Allianz Australia Insurance Limited, CIC Allianz Insurance Limited

MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claimant's review of Medical Assessment Certificate's (MAC) under section 7.26; whether the injuries caused by the accident were threshold injuries; whether the motor accident caused a supraspinatus tear in the left shoulder; permanent impairment dispute; referred injuries include cervical spine, thoracic spine, lumbar spine, left shoulder, left knee, and consequential injury to the right shoulder due to overuse to compensate for the left shoulder injury; re-examination by the Review Panel; Held - original MAC's revoked; injury to the left shoulder caused by the motor accident is not a threshold injury; injury to the right shoulder and the left knee not caused by the motor accident; permanent impairment assessed at 2%.

Issued under s 7.23(1) of the Motor Accident Injuries Act 2017

The issues determined by the Review Panel are as follows:

(a) whether the injuries caused by the motor accident are threshold injuries, and

(b) whether the degree of permanent impairment of the injured person as a result of the injuries caused by the motor accident is greater than 10%.

1. The Review Panel revokes the certificate of Medical Assessor Adam Rapaport dated

25 April 2023. 2. The Review Panel issues a new certificate determining:

(a) that the following injuries caused by the motor accident are threshold injuries for the purposes of the Act:

(i) cervical spine - soft tissue injury;

(ii) thoracic spine - soft tissue injury, and

(iii) lumbar spine - soft tissue injury.

(b) that the following injury caused by the motor accident is not a threshold injury for the purposes of the Act:

(i) left shoulder injury - partial thickness tear of the supraspinatus tendon

1. The Review Panel revokes the certificate of Medical Assessor Alan Home dated 8 December 2022.
2. The Review Panel issues a new certificate determining that the following injuries caused by the motor accident give rise to a degree of permanent impairment that is not greater than 10% (2%):

(a) cervical spine;

(b) thoracic spine;

(c) lumbar spine, and

(d) left shoulder.

A statement of the Review Panel's reasons for the determinations is attached to this certificate.

1. On 21 March 2018, the claimant, Mohamad Akl, was involved in a motor accident when the vehicle in which he was travelling as a front-seat passenger was hit in the rear by a vehicle insured by Allianz Australia Insurance Limited.
2. As a result of the accident, the claimant claimed that he sustained physical injuries. He also claimed that he developed psychological injury, although this aspect of his injuries is not the subject of this dispute.
3. The claimant made a claim against the insurer for his injuries under the Motor Accident Injuries Act 2017 (the MAI Act), claiming initially payment of statutory benefits and eventually, common law damages.
4. The insurer accepted liability to pay the claimant statutory benefits for the first 26 weeks. Statutory benefits by way of loss of earnings and treatment and care expenses, cease after 26 weeks if the person's only injuries resulting from the motor accident were threshold injuries.[1] An injured person cannot recover damages under the MAI Act if the only injuries resulting from the motor accident were threshold injuries.[2]
5. Two disputes have since arisen between the parties which are now the subject of this review.

1. The insurer made a decision[3] (which was confirmed on internal review) that the claimant's physical injuries caused by the accident, were threshold injuries for the purposes of

s 1.6 of the MAI Act.[4] 2. To resolve the dispute, the claimant made an application for a medical assessment of the matter by the Personal Injury Commission (Commission) pursuant to Division 7.5 of the MAI Act. 3. According to Schedule 2, cl 2 of the MAI Act, the issue of whether an injury caused by the motor accident is a threshold injury for the purposes of s 1.6 of the MAI Act, is declared to be a medical assessment matter. In accordance with s 7.20 of the MAI Act, the Commission referred the matter to Medical Assessor Alan Home for assessment. 4. On 12 December 2018, Medical Assessor Home issued a medical certificate finding that the claimant's left shoulder injury, caused by the accident, was not a minor (threshold) injury for the purposes of the Act. He found that the claimant's injuries to the cervical spine, the lumbar spine and the thoracic spine, caused by the accident, were minor (threshold) injuries. 5. On 3 November 2021, the insurer lodged an application for further medical assessment of the claimant's physical injuries pursuant to s 7.24 of the MAI Act regarding the threshold injury issue. The application was accepted by the Commission and on this occasion, the matter was referred to Medical Assessor Adam Rapaport for assessment. 6. On 25 April 2023, Medical Assessor Rapaport issued a medical certificate finding that the claimant's injuries to the cervical spine, the lumbar spine, the thoracic spine and the left shoulder, caused by the accident, were all soft tissue injuries and were therefore threshold injuries for the purposes of the Act. In making his determination, Medical Assessor Rapaport found that the partial thickness tear of the supraspinatus tendon of the left shoulder was not caused by the accident and indicated that a decision as to whether that injury was a threshold injury was not required.

1. Meanwhile, following the determination of Medical Assessor Home on 12 December 2018, the claimant had pursued a claim with the insurer for common law damages, which included a claim for damages for non-economic loss.
2. According to s 4.11 of the MAI Act, no damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by a motor accident is greater than 10%.
3. The insurer did not concede that the threshold for permanent impairment of the claimant's physical injuries caused by the accident, was crossed.
4. To resolve the dispute, the claimant made an application for a medical assessment of the matter by the Commission pursuant to Division 7.5 of the MAI Act.
5. The Commission referred this matter to Medical Assessor Alan Home for assessment.
6. On 8 December 2022, Medical Assessor Home issued a certificate finding that the claimant's injuries to the cervical spine, thoracic spine, lumbar spine and left shoulder, gave rise to a permanent impairment of 12%.

1. On 22 December 2022, pursuant to s 7.26 of the MAI Act, the insurer made an application to the President of the Commission to refer the medical assessment of Medical Assessor Home (the permanent impairment dispute) to a review panel for review. The review application was accepted by the Commission as being made within the time prescribed by s 7.26(10) of the MAI Act.
2. On 24 May 2023, pursuant to s 7.26 of the MAI Act, the claimant made an application to the President of the Commission to refer the medical assessment of Medical Assessor Rapaport (the threshold injury dispute) to a review panel for review. The review application was also accepted by the Commission as being made within the time prescribed by s 7.26(10) of the MAI Act.
3. The President referred both applications to a review panel for review, being satisfied that there was reasonable cause to suspect that the medical assessments were incorrect in a material respect, having regard to the particulars set out in the applications.[5]

1. According to s 7.26(5A) of the MAI Act, the Review Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission. On this occasion, the Review Panel is constituted by Medical Assessor Assem, Medical Assessor Gibson and Member Castagnet (the Panel).
2. Part 5 of the 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.[6]
3. 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. The panel may determine the proceedings solely based on the written application.[7]
4. The review is not limited to only that aspect of the assessment that is alleged to be incorrect and is by way of a new assessment of all the matters with which the medical assessment is concerned.[8]

1. A threshold injury is defined in s 1.6 of the MAI Act and includes a "soft tissue injury". Section 1.6(2) of the Act defines a soft tissue injury to mean:

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

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 psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines threshold injury to include "an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)" and an acute stress disorder and an adjustment disorder.
2. Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accidents Guidelines (the Guidelines).[9]

1. Part 5 of the Guidelines are made pursuant to s 10.2 of the MAI Act.
2. 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. They relevantly provide as follows:

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

5.4 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.

5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.

5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:

(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions

(b) a review of all relevant records available at the assessment

(c) a comprehensive description of the injured person's current symptoms

(d) a careful and thorough physical and/or psychological examination

(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.[10]
2. In regard to the assessment of the degree of permanent impairment, the Guidelines adopt the fourth edition of the American Medical Association's Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.[11]

1. The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAI Act in determining issues of causation, particularly ss 5D and 5E of the CL Act.[12]
2. In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13, Campbell J made the following observations at [65]:

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

1. Clauses 6.5 to 6.7 of the Guidelines also address the issues of causation of injury and whether the degree of permanent impairment is caused by injury. They provide as follows:

"6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or the personal Injury Commission) in considering such issues.

6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:

'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:

1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.

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

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

1. These provisions are equally of relevance to the issue of causation of threshold injury as observed by Wright J in Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372 at [35].
2. The Panel is required to determine the issues on the balance of probabilities. The resolution of causation does not require scientific certainty: Briggs v IAG Ltd (No 2).[13]

1. The following injuries were referred to Medical Assessor Rapaport for assessment:

(a) cervical spine - soft tissue injury;

(b) thoracic spine - soft tissue injury;

(c) lumbar spine - soft tissue injury, and

(d) left shoulder - partial thickness tear of the supraspinatus tendon.

1. As previously indicated, the Medical Assessor issued a medical assessment certificate on

25 April 2023, finding that the claimant's injuries to the cervical spine, the lumbar spine and the thoracic spine and the left shoulder, caused by the accident, were all soft tissue injuries and therefore, threshold injuries for the purposes of the Act. He found that the supraspinatus tendon tear in the left shoulder was not caused by the accident. 2. In making his findings, the Medical Assessor expressed the following opinions. First, the collision between the two vehicles caused little structural damage to either vehicle. Second, the energy dissipation to the occupants was minimal and third, there were no anatomical structural changes evident on radiology or ultrasound performed on the claimant, five days after the accident. Third, noting the evidence of symptomatic left shoulder pain being present some three weeks prior to the accident, the Medical Assessor was not satisfied that that the partial thickness tear of the supraspinatus tendon of the left shoulder was caused by the accident. He concluded that the soft tissue musculoligamentous injuries were the most probable cause for the symptoms experienced shortly after the accident.

1. The following injuries were referred to Medical Assessor Home for assessment.

(a) cervical spine - soft tissue injury;

(b) thoracic spine - soft tissue injury;

(c) lumbar spine - soft tissue injury;

(d) left and right shoulder - partial thickness tear of the supraspinatus tendon, and

(e) left knee - injury.

1. The Medical Assessor was satisfied that based on the mechanism of the accident described in the report of biomedical/mechanical engineer, Michael Griffiths and early documentation of complaints of neck, left shoulder, thoracic and lower back pain in the claimant's application for personal injury benefits dated 13 April 2018 and the certificate of fitness dated

13 April 2018, the claimant sustained the following injuries, caused by the motor accident:

(a) soft tissue injury to the cervical spine superimposed upon underlying degenerative change;

(b) soft tissue injury to the lumbar spine superimposed upon underlying degenerative change;

(c) soft tissue injury to the thoracic spine, and

(d) left shoulder soft tissue injury and partial tear of the supraspinatus tendon.

1. The Medical Assessor noted that there was a medical attendance prior to the accident on

1 March 2018, regarding left shoulder pain and restricted motion. The claimant reported to the Medical Assessor that he recovered from this complaint within a day or two and did not undergo an ultrasound examination of the left shoulder that was requested by his doctor at that time. The Medical Assessor noted that the claimant did not believe that at that time, he suffered an injury to the left shoulder itself, but rather a muscle strain of the left upper arm which subsequently resolved. The claimant recalled a distinction between the pre-accident and post-accident symptoms. 2. The Medical Assessor was of the opinion that it is probable that the previous clinical evidence reflects a shoulder tendon injury as it is most unlikely that a muscle strain of the arm, as self-diagnosed by the claimant, would cause marked restriction of shoulder elevation, as recorded by his treating doctor. Nevertheless, the Medical Assessor was of the opinion that there is sufficient evidence to support an aggravation of the shoulder complaint by the accident.

1. The claimant filed a paginated and indexed bundle of documents comprising 612 pages (the claimant's bundle) and the insurer filed a paginated and indexed bundle of documents comprising 386 pages (the insurer's bundle).
2. The Panel has reviewed and considered all the materials filed by the parties.

1. The insurer submitted that there was inconsistency in the claimant's self-reporting of his left shoulder condition to Medical Assessor Home. At the assessment of the threshold injury dispute, the claimant reported that he did not have any prior shoulder problems. At the assessment of the permanent impairment dispute, he reported that he had left shoulder pain 20 days prior to the accident but asserted that it had resolved before the accident.
2. The insurer noted that in the assessment of the permanent impairment dispute, Medical Assessor Home was of the opinion that the evidence demonstrated a pre-existing tendon injury in the left shoulder which was aggravated by the accident. On that basis, the insurer submitted that a deduction should have been made for any pre-existing impairment based on the range of motion recorded 20 days prior to the accident.
3. The insurer noted that Medical Assessor Home found that the claimant did not suffer a consequent injury to the right shoulder and that the right shoulder symptoms reflected a constitutional complaint. On examination, the Medical Assessor found that the right shoulder had less range of movement than the left shoulder but there was no reduction in whole person impairment (WPI) as a result of the constitutional complaint against the uninjured shoulder. The insurer therefore submitted that the Medical Assessor failed to assess and deduct the uninjured right shoulder from the left shoulder WPI.
4. The insurer submitted that if Medical Assessor Home concluded on the evidence available to him at the assessment of the permanent impairment dispute that the supraspinatus tendon tear was probably a pre-existing condition, he should have conceded that his finding (in his previous certificate issued in relation to the threshold injury dispute) that the tear was caused by the accident, was incorrect.
5. The insurer submitted that Part 6 of the Guidelines referred to by the claimant is only applicable to the assessment of the degree of permanent impairment and therefore, when assessing the threshold injury dispute, any reference to cls 6.6 and 6.31 in the Guidelines should be ignored.

1. The claimant submitted that Medical Assessor Home did not accept that the claimant's left shoulder was uninjured prior to the accident but he believed that there was a tendon injury which was aggravated in the accident.
2. Medical Assessor Home did not accept that the claimant had injured his right shoulder because of the accident. He believed that the onset of symptoms was a constitutional complaint. He clearly considered the possibility of a deduction due to pre-existing condition. He referred to cls 6.31 to 6.33 of the Guidelines. He accepted that there was a reference to restricted left shoulder in the period before the accident, but he gave explicit reasons why there should be no deduction.
3. The insurer contended that Medical Assessor Home failed to deduct the pre-existing impairment of the uninjured right shoulder. However, the right shoulder did not have a pre-existing condition. The condition developed post- accident as certified by the Medical Assessor. Clause 6.51 of the Guidelines is a matter for the Medical Assessor, and it is not mandatory. It should only be applied if there is a reasonable expectation that the injured joint would have had similar findings to the uninjured joint before the injury. The insurer brings no evidence of any such "reasonable expectation". The insurer does not explain how such a "reasonable expectation" could arise.
4. On the issue of the threshold dispute and the left shoulder injury, the claimant submitted that when he reported shoulder pain to his GP in 2017, the ultrasound performed at that time showed no structural damage. It did not show a supraspinatus tear or any other tear. Thus, there is no objective evidence that the tear, evident post-accident, was present in 2017.
5. The claimant submitted that when he attended upon his GP approximately three weeks before the accident with left shoulder pain, there were no investigations performed. That, of itself, suggests that the pain was less significant. Further, the lack of investigations means that there is no objective evidence, once again, of the pathology revealed post-accident.
6. The claimant submitted that pre-accident shoulder pain, even if related to the rotator cuff, may relate to a number of tendons. The clinical note of 2018 is insufficient to prove, objectively, a pre-existing tendon injury to the specific tendon shown to be torn post-accident.

1. The evidence before the Panel may conveniently be summarised as follows.

1. According to the clinical records of orthopaedic surgeon, Dr Tamer Kahil, the claimant attended for treatment on 25 May 2006 for a left ankle injury but also complained that he may also have injured his left knee. On examination, the left knee was found to be stable with no effusion but there was patella mal-tracking.
2. According to the clinical records of the GP medical practice, William Street Medical Centre, the claimant attended for treatment of lower back, neck and knee conditions as follows:

(a) 8 May 2007 - complaint of ankle and knee pain;

(b) 6 June 2007 - complaint of "lower back pain, longstanding, worse last few weeks". On examination, "moderate tenderness lower back, restricted rotation, no neuro abnormalities.";

(c) 29 February 2008 and 31 March 2008 - complaints of back pain;

(d) 14 April 2008 - complaint of "exacerbation of pain left ankle, lower back, left knee";

(e) 14 July 2008, 21 October 2008 and 2 February 2009 - complaints of back pain;

(f) 11 April 2011 - complaint of "neck and back pain worse last few weeks";

(g) 31 January 2012, 4 January 2013 and 13 August 2013 - complaints of back pain;

(h) 12 December 2013- complaint of back pain; referred for physiotherapy, and

(i) 30 September 2013 - complaint of "lower back pain few weeks".

1. According to the clinical records of the GP medical practice, NAS Advanced Medical Centre, a CT of the lumbar spine was requested on 23 July 2007 and performed on 24 July 2007 on a clinical history of low back pain. The conclusion was that it showed mild degenerative changes at the facet joints at L4/5 and L5/S1 levels with no other abnormality demonstrated. At a consultation on 24 July 2007, the claimant was referred to orthopaedic surgeon, Dr Vijay Maniam for further management.
2. The clinical records of Dr Maniam showed that the claimant attended for treatment on

24 July 2007, complaining of lumbar spine pain for the past three months. There were no radiation or neurological symptoms. There were further visits on 5 August 2008 and

10 September 2008 when the claimant reported lower back pain and left knee pain. 3. MRI studies of the lumbar spine and the left knee were requested by Dr Maniam and performed on 29 August 2008. In regard to the lumbar spine, the conclusion was there was no significant spondylitic change seen, no evidence of significant annular fissures /tears of the disc or disc bulges with no suggestion of impingement of the existing lumbar nerve roots or of the S1 nerve roots within the central canal. In regard to the left knee, there was no evidence of meniscal tear and there was a Grade 1 chondromalacia. 4. An MRI of the cervical and thoracic spine was requested by Dr Maniam on 26 February 2010 on a clinical history of neck pain radiating to the shoulder blades. The conclusion was that there was early multilevel degenerative change and dorsal disc bulging involving the cervical spine with no definite cord or nerve root impingement. There was no vertebral or disc generation demonstrated in the thoracic spine. 5. According to the clinical records of the general medical practice, Pitt Street Merrylands Medical and Dental Centre, on 14 February 2017, the claimant attended for blood tests on a background of chest pain for three years when he also complained about left shoulder pain. An ultrasound was requested by GP, Dr Theodora Salama and performed the same day. On 16 February 2017, the claimant presented for the results which showed no discrete rotator tendon tear but subacromial bursitis was noted. 6. According to the clinical records of the GP medical practice, Merrylands Family Practice, the claimant attended a consultation on 1 March 2018 and the following entry was recorded by Dr Sivagowry Sivakumar:

had lefty [sic] shoulder injury [sic] with work related he is an electrician -

did not work 1 year and started today, got pain after pulling the wires at work,

1. An ultrasound of the left shoulder was requested.

The claimant's statement regarding the accident

1. In his application for personal injury benefits dated 13 April 2018, the claimant described his injuries in the following terms:

"neck - back - left shoulder worst[sic] - mid and low back - ribs - psychological, psychiatric"

1. Following the accident, the claimant was treated by general practitioner (GP) Dr Hany Hanna of the Guildford Road Medical Centre.
2. According to the clinical records of the medical practice, the claimant consulted Dr Hanna on the day after the accident, 26 March 2018, 26 March 2018, 9 April 2018, 27 April 2018,

15 May 2018, 29 May 2018, 20 June 2018, 9 July 2018, 2 August 2018, 23 August 2018,

13 September 2018, 29 October 2018, 10 December 2018, 19 December 2018 and

7 January 2019. At those consultations, the claimant consistently reported back, neck and left shoulder pain, headache and pain in the left ribs. 3. According to the certificates of fitness issued by Dr Hanna on 9 April 2018, 28 June 2018,

9 July 2018, 30 July 2018, 23 August 2018, 25 September 2018, 29 October 2018 and

7 January 2019, the diagnosis for the injuries caused by the accident were recorded as:

1. At a consultation with Dr Hanna on 24 January 2019, the claimant complained of back pain, neck pain, left shoulder pain as well as right shoulder pain. An X-ray and ultrasound of right shoulder was requested. A referral letter was issued for the claimant to see orthopaedic surgeon, Dr Medhat Guirgis.
2. At a consultation with Dr Hanna on 8 February 2019, the claimant complained of back, neck and left shoulder pain.
3. At a consultation with Dr Hanna on 25 February 2019, the claimant complained of back pain, neck pain, sciatica, left shoulder pain, rib pain, headache and left knee pain. An X-ray of the left knee was requested.
4. At the consultations with Dr Hanna on 27 February 2019, 1 March 2019, 24 April 2019,

29 April 2019, 8 May 2019, 24 June 2019, 23 July 2019, 29 July 2019, 10 September 2019, 16 October 2019 and 4 December 2019, the claimant complained of back pain, neck pain, sciatica and left shoulder pain. 5. At a consultation with Dr Hanna on 22 January 2020, the claimant complained of back pain, neck pain, sciatica, left shoulder pain and bilateral knee pain. 6. At the consultations with Dr Hanna on 18 April 2020, 15 May 2020, 6 July 2020,

24 August 2020, 31 August 2020, 17 November 2020, the claimant complained of ongoing back pain, neck pain, sciatica and left shoulder pain. 7. At the consultations with Dr Hanna on 6 January 2021, 16 January 2021, 17 February 2021, 19 May 2021, 13 September 2021 and 13 December 2021, the claimant complained of ongoing back pain, neck pain, sciatica and bilateral shoulder pain. 8. In the certificates of fitness issued by Dr Hanna on 27 February 2019, 24 April 2019,

23 July 2019, 29 November 2019, 4 December 2019,12 December 2019 and 18 April 2020, the diagnosis of the injuries caused by the accident were recorded as: "Back, neck, left shoulder, left rib and right shoulder".

1. In February 2019, the claimant was referred to orthopaedic surgeon, Dr Medhat Guirgis for further treatment. In a report to Dr Hanna dated 19 February 2019, Dr Guirgis expressed the opinion that the accident caused the following injuries:

(a) a musculo-ligamentous sprain/strain to the cervical spine which had triggered and aggravated the effects of underlying asymptomatic degenerative changes at the C4-5 level;

(b) a musculo-ligamentous sprain/strain to the lumbar spine which had triggered and aggravated the effects of underlying asymptomatic degenerative changes at the L3-4 and L4-5 level;

(c) post-traumatic symptoms of subacromial impingement in the left shoulder joint caused by contusion of the articular surfaces, spraining of the supporting capsular and ligamentous structures, and squashing of the subacromial bursa. There was MRI evidence of a partial thickness tear in the supraspinatus tendon associated with supraspinatus tendinopathy and subacromial subdeltoid bursitis, and

(d) consequential problems in the right shoulder due to favouring the right arm to avoid pain on stress-using the injured left arm.

1. The claimant was assessed by orthopaedic surgeon, Dr Gregor Bruce on 25 June 2019 at the request of the insurer.
2. In a report of the same date, Dr Bruce noted that the claimant complained of pain and restricted movement in his neck, pain in the left shoulder, pain and reduced movement in the right shoulder which developed about 12 months after the accident and pain in the lumbar spine with intermittent referred pain down the lateral aspect of both thighs. It was recorded that the claimant also reported discomfort over the anterior aspect of the left knee, associated with clicking and catching. These symptoms started about one to two months before the assessment.
3. Dr Bruce was of the opinion that there was early cervical spondylosis that became temporarily symptomatic after the accident, and the effect of the accident had now ceased.
4. In regard to the lumbar spine, Dr Bruce believed that there was early degenerative lumbar spondylosis that had temporarily increased symptoms after the accident, and that the accident did not increase the underlying pathology but simply caused a temporary increase in symptoms.
5. In regard to both shoulders, Dr Bruce believed that the claimant has naturally occurring bilateral degenerative tendinopathy with associated impingement which may have become temporarily symptomatic after the accident, but the accident had not contributed to the underlying pathology or current ongoing symptoms.
6. Dr Bruce believed that there was naturally occurring patellofemoral dysfunction in the left knee which was unrelated to the accident.
7. Dr Bruce recorded that the claimant did not complain of thoracic pain at the time of his assessment.

1. An X-ray of the left ribs dated 26 March 2018 showed no definite left rib abnormality.
2. A CT scan of the cervical spine dated 26 March 2018 concluded that there was no acute bony injury and mild disc degeneration without large focal disc protrusion. There was no evidence of mechanical neural impingement and mild facet joint degeneration at the left C4/5 and C5/6 levels.
3. A CT scan of the lumbar spine dated 26 March 2018, showed mild disc degeneration at the lower three lumbar levels, with right far lateral disc protrusions with osteophytic lipping at L3/4 and L4/. There was no definite mechanical neural impingement, however, potential irritation of the right L3 nerve root or bilateral L5 nerve roots existed. There was mild facet joint arthritis bilaterally at L3/4 and L4/5.
4. A left shoulder X-ray and ultrasound dated 26 March 2018, showed normal alignment, no bony lesion or fracture and no evidence of osteoarthritis. Sonographic assessment showed mild rotator cuff tendinosis without tear and subacromial/subdeltoid bursitis with features of impingement.
5. An MRI of the cervical spine dated 25 June 2018 showed minimal uncovertebral and facet joint degenerative change on the right at C4/5, with no nerve root impingement.
6. An MRI of the left shoulder dated 25 June 2018 showed subacromial/ subdeltoid bursitis, mild acromioclavicular joint osteoarthritis, moderate supraspinatus tendinopathy with a partial thickness intrasubstance tear measuring up to 0.8cm and a septated 0.8cm paralabral cyst seen posteriorly which could represent an underlying labral tear. If this is suspected, an MRI arthrogram could be undertaken.
7. An MRI of the lumbar spine dated 25 June 2018, showed early disc dehydration at L3/4 and L4/5 not associated with significant bulge or narrowing of the neural exit canals.
8. An ultrasound of the right shoulder dated 25 February 2019 showed no evidence of cuff tear or tendinosis. There was mild bursitis.
9. An MRI of the right shoulder dated 2 May 2019, showed moderate osteoarthropathy of the AC joint, subacromial/subdeltoid bursitis, supraspinatus tendinopathy associated with the bursal surface partial thickness tear, mild tendinopathy of the infraspinatus and subscapularis.
10. An MRI of the lumbar spine dated 2 May 2019 showed L3/4 disc dehydration, with a small right sided annular tear at L3/4, no significant disc bulge or narrowing of the exit neural canals. At L4/5, there was disc dehydration associated with minimal circumferential disc bulge slightly indenting the anterior aspect of the thecal sac. At L5/S1, there was no significant disc bulge or narrowing of the exit neural canals.
11. An MRI of the thoracic spine dated 2 May 2019 was normal.
12. A CT scan of the lumbar spine dated 6 January 2021 showed multi-level degenerative changes maximal at L4/5 with potential irritation of the right L5 nerve root.

1. There was before the Panel, two reports from biomedical and mechanical engineer, Michael Griffiths regarding the mechanism of the accident.
2. The first report titled "Preliminary Report" is dated 27 November 2019. The second report is dated 31 August 2021. In that report, Mr Griffiths states that this report supersedes the preliminary report and is intended to "stand on its own without any need for cross-referencing to the preliminary report." The panel has therefore only considered Mr Griffiths' report of

31 August 2021. 3. Having considered the evidence before him (which included treatment medical records, documents relating to the damage repairs to the subject vehicles and photographs of the damaged vehicles), Mr Griffiths expressed the following opinions:

(a) the description of the extent of damage to the insured vehicle by the insured driver, the photograph of the damage to the insured vehicle and the insured driver's statement he formed the view that this was a minimal energy exchange incident;

(b) the physical evidence of the damage pattern to the claimant's vehicle is that it did not occur from contact with the insured vehicle;

(c) the extent of vehicle components damaged to the claimant's vehicle to the extent that they required repair or replacement, is not consistent with both the location and the magnitude of the damage seen to the front of the insured vehicle;

(d) because the direction of motion of the claimant's vehicle would have been forwards, not rearwards, there is no possibility that the claimant's body could have lurched forward or that his seatbelt could have dug into him, and

(e) the extent of the objective assessments of the claimant's pre-accident pathology is sound evidence that the post-accident pathology was the expected normal continuation of the claimant's degenerative physiology, particularly when associated with the co-morbidity of the claimant's morbid obesity.

1. The Panel accepts that a properly based analysis of the nature of the collision may be relevant evidence that the Panel could take into account, although it would not be determinative of the extent of personal injury suffered by the claimant.[14]
2. In this case, however, the Panel does not accept Mr Griffith's opinions.
3. Photographs of the vehicle damage reveal minor deformation, with the insured van's front contacting the rear tow bar area of the Toyota Prado. If the force of the collision was with the tow bar, the damage to the insured's vehicle would likely be limited to the point of impact.
4. The damage report in respect to the Prado noted, inter alia, the complete replacement of rear tow bar. While the Panel professes no expertise and speak only from a knowledge of basic physics, it is likely that a collision force applied directly to and through a tow bar of a vehicle may result in less damage to the vehicle than where the same force is progressively absorbed by other less rigid areas, but some greater force would be transmitted to an occupant of the vehicle.

1. The claimant was re-examined by Medical Assessor Assem on behalf of the Panel on

29 April 2025 at the medical suites of the Commission. The claimant attended the assessment unaccompanied. 2. The examination report of Medical Assessor Assem now follows.

Pre-accident medical history and relevant personal details

1. The claimant is a 41-year-old right-hand dominant man who lives with his wife and seven children in Guildford. He qualified as a licensed electrician in 2001. Over time, he obtained multiple certifications, including in electrical metering, solar installation, data cabling, and NBN installation. In 2018, he finalised his licensing requirements for NBN installations.
2. Leading up to the motor accident, the claimant had taken approximately one year away from regular work. He stated that this period was dedicated to full-time study and training to obtain his NBN qualifications. He emphasised during the interview that he was not off work due to injury, but rather by choice, seeking to improve his employment prospects. The claimant specifically denied having a significant incapacity that prevented him from physical work during this period, asserting that he successfully completed physically demanding components of the NBN training, such as pole climbing.
3. It was brought to his attention that in early 2017, he consulted with Dr. Salama complaining of left shoulder discomfort. He described this event as relatively minor and that his symptoms settled within several days. According to the claimant, the episode of discomfort was not the result of injury, and no work incapacity was recorded.
4. On 1 March 2018, approximately three weeks before the motor accident, the claimant presented to the Merrylands Family Practice where he was examined by GP, Dr Sivagowry Sivakumar for left shoulder pain after pulling a cable. Clinical records from this consultation documented reduced active abduction to approximately 60 degrees. It is noted that X-rays and ultrasound were ordered. However, the claimant stated that there were no imaging results in his medical records. He explained that the shoulder symptoms resolved rapidly with conservative management, including rest and the application of an elastic supportive bandage. He clarified that the pulling injury occurred at home while handling cables recreationally, not during formal employment.
5. The claimant denied experiencing significant back injuries before the subject accident. However, he was documented to have lower back pain radiating to the legs in 2007, and further complaints in 2016 and 2017 prompted CT scans of the lumbar spine. Imaging revealed multilevel degenerative changes, endplate spurring, and early osteoarthritic features. When these findings were brought to the claimant's attention during the examination, he acknowledged previous back complaints but distinguished these earlier complaints as work-related muscular strains typical of an electrician's duties, rather than significant spinal pathology. He maintained that his pre-accident back symptoms were manageable and did not restrict his work capacity at the time.

1. On 21 March 2018, the claimant was a front-seat passenger in a Toyota Prado, driven by his brother. The vehicle was stationary at a traffic light when it was struck from behind by another vehicle, described as a large van. At the time of the collision, he was twisted to his right while speaking with his brother.
2. The claimant reported that the offending driver was distracted at the time, eating while driving, and failed to apply the brakes prior to impact. He described the collision as forceful, stating initially that the vehicle was pushed approximately four metres forward, later refining this estimate to a couple of metres.
3. Immediately following the collision, he experienced acute pain in the middle of his back and neck. He stated that upon exiting the vehicle, when placing his feet on the ground, he felt a sharp exacerbation of mid-back pain. He did not report any loss of consciousness, lacerations, bruising, or direct impact to his head or body against any interior part of the vehicle. He denied striking the dashboard, steering wheel, or door.
4. The police and ambulance did not attend the scene. His brother drove the vehicle home shortly afterwards, as they were reportedly only minutes away from their residence. The claimant said that his brother did not sustain any physical injuries.
5. When queried about the severity of the accident, the claimant disagreed with the insurer's classification of the collision as minor. He expressed frustration at the reliance on visual damage assessments to determine injury severity, asserting that the absence of visible extensive damage did not accurately capture the forces involved.
6. He asserted that the collision caused injuries to his cervical spine, thoracic spine, lumbar spine and left shoulder, and that these injuries persisted significantly for years following the event. He related periods where he was unable to ambulate without assistance and reported requiring a walking stick during the worst episodes.

History of symptoms and treatment following the accident

1. On day of the accident, the claimant attended the Guilford Road Medical Centre reporting pain in the left shoulder, cervical spine, thoracic spine, and lumbar spine. An ultrasound and X-ray performed on 26 March 2018 revealed mild rotator cuff tendinosis and subacromial/subdeltoid bursitis. No full-thickness tear was identified at that time, and there were no fractures or dislocations observed.
2. Given the persistence of his symptoms, an MRI scan was subsequently arranged and performed on 25 June 2018. The MRI demonstrated moderate supraspinatus tendinosis, a partial-thickness supraspinatus tendon tear approximately 0.8cm in size, subacromial/subdeltoid bursitis, mild acromioclavicular joint arthritis, and a posterior paralabral cyst, consistent with a possible labral tear. These findings were noted to be indicative of chronic degenerative changes rather than acute traumatic pathology, although the correlation with his worsening clinical symptoms remained an area of dispute.
3. The claimant received physiotherapy treatment with minimal improvement. In addition, he received treatment for an adjustment disorder, anxiety, and depression, reportedly linked to his chronic pain. He was referred to orthopaedic surgeon, Dr Guirgis, who advised him that he will probably develop similar symptoms in his right shoulder due to compensatory overuse.
4. Medical Assessor Home issued a medical assessment certificate on 12 December 2018 where he noted a good range of motion of the left shoulder with mild positive impingement signs and nearly a full range of right shoulder motion. Medical Assessor Rapaport issued a medical assessment certificate on 25 April 2023 where he observed conscious restriction of shoulder movements during formal testing, with near-normal functional use observed casually.

1. The claimant reports severe constant discomfort in his left shoulder that he rated as 7-8/10, escalating to 10/10 with minimal exertion, such as lifting or household activities. He explained that even simple activities, such as lifting a blanket, could exacerbate his symptoms.
2. There is now constant pain in the right shoulder that is less intense. He rated baseline right shoulder pain at approximately 6/10, worsening with activity. He attributed right-sided symptoms to compensatory overuse.
3. His neck symptoms have improved slightly. His symptoms are worse at night escalating to 8/10 on the pain scale. The claimant localised his pain primarily to the mid-cervical region and described episodes of bilateral upper limb numbness, involving the entire distribution of both hands.
4. He described a deep, aching pain across the thoracic spine, often radiating circumferentially. He reported feeling as if there was "gel coming out" from between his vertebrae. In addition, he reported severe and disabling lower back discomfort associated with episodes of swelling over the sacroiliac joints, a marked inability to bend, and significant pain triggered by even minimal effort. He explained that any lifting or bending could precipitate severe back pain lasting several days.
5. He has remained off work until the present time. He manages his symptoms with Lyrica and Panadeine.

1. The claimant appeared well and in no obvious physical distress. He ambulated with a normal gait. He remained comfortable throughout the interview. His height was reported to be

192cm and his weight was approximately 154kg. At the commencement of the examination, he was advised not to perform any manoeuvres beyond his tolerance that might cause harm or exacerbate symptoms.

1. Posture was normal. There was tenderness over the upper and mid-cervical vertebrae. No muscle spasm was observed. Cervical movements were symmetrically restricted to approximately 3/4 of the normal range in flexion, extension, lateral flexion, and rotation. There was no asymmetry of movement or spinal dysmetria.
2. Neurological examination of his upper limbs was normal with normal power, tone, sensation, and reflexes Neural tension tests (e.g., Spurling's) were negative.

1. The claimant reported tenderness over the mid-thoracic vertebrae. There was no associated muscle guarding or spasm. There was no asymmetry of movement or spinal dysmetria noted. There was no sensory loss in the intercostal or abdominal regions.
2. There was tenderness over the lower lumbar vertebrae, with associated muscle guarding. Lumbar movements were restricted to approximately 1/2 of normal in lateral flexion and rotation, and to approximately 1/3 in flexion and extension. There was no asymmetry of motion or spinal dysmetria.
3. The claimant was able to climb onto the examination couch without assistance. He was unable to perform active straight leg raising due to reported groin pain. He required assistance to dismount the examination table. Knee and ankle reflexes were brisk and symmetrical. Lower limb power, tone, and sensation were normal. Neural tension signs were negative. There was no significant difference in calf circumference.

1. There was reported tenderness over the lateral aspect of the left shoulder and mild tenderness over the right shoulder. No crepitus or instability was detected. Active range of motion was assessed repeatedly and demonstrated variability.
2. When informed that Medical Assessor Home had previously documented a greater range of shoulder motion, and that Medical Assessor Rapaport had recorded nearly full range of motion, the claimant explained that his symptoms vary from day to day and worsen following physical exertion. The following are the shoulder range of motion measurements recorded during repeated assessment:

1. The claimant exhibited pain behaviours during the assessment, including facial grimacing and vocalisation. Several non-organic signs were observed, with positive Waddell's indicators such as reported pain during simulated trunk rotation and gentle axial compression (modified by applying pressure to the shoulders).
2. When discrepancies in shoulder range of motion were discussed, specifically that Medical Assessor Home had recorded greater movement and Medical Assessor Rapaport had documented near-full range, the claimant attributed the differences to variability in his condition. He explained that his symptoms fluctuate and often worsen significantly after physical activity, stating, "sometimes I can't move... if I try to cut the grass... 3-4 days, I can't move. I cry sometimes." He reported that while he can sometimes lift his arm, he avoids pushing through pain, fearing further aggravation. He denied any exaggeration and maintained that his condition has deteriorated over time.

1. The motor accident itself was a rear-end collision, involving two substantial vehicles. The vehicle in which the claimant was a passenger was stationary at the time of collision and was pushed forward by the impact. The Panel finds that the accident involved significant force.
2. The Panel accepts the claimant's evidence that the vehicle in which he was a passenger was stationary at the time of the accident, and that it was pushed forward a couple of metres by the impact of the collision.
3. There was early documentation of complaints of neck, left shoulder, thoracic, lower back and left ribs pain in the GP records of Guildford Road Medical Centre on 22 March 2018,

26 March 2018 and 9 April 2018, in the claimant's application for personal injury benefits dated 13 April 2018 and the certificate of fitness dated 13 April 2018. The Panel accepts the claimant's evidence that he was twisted to the right at the time of impact and was flung forward as a result of the impact, injuring his spine and left shoulder. 4. The Panel accepts that in the accident, the claimant sustained injuries to the whole of his spine, the left ribs and the left shoulder. The Panel also accepts that the claimant's underlying changes may have made him more vulnerable to injury.

1. Prior to the motor accident, the claimant had a documented history of intermittent left shoulder symptoms. In February 2017, an ultrasound showed mild supraspinatus tendon heterogeneity and subacromial bursitis, consistent with early degenerative tendinopathy, but no tear was identified, and symptoms reportedly resolved without long-term impairment.
2. In early March 2018, just weeks before the accident, the claimant experienced another episode of left shoulder pain after a pulling incident at home. The GP records of Dr Salama recorded reduced abduction to 60 degrees, and an ultrasound was recommended but not performed. According to the claimant, the symptoms resolved within a few days.
3. After the accident, an ultrasound showed tendinosis and bursitis but no tear, similar to the ultrasound results in 2017. An MRI scan in June 2018 revealed a partial-thickness supraspinatus tendon tear alongside degenerative change. This discrepancy is not unexpected, as MRI is more sensitive than ultrasound in detecting small or partial thickness tears, particularly in the presence of chronic degeneration.
4. On the balance of probabilities, the Panel accepts that the motor accident exacerbated pre-existing, largely asymptomatic degenerative pathology in the left shoulder and caused or materially aggravated the underlying tendon tear. This is a non-threshold injury.

1. At the time of the accident, the claimant was seated twisted to his right and reported immediate neck pain. The Medical Assessors of the Panel accept that it is possible that the mechanism of injury, a rear-end collision, could have and did cause a soft tissue strain to the cervical spine.
2. The Panel is satisfied that the accident caused a soft tissue injury to the cervical spine. This is a threshold injury.

1. For the same reasons stated in above paragraph, the Panel accepts that the accident caused a soft tissue injury to the thoracic spine. This is a threshold injury.

1. The claimant had a documented history of back complaints dating back to at least 2007, including multilevel degenerative changes and endplate spurring on imaging. At the time of the motor accident, he reported immediate lower back pain. Based on the mechanism of the accident, the Panel accepts on the balance of probabilities that the motor accident caused a soft tissue strain to the lumbar spine.

1. The claimant reports episodic knee discomfort. There is no objective evidence linking this to the subject accident, nor is there a plausible biomechanical explanation supporting an acute or aggravating knee injury in the context of the incident described.
2. On the balance of probabilities, the Panel finds that the accident did not cause or materially aggravate any structural pathology in the left knee.

1. The claimant attributes his right shoulder symptoms to compensatory overuse following left shoulder pain.
2. Although he does have evidence of a partial thickness tear on a background of degenerative pathology, he has remained off work since the motor accident and has denied engaging in physically strenuous activities. As such, there is no medically plausible basis for attributing right shoulder symptoms to compensatory overuse.
3. The Panel is satisfied that there is no injury to the right shoulder caused by the accident.

1. Permanent impairment is defined in AMA 4 as follows: "Permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment. A permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment."[15]
2. The claimant's condition is unlikely to change substantially in the next 12 months with or without medical treatment now more than 7 years after the accident. His symptoms have been stable for 12 months at least. Impairment, if any, is therefore considered permanent.

1. The claimant would be expected to have a minor restriction in shoulder motion, similar to what was observed by Medical Assessor Home and Medical Assessor Rappaport. Due to the variability in his shoulder motion over time, range of motion was not considered a reliable or valid measure of impairment.[16] Therefore, assessment of impairment was completed by analogy (Guidelines, clause 6.24, pp 87- 88). The appropriate analogous condition is mild crepitations of the left AC joint, which corresponds to 10% upper extremity impairment (AMA4, Table 19, p. 59), converted to 1.5% WPI, rounded to 2% WPI.

1. On examination, the claimant demonstrated a symmetrical restriction in cervical movements without evidence of muscle guarding, spasm, or spinal dysmetria. There were no radicular symptoms consistent with a specific dermatomal pattern, and no focal neurological deficits were observed.
2. Based on these findings, the Medical Assessors of the Panel find that the cervical spine condition is consistent with DRE Cervicothoracic Category I, resulting in a 0% WPI under AMA4, Table 3/104.

1. The claimant reported tenderness over the mid-thoracic vertebrae. There was no associated muscle guarding or spasm. There was no asymmetry of movement or spinal dysmetria noted. There was no sensory loss in the intercostal or abdominal regions.
2. Based on these findings, the Medical Assessors of the Panel find that the thoracic spine condition is consistent with DRE Cervicothoracic Category I, resulting in a 0% WPI under AMA 4, Table 3/110.

1. On examination, the claimant demonstrated a symmetrical restriction in lumbar movements without evidence of muscle guarding, spasm, or spinal dysmetria. There were no radicular symptoms consistent with a specific dermatomal pattern, and no focal neurological deficits were observed.
2. Based on these findings previously described, the Medical Assessors of the Panel find that the lumbar spine condition is consistent with DRE Lumbosacral Category I, resulting in a 0% WPI under AMA 4, Table 72, p 110.

1. Based on the Panel's finding that there was no injury caused to the left knee in the accident; no permanent impairment is assigned for the left knee

1. Based on the Panel's finding that there was no injury caused to the right shoulder in the accident; no impairment is assigned to the right shoulder.

1. The Panel conducted a new assessment of all the 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.[17]
3. The Panel adopts the examination findings of Medical Assessor Assem in relation to the injuries to the cervical spine, the thoracic spine, the lumbar spine and the left shoulder.
4. The Panel finds that the injuries to the cervical spine, thoracic spine, lumbar spine and left shoulder caused by the motor accident give rise to a permanent impairment of 2%.

1. The Review Panel revokes the certificate of Medical Assessor Adam Rapaport dated

25 April 2023 and the certificate of Medical Assessor Alan Home dated 8 December 2022 and issues new certificates. 2. The new certificates of the Panel are attached at the commencement of these reasons.

[1] Sections 3.11 and 3.28 of the MAI Act. For motor accidents occurring on or after 1 April 2023, the period of 26 weeks has been amended to 52 weeks.

[3] The Panel is not aware of the precise dates of the initial decision and the internal review decision of the insurer as these documents were not before the Panel.

[4] The MAI Act was amended by the Motor Accident Injuries Amendment Act 2022 to provide that from 1 April 2023, the term "minor injury" is to be expressed as a "threshold injury".

[9] The Guidelines applied by the Panel was the Motor Accident Guidelines Version 9.3 which commenced on 6 December 2024.

[13] [2022] NSWSC 372 (Briggs (No 2)) at [73].

[14] Cf El-Mohamad v Celenk [2017] NSWCA 242 at [16].

[16] Guidelines, clause 6.41 at page 89)

[17] See Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45] and Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21], [64].