiotherapy.

He was taking Panadol and an anti-inflammatory such as ibuprofen or Voltaren, along with Panadeine Forte, but unfortunately, he developed some upper gastrointestinal symptoms and had to minimise medication.

In the meantime, he had ongoing knee pain and had an ultrasound of the right knee on 18/1/2024 showing a bulging of medial meniscus, indicating possible underlying degenerative change or tear.

He had a CT scan of the lumbar spine on 16/1/2024. There was mild to moderate disc bulge and central canal stenosis at L5/S1 impinging on the right greater than left descending L5 nerve roots, as well as the right exiting L4 nerve root.

Given Mr Mohammed's description of right buttock and upper anterolateral thigh pain in the right L4 and/or 5 nerve roots are suggested targets if CT-guided steroid injection is to be considered.

He then saw Dr Farhan, another GP at the same clinic, on 19/4/2024 complaining of ongoing right knee pain and back pain, with bilateral posterior radicular pain in the legs, and he requested MRI scan of right knee and lumbar spine.

I asked the claimant, and he said this was the same problem with the back and there was no new incident to prompt these investigations of either the right knee or the lumbar spine. These scans were not done, presumably because of being ordered by a general practitioner.

As he was not improving, he was referred to Dr McKechnie, neurosurgeon, on 5/6/2024. He had a CT scan lumbar spine and CT right knee on 12/6/2024 in place of the MRI scan. He was seen by this specialist on 1/8/2024 and referred for MRI of cervical spine and lumbar spine and right knee.

On 7/9/2024, MRI right knee showed chondromalacia patellae and Grade 3 lateral femoral condyle chondrosis, but no meniscal or ligament tear.

An MRI scan of cervical on 5/9/2024 showed mild spondylosis and an MRI scan lumbar spine of even date showed L4/5 posterior annular tear and broad-based bulge in a desiccated disc.

He was reviewed by Dr McKechnie on 11/9/2024 complaining of low back pain radiating to the left posterolateral thigh and leg, as far as the foot, with tingling and numbness with sitting. He was given Lyrica for neuropathic pain and ordered a CT-guided L4/5 epidural cortisone injection. This was eventually performed on 21/3/2025 and helped for about two weeks.

His GP had in the meantime referred him for an ultrasound of the left shoulder because of ongoing left shoulder pain and this was done on 2/1/2025 showing a partial-thickness tear of supraspinatus tendon.

Dr McKechnie advised disc replacement surgery, but he declined, as this would need six months off work to rehabilitate and he couldn't afford it, having four children to provide for.

He attended Westmead Hospital Neurosurgery outpatients for second opinion and on 13/3/2025 they advised anterior lumbar interbody fusion for discogenic low back pain and bilateral radicular pain, but he also declined because of the long absence from work required as part of the post-operative recovery, which he could not afford to undertake financially.

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

He has constant low back pain. He was having pain down the right leg, but this is much better now but he still has pain in the left leg and numbness in the lower left leg and into the foot. The low back pain radiates to the left posterolateral thigh and leg. The pain in the leg and tingling is made worse with prolonged sitting or prolonged standing. When the back pain is severe, he can sometimes have urinary incontinence.

The neck pain is still there and worse with the pressure from the seatbelt across the right supraclavicular area when driving, so he has to change position and has been caught several times by the seatbelt camera.

His left shoulder has improved, but he still can't move it fully overhead.

He continues to have intermittent right knee pain centred over the medial joint line when he walks or stands for too long, and he can't kneel comfortably and finds it painful to negotiate stairs.

He no longer takes the Lyrica. He takes Voltaren or Nurofen as an anti-inflammatory and Panadol or Panadeine Forte and requires medication for his back pain every one or two days.

He was of proportionate build with height 173cm and weight 86.2kg.

There was no guarding or spasm, but tenderness left C6/7 and left lower paracervical muscles.

Flexion and extension were three-quarters of normal. Lateral flexion was two-thirds of normal bilaterally with complaint of left-sided neck pain when flexing to the right. Rotation was two-thirds of normal bilaterally.

Reflexes, power and sensation in the upper limbs were normal.

Upper arm girth; right 29cm, left 28cm at 10cm above the elbow. Forearm girth; right 27cm, left 26.5cm at 5cm below the elbow - results consistent with stated right hand dominance.

No spasm or guarding. Tenderness L5 centrally and to the left side.

Flexion and extension one-half normal with complaint of low back pain at the end of extension. Lateral flexion three-quarters to the right and two-thirds to the left with complaint of low back pain.

Rotation of the thoracic spine was three-quarters of normal bilaterally.

Reflexes were normal with bilateral flexor plantar responses. Power right equals left with pain inhibition from low back pain affecting left eversion and left knee extension. Sensation in the lower limbs intact.

Thigh girth; right 47.5cm, left 47cm at 10cm above the patella. Calf girth; right 36cm, left 36.5cm at 12cm below the patella.

Slump test negative bilaterally. Supine straight leg raising; right 60° with complaint of low back pain and left 30° with complaint of low back pain but negative stretch.

Right knee 0 - 130° of flexion, left knee 0 - 140° of flexion.

There was no patellofemoral crepitus or tenderness in either knee. There was no anteroposterior or mediolateral instability in either knee.

Active range of movement in joints measured with a goniometer.

SUMMARY OF RELEVANT RADIOLOGICAL MEDICAL IMAGING AND OTHER INVESTIGATIONS

To this examination, the claimant brought the following :

• 12/11/2020 - MRI right knee
• 5/9/2024 - MRI spine and 6/9/2024 - MRI right knee - both on CD.

I examined the films of the MRI, and I agree with the report.

• Cervical spine - soft tissue injury
• Lumbar spine - soft tissue injury
• Left shoulder - soft tissue injury

There were pre-existing degenerative changes which were likely aggravated in the cervical and lumbar spines.

The accident was a cause of these injuries because they are mentioned in the Application for Personal Benefits and in the contemporaneous medical records."

1. The review is a new assessment of all matters with which the medical assessment is concerned.
2. The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[39] and Insurance Australia Ltd v Marsh.[40]
3. The Panel has met and adopts the examination findings of Medical Assessor Oates supplemented by the following reasons.
4. The Panel adopts the reasoning in David v Allianz Australia Ltd[41] that radiculopathy can be present at any time to establish that the injury is not a threshold injury for the purposes of the MAI Act. The Panel adopts the further reasons in QBE Insurance (Australia) Pty Ltd v Chebat[42] clarifying the misconceptions stated in Merhi v Insurance Australia Ltd.[43]
5. The decision of David was applied by the Supreme Court in Allianz Australia Insurance Ltd v Susak[44] and the proposition was not disputed on appeal to the Court of Appeal.[45]
6. We adopt the reasoning in Lynch v AAI Ltd[46] that the claimant bears the onus of proof in establishing that any injury is not a threshold injury for the purposes of the MAI Act. That conclusion is consistent with the observations in Briggs v IAG Ltd (No 2):[47]

"The second review panel did not address the question of whether on the balance of probabilities the motor vehicle accident caused the annular tear even though there might be no scientific certainty."

1. We also adopt the reasoning in Lynch[48] that the claimant bears the onus of proof in establishing that any injury is not a threshold injury for the purposes of the MAI Act.
2. The Panel met following the examination by Medical Assessor Oates. We adopt the examination report of the Medical Assessor and add the following further reasons.

1. We accept that the claimant suffered a soft tissue injury to the cervical spine based on contemporaneous complaint, the absence of prior neck symptoms and the nature of the motor accident causing a whiplash type injury to that region.
2. We did not identify any change in pathology to the cervical spine that would satisfy the meaning of a non-threshold injury. There is no evidence on scan of partial or complete rupture of disc fibrocartilage in the form of annular tear or fissure.
3. There is no record of a clinical sign of radiculopathy as defined in the Guidelines in any clinical record. There are otherwise no recorded signs of radiculopathy in both the detailed examination findings of the original Medical Assessor and Medical Assessor Oates.

1. The motor accident did not cause injury to or aggravate the right knee condition for the following reasons.
2. The claimant suffered a right knee injury in the 2018 motor accident with ongoing complaints of pain evidenced by the various treating records.
3. There is an absence of complaint of right knee injury following the motor accident. The absence of contemporaneous complaint is relevant but not determinative to the issue of causation: Norrington v QBE Insurance (Australia) Ltd,[49] and AAI Ltd v McGiffen.[50]
4. The claim form for this motor accident does not refer to right knee injury.
5. An inclusion of injury in the claim form is relevant to establishing causation: Bugat v Fox.[51] Accordingly, the absence of complaint of injury to a body part must also be relevant to the issue of causation.
6. The claimant, in the history provided to Medical Assessor Oates, accepted that there were no post-accident symptoms in the right knee.

1. The left shoulder ultrasound dated 13 May 2022 showed mild changes of supraspinatus tendinosis with no evidence of a tear and mild subacromial/subdeltoid bursitis.
2. The left shoulder scan included in the GP clinical records of 26 April 2025[52] showed a partial thickness anterior portion tear for the supraspinatus tear.
3. The 2025 left shoulder scan is contained in the material served by the claimant and provided to the insurer. There were no relevant submissions on the significance of the 2025 ultrasound although injury to the left shoulder was referred for assessment. Accordingly, following the medical examination and the Panel's further conference, the insurer was directed to make any submissions on the significance of this finding.
4. The insurer promptly responded to the Panel's direction. It emphasised the following factual matters:
   • the GP record dated 4 May 2022 noted abduction to 90 degrees and a positive impingement test;
   • the ultrasound dated 4 May 2022 was reported as showing no evidence of a tear;
   • Dr Bentivoglio diagnosed left shoulder subacromial bursitis and supraspinatus tendinosis;
   • Medical Assessor Woo on 22 January 2024 reported that left shoulder pain had resolved after six months although noted mild anterior tenderness;
   • Medical Assessor Woo on 27 September 2024 noted the claimant's report of left shoulder pain on driving;
   • Dr Mohammed in a January 2025 medical certificate diagnosed a soft tissue injury. Subsequent certificates confirmed this diagnosis (supraspinatus tendinosis and bursitis), and
   • the claimant had physiotherapy for the back only in January 2025.
5. The insurer highlighted the findings of the initial ultrasound and the diagnosis of Medical Assessor Woo and Dr Bentivoglio. It highlighted the delay in the second ultrasound and disputed the causative relationship between the accident and the tear identified in the 2025 ultrasound.
6. The insurer otherwise advised that it "reserves the right to rely on further evidence".[53]
7. We note that the parties are obviously aware that we are deciding the issue of threshold injury. The insurer in its recent submissions did not request leave to rely on further evidence but that it "reserves the right". How or when that reserved right was to be exercised was unspecified. The insurer did not assist in how we should act or respond to this submission.
8. The Panel accepts that the motor accident caused the partial thickness tear of the supraspinatus tendon shown in the recent ultrasound for the following reasons.
9. The reading of ultrasound scans is notoriously dependent on the skills of the interpreter. A negative finding is not conclusive of absence of pathology. This is particularly apposite in these circumstances where the claimant had contemporaneous onset of left shoulder symptoms of rotator cuff pathology and ongoing problems which were not resolved with physiotherapy.
10. There is no history of any explanation of a prior or subsequent incident which explains the tear.
11. The second ultrasound scan is reported as being undertaken based on a continuity of symptoms in the left shoulder since the accident[54] which was unresponsive to treatment.
12. The findings in the 2025 ultrasound are consistent with the examination findings of Medical Assessor Oates that, whilst range of movement has improved, the claimant cannot fully move overhead (abduct).
13. There was an absence of prior left shoulder problems and an immediate recorded complaint of left shoulder pain following the motor accident. The initial attendance before the GP noted "limited abduction of left shoulder" and positive impingement which is highly suggestive of trauma to the rotator cuff (supraspinatus tendon).
14. The motor accident involved a significant rear-end collision shunting the claimant's vehicle forward. This would have caused considerable forces through the left shoulder when the claimant was holding the steering wheel. These forces are sufficient to cause the tear shown on the recent ultrasound.
15. The recent ultrasound was, because of the date, not viewed by either Dr Bentivoglio or Medical Assessor Woo.
16. Dr Bentivoglio's examination findings noted limited left shoulder movement.[55] We interpret his diagnosis in October 2022 as based on the original scan.[56]
17. We note that in January 2024 Medical Assessor Woo recorded cessation of left shoulder pain after six months, but his findings record considerable loss of left shoulder abduction and mild anterior tenderness.[57] That examination finding is consistent with the pathology shown on the 2025 ultrasound. In the latter report Medical Assessor Woo noted left shoulder pain on driving and under pressure.
18. Our view is that the examination findings of Dr Bentivoglio and Medical Assessor Woo are consistent with what was demonstrated on the ultrasound.
19. We consider the bare diagnosis in the various certificates without an explanation by the GP of no assistance in the resolution of this issue. The absence of physiotherapy in January 2025 is another submission of no moment particularly in circumstances where the claimant is, at that time, reporting left shoulder pain to his GP and undergoing a further shoulder ultrasound.
20. For these reasons, we are satisfied that the progress ultrasound scan of the left shoulder in January 2025, showing partial-thickness tear of the supraspinatus tendon was caused by the motor accident. This injury is not a threshold injury because it is a partial rupture of a tendon.

1. This is a threshold injury. There is evidence of an annular tear in a degenerative L4/5 disc shown on the MRI scan. This tear is very likely a pre-existing condition consistent with the extensive degeneration seen at the L4/5 disc such as disc desiccation and the claimant's age. The finding of disc desiccation (drying of the disc) indicates chronic pathology.
2. We accept in light of the contemporaneous complaint and the nature of the motor accident that there was an aggravation of the underlying degenerative condition in the lower spine. However, we are not satisfied on balance of probabilities that the motor accident caused an extrusion of the disc compromising the intervertebral disc margin consisting of the annulus fibro-cartilaginous material and or caused or further extended the annular tear.
3. We cannot identify any facts that would persuade us on the balance of probabilities that the obvious degenerative pathology at the L4/5 disc was sufficiently comprised to satisfy the definition of an injury which is not defined as a threshold injury. The claimant reported low back pain shortly after the accident. The complaint of contemporaneous pain is consistent with rendering the degenerative condition in the low back symptomatic. Otherwise, the reading of the scans by the Medical Assessor does not support a conclusion that the pathology at L4/5 as shown in the recent MRI scan is traumatic and attributable to the motor accident.
4. There was no finding of lumbar radiculopathy on clinical examination before Medical Assessor Oates or in the documents showing any criteria of radiculopathy as required by the Guidelines.

1. Whilst the overall outcome is the same, the findings of the Panel on what was the non-threshold injury is different. Accordingly, the medical assessment certificate issued by Medical Assessor Woo is revoked. The new medical assessment certificate is attached at the commencement of these Reasons.

[6] Sections 3.11 and 3.28 of the MAI Act.

[12] This sub-section was amended by Amendment Act, Schedule 1[5].

[14] See s 3B(2) of the Civil Liability Act 2002.

[15] [2021] NSWSC 13 (Raina) at [65].

[39] [2021] NSWCA 287 at [40], [41] and [45].

[40] [2022] NSWCA 31 at [11], [21] and [64].

[41] [2021] NSWPICMP 227 at [84]- [104].

[42] [2024] NSWPICMP 611 (Chebat) at [87]-[93].

[43] [2024] NSWPICMP 316.

[44] [2024] NSWSC 1359 at [91].

[45] Allianz Australia Insurance Ltd v Susak [2025] NSWCA 91 at [37] and [75].

[46] [2022] NSWPICMP 6 at [44]- [62].

[47] [2022] NSWSC 372 (Briggs (No 2)) at [73].

[49] [2021] NSWSC 548 (Norrington).

[50] [2016] NSWCA 229 at [64]- [66].

[51] [2014] NSWSC 888 at [31]- [32].

[52] See further bundle, Lakemba Medical Centre, p 26.

[53] Insurer's further submissions. [7].

[54] See further bundle, Lakemba Medical Centre, p 26.