REVIEW PANEL ASSESSMENT OF TREATMENT AND CARE - CAUSATION

Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 (MAI Act)

1. The Review Panel confirms the certificate dated 7 February 2025.

REVIEW PANEL ASSESSMENT OF TREATMENT AND CARE - REASONABLE AND NECESSARY

Certificate issued under s 7.23(2) of the MAI Act

1. The Review Panel confirms the certificate dated 7 February 2025.

REVIEW PANEL ASSESSMENT OF TREATMENT OR CARE - IMPROVING RECOVERY

Certificate issued under s 7.23(1) of the MAI Act

The Review Panel confirms the certificate dated 7 February 2025.

1. On 28 January 2023, Auena Pi (the claimant) was involved in a motor vehicle accident which occurred around 9.00am on a dry day in a 60 km/h zone. The claimant was the seat-belted driver of her vehicle. The vehicle in front of her slowed down and the vehicle behind her side swiped the rear passenger side of the claimant's vehicle. Her airbags did not deploy. Her vehicle was capable of being driven following the accident.
2. The claimant maintains that the accident caused injuries to her neck, back and left shoulder. The claimant concedes she had problems with all three areas in the past. Initially, the claimant did not seek any treatment. She eventually consulted her local general practitioner whose clinical notes indicated that the claimant had significant problems with her neck in the past.
3. AAI Limited t/as GIO (the insurer, GIO) indemnifies the owner and/or the driver of the at-fault vehicle for liability to pay the claimant any damages under the Motor Accident Injuries Act 2017 (Act). The insurer admitted liability for benefits after the first twenty-six weeks as the claimant was not wholly or mostly at-fault and her injuries were assessed as "non-threshold injuries" for the purposes of the Act.
4. The claimant's treating orthopaedic surgeon, Dr Calvin Chien, recommended that the claimant undergo a left shoulder arthroscopy, repair of subscapularis and biceps tenodesis. That request was declined as the insurer was not satisfied that the proposed surgery related to the subject accident. That decision was confirmed upon internal review.

(a) whether any treatment and care provided is reasonable and necessary in the circumstances under Schedule 2, cl 2(b) of the Act;

(b) whether any treatment and care relate to an injury caused by the accident under Schedule 2, cl 2(b) of the Act, and

(c) whether treatment or care provided to an injured person will improve the recovery of the injured person under Schedule 2, cl 2(c) of the Act.

1. The dispute was referred for determination by Medical Assessor Graham Gumley who certified on 7 February 2025 as follows:

Surgery to repair subscapularis tendon and relocation and stabilisation of the bicep's tendon RELATES TO THE INJURY caused by the motor accident.

Surgery to repair subscapularis tendon and relocation and stabilisation of the bicep's tendon IS REASONABLE AND NECESSARY in the circumstances.

Surgery to repair subscapularis tendon and relocate bicep's tendon WILL IMPROVE the recovery of the injured person.

1. Under the heading "Summary of relevant radiological and medical imaging and other investigations," Medical Assessor Gumley said as follows:

"Imaging undertaken for conditions prior to the motor vehicle accident indicate areas of left shoulder pathology involving different anatomical structures than that following injury. Professor Korber has noted the requirement for forced external rotation of the shoulder (or the equivalent resisted internal rotation) and that this is unusual in a traffic accident.

The mode of impact and the direction of her body's momentum while gripping the steering wheel can produce such a strain. The injury is traumatic and this is the only trauma event recorded."

Medical Assessor Gumley stated that no additional radiological and medical imaging was brought to the assessment.

1. Medical Assessor Alexey Sidorov certified on 16 September 2025 as follows:

The following injury caused by the motor accident:

• major depressive disorder with anxious distress,

is NOT a THRESHOLD INJURY for the purposes of the Act.

President's delegate Tajan Baba decided on 18 November 2024 that there is reasonable cause to suspect that the medical assessment by Assessor Sidorov was incorrect in a material respect. Accordingly, the insurer's review application was accepted and will be referred to another Review Panel.

1. The insurer sought a review of Medical Assessor Gumley's certificate, on the grounds that the medical assessment was incorrect, within the meaning of s 7.26 of the Act, in a number of material respects. The insurer relied upon the particulars set out in the application and supporting documentation.
2. The insurer brought the application within the time prescribed by s 7.26(10)(a) of the Act and cl 34 of Procedural Direction PIC 7 (28 days).
3. The insurer's grounds for review were as follows:

(a) failure to adequately consider the relevant material and consideration of incorrect history;

(b) failure to provide sufficient reasons;

(c) failure to afford procedural fairness;

(d) failure to consider or address a substantially made argument in relevant submissions made on behalf of the insurer regarding the relevant material, and

(e) materiality of the error.

Particulars were given in support of each of those advance grounds for review.

1. The insurer submitted the Medical Assessor's consideration of the material provided by the insurer is insufficient and, in some cases, completely silent. The insurer notes Medical Assessor Gumley makes no mention of Dr Bentivoglio, orthopaedic surgeon, who provided a report dated 16 August 2024, which was included in the insurer's material and addressed in detail in its submissions. The insurer further notes the opinion provided by Dr Bentivoglio in respect of the left shoulder is of significance to the issue which was to be determined by Medical Assessor Gumley. The insurer says his failure to mention that opinion, or provide any consideration of the same, amounts to a material error.
2. In brief summary, Dr Bentivoglio concluded that, considering the nature of the impact and the diagnostic imaging, he did not consider any of the claimant's symptoms related to the subject accident. He thought that the lamination of the subscapularis tendon may have pre-dated the accident. He did not consider surgery for the claimant's left shoulder would be related to the motor accident.
3. The insurer further submitted that, whilst Medical Assessor Gumley included in his certificate some consideration of Dr Korber's opinion, it is minimal, incomplete and insufficient, given the relevance of the opinion, in respect of the issue to be decided.
4. The insurer's application for review was opposed by the claimant on various grounds. As those submissions were not accepted by the President's delegate, it is not necessary to state them in detail. Briefly, they can be summarised as follows:

(a) The Medical Assessor was not obliged to list every single piece of material he considered;

(b) the insurer's claim that Medical Assessor Gumley failed to consider the opinion of Dr Bentivoglio is incorrect. The mere absence of a direct reference to Dr Bentivoglio's report does not equate to a failure to consider it;

(c) the fact that Medical Assessor Gumley did not refer to specific aspects of Dr Korber's conclusions, does not mean that his report was disregarded;

(d) the claimant refutes the insurer's submission that Medical Assessor Gumley relied on an incorrect history regarding the claimant's pre-accident left shoulder pain. The claimant said that the summary provided in the certificate aligns with the clinical records available to the Medical Assessor;

(e) the claimant submitted that Medical Assessor Gumley provided concise yet clear reasons in support of his determination and did not fail to disclose the full path of reasoning, and

(f) as to the alleged failure to afford procedural fairness, the claimant submitted that Medical Assessor Gumley complied with his statutory obligations, in that he considered the information provided by both parties, conducted a thorough clinical examination, and engaged in reasoning consistent with the available evidence.

1. President's delegate Stephanie Wigan issued a Determination of an Application for Review of a Medical Assessment on 15 April 2025 which stated the satisfaction of the President's delegate there is a reasonable cause to suspect that Medical Assessor Gumley's assessment was incorrect in a material respect. The basis of that decision was stated to be the Medical Assessor's failure to provide sufficient reasons to establish that the insurer's evidence, particularly that of Dr Bentivoglio, had been considered. Accordingly, the insurer's review application was accepted.
2. The Panel is to reassess all of the matters that were referred to Medical Assessor Gumley for determination.
3. Pursuant to cl 128(1) of the Personal Injury Commission Rules 2021 (PIC Rules), the Panel is to conduct and determine the proceedings, in accordance with the procedures determined by the Panel.

1. A medical assessment matter is determined in accordance with Division 7.5 of the Act. The matter is determined at first instance by a Medical Assessor and, on review, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
2. Part 5 of the Personal Injury Commission Act 2020 (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.[1]
3. Rules 127 to 130 of the 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.[2]
4. The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[3]
5. All members of the Review Panel had no previous involvement with the claimant or with this matter.

1. The parties have presented their respective bundles of documents upon which they rely. The Review Panel (Panel) has read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel, or a Panel Member, has not read it, nor taken it into consideration. The same principle applies to parties not referring to, nor specifically relying upon, a document in their own bundle and submissions.
2. The fact that evidence is not referred to in these reasons does not mean it has been overlooked. It is not required that each piece of evidence be mentioned. The Panel is not required to "analyse every piece of information from every opinion contained in a document with which it was provided". The Panel has come to its own conclusions and has taken its own history.

1. The claimant is required to establish that the treatment and care is both "reasonable and necessary". This test differs from the worker's compensation legislation which requires a worker to establish that the treatment and care is "reasonably necessary". There is a stricter requirement under the Act because there is no moderation of the requirement that the treatment and care is "necessary".
2. When discussing the meaning of "reasonably necessary" under s 60 of the Workers Compensation Act 1987 in Clampett v WorkCover Authority of NSW,[4] Grove J stated:[5]

"22. I return to the expression 'reasonably necessary' in s 60. Dictionaries stipulate that 'necessary' as relevant definition as 'indispensable, requisite, needful, that cannot be done without' - (shorter Oxford English Dictionary, 3rd Edition) and 'that cannot be dispensed with' - Macquarie.

1. The essential issue is what effect flows from conditioning such qualities as 'reasonably'. The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word 'necessary' if it stood alone. In order to contemplate such moderation, it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker's home, having regard to the nature of the worker's incapacity, is reasonably necessary. In contemplation of what may be 'reasonably necessary', there is these statutory obligations specifically to have regard to the nature of the worker's incapacity. It provides emphasis towards moderating the meaning of 'necessary' in this context."
2. Similar observations have been made subsequently by the Court of Appeal on the meaning of "reasonably necessary" under other legislation.[6]
3. Factors relevant to, but not determinative of, the criteria of reasonableness in the context of the worker's compensation legislation are well-settled.[7] They include:

(a) the appropriateness of particular treatments;

(b) the availability of alternative treatments;

(c) the costs of the treatment;

(d) the actual or potential effectiveness of the treatment, and

(e) the acceptance by medical experts of the treatment as being appropriate or likely to be effective.

1. Whilst the observations in Diab were directed to the test of "reasonably necessary" in the worker's compensation legislation, we adopt it in so far as they have relevance, although not determinative, of the stricter test of "reasonable and necessary".
2. The words "in the circumstances" in the context of whether the treatment is "reasonable and necessary" must refer to the particular circumstances of the claimant. This is because Schedule 2 of the Act refers to treatment "provided or to be provided to the claimant".
3. The test of "reasonable and necessary in the circumstances" does not direct attention to the relationship between the accident and the treatment. That issue arises from consideration of whether treatment "relates to the injury caused by the accident".

1. The claimant relied upon the following material which the Panel has considered:

Claimant's submissions in review application of Assessor Gumley's certificate

1. On 28 January 2023, the claimant was involved in the subject accident and sustained injuries to her neck, trapezius, lower back, left shoulder, left hip and gluteal, left lower leg and psychiatric injuries;
2. because of persisting symptoms, the claimant underwent a MRI scan of the left shoulder on 16 March 2023 which revealed "mild subacromial bursitis, small intrasubstance scapularis tear and mild tendinosis";
3. the claimant was referred to an orthopaedic surgeon, Dr Calvin Chien. The initial consultation took place on 6 September 2023. Dr Chien noted that the claimant's left shoulder pain started after the accident. He recommended injections;
4. the claimant tried injection to her left shoulder which failed to resolve her symptoms. She had two level C5/C6 and C6/C7 anterior cervical discectomy and fusion surgery on 6 February 2024;
5. the claimant returned to Dr Chien on 20 March 2024. Dr Chien noted that the claimant's left shoulder symptoms had not improved after the cervical spine surgery and noted that her symptoms had not improved since the last consultation;
6. on 26 June 2024, the claimant attended a further consultation with Dr Chien, bringing an updated MRI scan of the left shoulder. The updated MRI scan revealed that the tear had progressed, and the biceps tendon have now subluxed medially. Dr Chien opined that the tear will continue to progress and that the claimant's symptoms will not improve. He suggested a surgery to repair subscapularis tendon and relocate biceps tendon;
7. on 1 July 2024, GIO denied funding approval for the rotator cuff repair and biceps subluxation treatment;
8. on 9 July 2024, the claimant's solicitors requested an internal review of GIO's decision;
9. on 23 July 2024, GIO affirmed its original declinature;
10. there is a dispute between the parties as to whether rotator cuff repair and biceps subluxation surgery recommended by Dr Chien is treatment and care that the claimant is entitled to as per s 3.4 of the MAI Act;
11. the claimant was asymptomatic at the time of the accident and was fit to fulfil her work duty as a company administrator officer on a full-time basis;
12. prior to the accident, the claimant consulted Dr Jane Lee in August 2021, because of left shoulder pain. Dr Lee referred the claimant to an ultrasound scan of the left shoulder, which revealed "bursitis in the left shoulder..... some tendinopathy is also noted in the supraspinatus tendon with no tear seen". Dr Lee referred the claimant to an ultrasound guided steroid injection to the left shoulder, which was effective in pain management;
13. the claimant re-experienced left shoulder pain in January 2022 which was less than the pain she experienced in August 2021. Dr Lee recommended physiotherapy. The claimant's left shoulder pain resolved in the next few weeks;
14. on 8 September 2021, the claimant underwent another ultrasound scan of the left shoulder, which revealed no significant abnormality;
15. the MRI scan of the claimant's left shoulder dated 16 March 2023 (post-accident) shows a "small intrasubstance subscapularis tear";
16. on 7 June 2024, the claimant underwent a further MRI scan of her left shoulder, which revealed "partial thickness articular surface tear at the superior subscapularis footprint consistent with the biceps fully abnormality";
17. there is no evidence that the claimant experienced left shoulder pain between August 2021 and the date of the accident, nor that the tear occurred prior to the date of the accident;
18. in his report dated 18 October 2024, Dr Chien said as follows:

"An ultrasound performed on 30 August 2021, prior to the accident, revealed supraspinatus tendinosis. There was no tear, and the biceps was intact with no mention of subluxation.

An MRI post-accident on 16 March 2023 revealed a subscapularis tendon tear while the supraspinatus was intact. Although they form part of the rotator cuff, these are two different tendons with differing symptoms.

Furthermore, a repeat MRI performed on 7 June 2024 revealed that the subscapularis tear has progressed (as it does so after an injury). The long head of biceps, which is essentially held in place by the superior portion of the subscapularis, is now subluxed because of the subscapularis tear. The supraspinatus tendon remains intact.

Therefore, there is no pre-existing condition of the subscapularis tendon. It was a previous supraspinatus tendon that was mildly inflamed and resolved.

Motor accidents are a common cause of tendon tears in the shoulder. As Auena tried to brace herself, her muscles contracted to protect the rest of her body. The shoulder tendons are usually the weakest link and injury to it occurs from the forceful contraction.", and

1. medical evidence shows that the claimant sustained injury to her left shoulder in the accident. Conservative treatment has failed to resolve the symptoms and the claimant's specialist is now recommending surgery.

MRI cervical spine, lumbar spine, left shoulder report

The Panel notes that the claimant did not comply with the direction to specify with particularity the entries in the clinical notes and/or other treatment records that are said to be relevant to the matters in issue.

1. The insurer relied upon the following material which Panel has considered:

(a) The insurer maintains that the left shoulder surgery is not related to the injuries arising from the subject accident, nor reasonable and necessary in the circumstances, pursuant to s 3.24(2) of the MAI Act. Accordingly, the claimant is not entitled to payment of same;

(b) the insurer notes the claimant has an extensive history of left shoulder complaints outlined in the evidence which it summarises and which it is not necessary to repeat;

(c) the insurer relies upon the opinion of Dr Bentivoglio, orthopaedic surgeon, dated 16 August 2024 which the insurer summarises as follows:

1. Dr Bentivoglio noted from her local doctors' notes she had significant problems with her neck in the past and on 3 July 2017, indicated she had 8 months of history of neck pain which did not settle with conservative treatment. She also had symptoms radiating to her left upper limb and was diagnosed as suffering from neck pain with radiculopathy. He noted MRI scan of her cervical spine on 3 July 2017 indicated multi-level degenerative changes with mild narrowing of the neural exit foramen at C3/C4 with disc osteophyte complex at C4/C5 causing mild effacement at the decal sac and facet joint arthropathy. At C5/C6, there was a minimal disc osteophyte change with severe narrowing of the left neural exit foramen causing likely compression on the C6 nerve root at C6/C7;
2. he said the notes also indicated ongoing problems with severe pain in the left shoulder around 30 August 2021 and recurrence of the pain following a cortisone injection around 24 February 2022;
3. he noted ultrasound results from 30 August 2021 showed evidence of subacromial bursitis and some tendinopathy involving the supraspinatus tendon. There was also reduced range of motion;
4. he noted the claimant continued to experience symptoms in her neck and shoulder and eventually was sent for specialist review. She had physiotherapy for her neck and a CT guided injection for her shoulder with no improvement in symptoms;
5. Dr Bentivoglio noted the claimant attended upon Dr Kim, spinal surgeon, and eventually underwent spinal fusion in February 2024 between C5 - C7. He noted, pre-operatively, she was experiencing symptoms radiating to her left upper limb and to her fingers and hand. She reported that sensation had been improved by the surgery and felt some improvement in her neck symptoms. She was no longer attending upon Dr Kim;
6. when reviewing the radiological scans, Dr Bentivoglio noted the claimant had undergone MRI scan of her cervical spine in 2023 and 2024. He stated the abnormalities noted were exactly the same as were seen on her MRI scan of her cervical spine in July 2017, allowing for natural progression of the degenerative changes;
7. Dr Bentivoglio stated he reviewed the photographs of damage to the claimant's car and did not identify any significant damage. He indicated he had an interest in biomechanics and would consider it unlikely there was horizontal or lateral translation of her neck and back as a result of the impact. He believed the same in respect of her shoulder;
8. in relation to the left shoulder, Dr Bentivoglio diagnosed tendinopathy involving the rotator cuff tendon with some delamination of the subscapularis tendon and evidence of subacromial bursitis;
9. in respect of the relationship of her injuries to the accident, Dr Bentivoglio commented, "Noting the damage to this lady's vehicle and the lack of evidence of any front and damage to the vehicle that struck her and her significant pre-accident history, I do not consider any of her symptoms relate to the subject accident.";
10. Specifically in relation to her left shoulder, Dr Bentivoglio opined that:
    • there has been a minor alteration in the investigation done of her left shoulder and a more accurate investigation of the MRI showed some delamination of the subscapularis tendon. He considered the changes may have pre-dated the accident;
    • he stated, given the damage to the car, he would have difficulty accepting the impact could have cause any damage to her left shoulder, whether an aggravation, or a specific injury;
    • he believes that the claimant would have experienced similar symptoms in her left shoulder irrespective of the motor accident;
    • he did not consider surgery for her left shoulder would be related to the motor accident, and

(d) the insurer also relies upon the opinion of Dr Korber, radiologist, dated 15 July 2024, which the insurer summarises as follows:

• Dr Korber noted that, following the accident, the claimant underwent MRI scan of her left shoulder on 16 March 2023. He noted the scan identified minimal thickening of the subacromial bursa subscapularis tendinosis with an insertional intra substance tear. He commented these tears are degenerative or due to overload;
• Dr Korber suggested the intrasubstance subscapularis tear is degenerative as to injury to that area would require forced external rotation. He noted acute rotator cuff tears in the shoulder in motor accidents are rear. He concluded the findings in the left shoulder on MRI are minor and, in his opinion, are not consistent with an acute injury. He considered that was consistent with the clinical history that her shoulder symptoms were relieved by cervical spine injections, and

(e) the insurer notes the extensive history of left shoulder symptoms prior to the subject accident, which had commenced in 2015 and continued up to the time of the accident, with the last reported pre-accident complaint being on 9 November 2022, approximately two months prior to the subject accident;

(f) in this regard, the insurer says that the claimant's submission that there is no evidence indicating the claimant experienced left shoulder pain between August 2021 and the date of the accident is incorrect, based on the clinical history;

(g) the insurer notes the claimant's reliance upon the treating opinion of Dr Chien and submits there is no evidence he has been provided with or considered the extent of the relevant pre-accident medical evidence and, on that basis, submits little weight can be given to his opinion in respect of causation, and

(h) the insurer submits the overwhelming evidence indicates the claimant's left shoulder condition and investigative findings are not related to the subject accident. The insurer maintains that the disputed treatment is not related to the injuries caused by the accident, nor is it reasonable and necessary in the circumstances.

Insurer's submissions in support of submissions of late documents being report dated 16 August 2024 by Dr Bentivoglio, report dated 15 July 2024 by Dr John Korber, supplementary report dated 25 November 2024 by Dr Korber and clinical notes of Kang Nam Surgery including Dr Hyun Sang Cho

The insurer's solicitors asked Dr Korber to comment in relation to MRI scans of the left shoulder from 7 June 2024 and 16 March 2023. Dr Korber reported as follows:

"Unfortunately, the 2024 imaging is only partial and does not show subscapularis on the axial plane which is the ideal plane for viewing. The 2023 images are now complete and do indeed demonstrate an abnormal subscapularis. The biceps tendon is not particularly medialised. It is certainly within the groove inferiority and in the middle. At the very top, this is always difficult to tell as the tendon goes around the corner in this region. I would agree with the 2023 report. The limited imaging of the 2024 biceps tendon demonstrates it also within the groove and to be flat normal tendon.

The ultrasound examinations of 2021 were reviewed. I would not regard ultrasound as being sufficiently sensitive to diagnose an articular surface tear unless performed by an expert. However, there is a possible lamination tear in the ultrasound (F1). Given that the MRI basically reports the subscapularis is the only abnormality, it is reasonable to suggest that it pre-existed, as outlined below.

When reading the clinical history given for the ultrasound of the left shoulder on 30 August 2021 as being "history of pain in the left shoulder for a few months with decreased range of movement on external rotation noted", external rotation would be a symptom of subscapularis abnormality. The second ultrasound on 8 September 2021 was performed for post-vaccination pain so is probably not relevant.

As previously suggested, the mechanism of injury is inappropriate for a subscapularis tear. This is confirmed by Dr Bentivoglio's report. A search of the literature would also suggest that fall on the outstretched hand can cause subscapularis tears as can a sudden abduction of the arm. In the context of a motor vehicle accident, the arm is adapted to the side of the body and very likely to be forcefully adapted. As with all the rotator cuff tendons, the common cause of abnormality is degenerative change. Dr Bentivoglio also felt that shoulder translation was unlikely as he said "I also believe that is the same for her shoulder" referring to it being unlikely that there was any lateral translation.

On the balance of probabilities, the subscapularis tear pre-existed the accident."

Records produced by Spine Plus Chiropractic Eastwood

Records produced by Top Chiropractic and Acupuncture

As with the claimant, the insurer did not comply with the Panel's direction to specify with particularity the entries in the clinical notes and/or other treatment records that are said to be relevant to the matters in issue.

1. The report of the Medical Assessor Margaret Gibson is as follows:

"Ms Pi attended as arranged. She was accompanied by a Korean interpreter, Ms Brooks (29320). She is currently 41 years of age. She brought no imaging with her today. She is left hand dominant.

Ms Pi was born in South Korea. She completed high school and then partially completed a university course.

She arrived in Australia in 2009. She commenced part-time employment as a Korean teacher. She had then worked full-time with her husband's company (he is a stonemason).

She has not worked since the subject accident. When asked, she said her husband now manages the administration himself.

Ms Pi lives with her husband in a 3-bedroom, 2-bathroom unit. There is one step to enter into their unit. They have no children.

She hasn't driven a car since the subject accident, although she still holds and renews a driving licence. She said her husband helps her a lot around the unit despite him working full time. He does the laundry and the shopping. She would accompany him to the shops on about 6 out of 10 times although she does not carry anything heavy. She said her mother used to help out as well, but she has now returned to Korea as her visa expired. Ms Pi said they had had a cleaner paid for by the CTP insurer, but not for the last two months.

Ms Pi had a previous left shoulder issue. She said she had received a Covid vaccine and two days later had developed a painful left shoulder. She had been under the care of general practitioner, Dr Cho. She was referred for an ultrasound which demonstrated some inflammation. She said her symptoms had resolved and there were no further issues with the shoulder until after the subject accident. She denied having had any other history of shoulder problems.

There were no other accidents or injuries, in particular no other motor vehicle accidents. There were no relevant medical problems.

She said her regular general practitioner was Dr Kheng Mam, however, after the accident, she started to visit the J Medical & Cosmetic Centre in Lidcombe on the advice of a friend. She thinks she started seeing this doctor about 1 or 2 weeks after the accident. She volunteered that her previous doctor was "too old" and only told her to take paracetamol.

Ms Pi had been driving a late model VW T-Roc. There were no passengers in the car. She was on her way to meet a friend. She was travelling along Silverwater Rd towards Lidcombe. She was in a 60km zone and travelling at legal speed. She was approaching a red light, so she slowed down to about 40-50km. Then, suddenly her car was hit from behind. When asked she said she was sitting with her hands on the steering wheel. The impact was to the rear passenger side door and the back wheel. She described her car being jolted and winding up at 45 degrees to its original position on the road. She said she was thrown to the right with the impact and had struck her head and also her right shoulder. When asked there were no obvious marks from the impact.

The driver of the other vehicle got out and asked her to move her car. She said at the time she felt blank. She vomited and she said the general practitioner had later told her that she must have been concussed.

She eventually managed to drive her car into a nearby business premises to get it off the road and out of the traffic. She said that at that stage she was quite shaky. However, the business owner told her to move the car, so there was a pressure to have details exchanged with the other driver in order to exit the premises. She had then moved her car to a nearby lane where she remained for 1-2 hours. She contacted her husband.

She said at that stage she just wanted to go home. She drove the car home, which had taken about 10-15 minutes. Then she fell asleep.

When her husband arrived home, they called their regular general practitioner but as it was a Saturday afternoon they couldn't get an appointment. They eventually attended the practice on the Monday.

She said there was no pain initially, as she was in quite a shocked state. When asked to clarify the left shoulder symptoms, she said that there had been a throbbing pain over left side of face, left side of neck, all over left shoulder and spreading to fingers of left hand. She said her low back was less problematic at that stage so she may not have mentioned it earlier on to the general practitioner.

Ms Pi takes Nurofen Plus (ibuprofen and codeine) 6-10 tablets a day. She also takes 5 different medications for depression, panic, anxiety, sleep and nightmares. However, she couldn't recall the names of any of these.

She said she had two injections to her shoulder and she was referred for cervical spine injections, but following these her symptoms only got worse.

She said her left shoulder hasn't really improved since the spinal surgery.

The only other planned treatment was the recommendation by Dr Calvin Chien for shoulder surgery. She had last visited Dr Chien about a year ago and then she had seen him on a total of 3 or 4 occasions.

Ms Pi described pain felt over the anterior, superior and lateral aspect of her left shoulder. She said the pain was very severe and can reach 10/10 severity. There was still a lot of tension over the left side of neck. She does obtain some degree of relief with analgesia. Then the pain level then reduces to 6/10.

She said that she has gained 40kg since the accident.

Ms Pi had a stocky build. She had a normal gait. She was 160cm tall, weighed 104kg.

Neck movements were restricted in all planes to a third normal. There was no muscle spasm or guarding. There was a small surgical scar over the anterior aspect of the neck.

On examination of the shoulders, no impingement was demonstrated. Speed and Yergason tests were positive active movements were as follows:

On examination of the upper limbs, circumferential measurements suggested wasting of the left dominant limb. Arms measuring 44cm on the right, 43cm on the left and forearms 27cm bilaterally. Upper limb neurology was unremarkable.

On 28 January 2023, Ms Pi had been driving at about 40-50km when her car was suddenly hit from behind. When asked she had said that at the point of impact she had been sitting with her hands on the steering wheel. She described the car being jolted and as a consequence she was thrown to the right striking her head and right shoulder. The panel were of the opinion that the force of the impact was sufficient to bring about a tear in the left shoulder tendon as she was forcibly thrown in the other direction.

She said she had subsequently developed a throbbing pain over the left side of face, left side of neck, all over left shoulder and spreading to fingers of left hand.

She had visited her general practitioner, Dr Nam. He had recorded he visit on 30 January 2023 in his handwritten clinical notes. He noted there was neck pain and left arm paraesthesia. On examination there was left sided neck pain and tenderness, left shoulder and arm paraesthesia and reduced left shoulder movements. The only imaging referral was for the neck. At review on 13 February 2023 he noted left side neck, shoulder, arm pain.

The panel were of the opinion that symptoms from a small left shoulder tear may well have been masked by the more severe symptoms arising from her neck.

On visiting Dr Hajeong Lee on 15 February 2023, referral was indeed made for imaging of her left shoulder.

IME, Dr Bentivoglio had concluded the findings on the left shoulder MRI may have pre-dated the accident and she would have experienced similar symptoms in the left shoulder irrespective of the accident. He did not believe the circumstances of the subject accident would have led to the left shoulder pathology which is the subject of the proposed surgery. Specialist radiologist Dr Korber had concluded on 15 July 2024 that the MRI findings were minor and not those of an acute injury. He stated "the intrasubstance subscapularis tear is degenerative. To injure subscapularis would require forced external rotation. Acute rotator cuff tears in the shoulder in motor vehicle accidents are rare. It is clear that whatever the pre-accident diagnosis was that the patient had had pre-accident shoulder symptoms on the left. The pre-existing diagnosis of bursitis which was subjected to intervention which can also change tendons."

The panel disagreed, having considered the forces in the subject accident and also the absence of any prior imaging demonstrating a left shoulder tendon tear, particularly in a relatively young woman. And no evidence of left shoulder restriction prior to the subject accident, Ms Pi having reported her left shoulder complaint had resolved.

Ms Pi has since had cervical spine surgery, which she maintains has had minimal impact on her shoulder symptoms.

Her treating surgeon, Dr Chien had confirmed this on 20 March 2024 that "She had her ACDF about a month ago. Some of her symptoms have already improved but her shoulder specific symptoms have not. This indicates that she does have shoulder pathology and not just referred pain." And on 26 June 2024 forecasts ongoing progression of the tear in the absence of surgery.

The following treatment disputes were referred by the Personal Injury Commission for assessment:

• 2(b) whether Surgery to repair subscapularis tendon and relocate biceps tendon, by Calvin Chien relates to the injury caused by the motor accident for the purposes of section 3.24 (Entitlement to statutory benefits for treatment and care), of The Act.

For the reasons given above the panel concludes the surgery relates to the injury caused by the subject motor accident.

• 2(b) whether Surgery to repair subscapularis tendon and relocate biceps tendon, by Calvin Chien, is reasonable and necessary in the circumstances for the purposes of section 3.24 (Entitlement to statutory benefits for treatment and care), of The Act.

For the reasons given above the panel concludes the surgery is reasonable and necessary in the circumstances."

1. The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[8] It is not the role of the Panel to correct error in the decision of the original Medical Assessor.
2. The Panel is not required to choose between medical opinions and is required to form its own opinions.[9] The Panel adopts the findings and opinions of Medical Assessor Gibson with which Senior Medical Assessor Dixon concurs. The Panel adds the following further reasons:
   • Notwithstanding that Dr Bentivoglio is said to have an interest in biomechanics, the Panel is not inclined to accept his opinion that, based upon his review of photographs of damage to the claimant's vehicle and that he did not identify any significant damage, he considered it unlikely there was any horizontal or lateral translation of the claimant's left shoulder, as a result of the impact sustained in the subject motor accident. Consequently, he had difficulty accepting the impact could have caused any injury to her left shoulder, whether an aggravation, or a specific injury. That opinion is not based upon any persuasive evidence and does not rise above the level of speculation.
   • The Panel accepts that it is a matter of common sense that the nature and speed of the impact may affect the extent of the injuries sustained. See per Principal Member John Harris in Allianz v Sarofim[10]. The insurer did not provide any expert biomechanical engineering evidence as to the nature of the collision, and the injuries likely to have been caused, as a result, especially in relation to the left shoulder. Such evidence increasingly is presented to the Commission by the insurers.
   • To the extent that Dr Korber bases his causation opinion on the evidence of Dr Bentivoglio, the Panel discounts it, for the same reasons. With the greatest respect to Dr Bentivoglio and Dr Korber, the Panel does not regard them as sufficiently expert in the matter of whether the mechanics of the subject accident were likely, or not, to have caused a frank injury such as the intrasubstance subscapularis tear, as presented in this case. That being said, the Panel notes that the issue of causation of injury ultimately is a matter for the Medical Assessors.[11]
   • Even accepting Dr Korber's opinion that the intrasubstance subscapularis tear is degenerative and pre-existed the subject accident, he does not consider whether the subject accident may have caused significant aggravation of the underlying degenerative condition which has continued.
   • The Panel notes what was said in Kearns v Allianz Australia Insurance Limited [2024] NSWPICMP 559 which apply equally to this case. That is, Ms Pi had a pre-existing condition which rendered her left shoulder vulnerable. She had an accident and has developed symptoms. These symptoms have continued. Her treating doctors have recommended surgery, and she wishes to have it. Applying the criteria of Diab (see footnote 7), the Panel is satisfied that the proposed surgery is reasonable and necessary in the circumstances. The Panel notes and adopts what was said in Todev v AAI Limited t/as GIO[12] which seemingly applies as much to physical injuries as to psychiatric injuries in the absence of finding authority to the contrary.
3. The Panel met on 4 June 2025 to consider the following:

(a) the nature of the dispute and the matters in issue;

(b) whether any additional documents were required; and

(c) whether a re-examination was necessary.

1. The Panel reconvened on 21 October 2025 to consider its findings and finalise its decision.
2. The Panel finds, as a matter of medical determination and as a matter of factual non-medical judgment, the motor accident could have caused an injury to the claimant's left shoulder in the nature of an intrasubstance subscapularis tear, and/or did cause an acceleration, aggravation or exacerbation of that underlying degenerative condition. For the reasons stated, the Panel is satisfied that, but for the motor accident, the claimant is unlikely to have required the proposed surgery.
3. The finding of the Medical Assessors are similar to those of Medical Assessor Gumley and Dr Chien. To the extent they differ with Dr Bentivoglio and Dr Korber, they respectfully disagree, for the reasons stated.
4. For the same reasons, the Panel is satisfied that the proposed surgery is likely to improve the claimant's recovery.

1. For the above reasons, the Panel confirms the certificates of Medical Assessory Gumley dated 7 February 2025.

[4] [2003] NSWCA 52.

[5] Clampett at (22) - (23), Meagher and Santow JJA agreeing.

[6] See ING Bank (Australia) Limited v O'Shea [2010] NSWCA 71 at (48); Moorebank Recyclers Pty Limited v Tanlane Pty Limited [2012] NSWCA 445 at (113).

[7] See Diab v NRMA Limited [2014] NSWWCCPD 2 at (88) (Diab).

[9] Insurance Australia Group Limited v Keen [2021] NSWCA 287 and Insurance Australia Group Limited v Marsh [2021] NSWCA 31.

[10] Allianz Australia Insurance Limited v Sarofim [2024] NSWPICMA 346

[11] Motor Accidents Authority of NSW v Mills [2010] NSWCA 82

[12] [2023] NSWSC 836 at (50) - (53)