1. Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines (the Guidelines).
2. The Guidelines are issued pursuant to s 10.2 of the MAI Act. 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.[6]

1. Causation of injury is addressed from cl 1.5 of the Guidelines. Whilst the clauses are set out in respect of permanent impairment they are relevant to a dispute as to threshold injury.[7] Clauses 1.6 and 1.7 provide:

"1.6 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 judgement.

1.7 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. In determining the issue of causation, the Panel is to also have regard to s 5D of the Civil Liability Act 2002 (CL Act):[8]

(1) A determination that negligence caused particular harm comprises the following elements -

(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).

(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent -

(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party."

1. Medical Assessor Preston took a history from the claimant that she did not have any pre-existing issues with the right shoulder. It was pointed out to her that her general practitioner (GP) had noted right shoulder pain on 22 October 2020 and that there was a delay after the accident in reporting symptoms to her GP. The claimant's explanation that she did experience neck and shoulder pain after the accident and self-medicated initially because she needed to continue working was accepted by the Medical Assessor as a reasonable explanation.

1. These were the insurer's original submissions. Noted that the bundle provided by the claimant's representatives do not include the claimant's submissions provided in support of the original application.
2. The insurer denies that the claimant sustained a cervical spine injury caused by the accident. Alternatively, the injury would not attract a substantial assessment of whole person impairment (WPI), if at all.
3. The insurer notes a lack of contemporaneous documentation of any cervical spine injury, noting the Shellharbour Hospital records the claimant denying neck pain. Thereafter, the documentation suggests she did not seek medical attention until at least 22 October 2020, five months after the accident, and on that occasion, there is no mention of the motor accident, with the clinical note referring only to the right shoulder on a background of bursitis.
4. The insurer notes that the first time the accident is mentioned to the GP is 17 June 2021, and during that consultation and the consultations that follow over 2021 and 2022 there is no mention of neck or cervical spine symptoms.
5. In addition, the insurer submits that the pathology shown on imaging of the cervical spine is most likely degenerative in nature. The insurer also refers to treating reporting, including from Dr Anjum and Dr Markham that found no abnormality in the cervical spine. In addition, Dr Ashford and Dr Pope confirmed there being no signs of radiculopathy.
6. In respect of the right shoulder injury the insurer also submits that no such injury was sustained as a consequence of the motor accident. It is noted that there are no complaints within the Shellharbour Hospital records. As with the cervical spine injury, no mention is made to the GP of the accident until June 2021 and the first mention of the right shoulder is on 22 October 2020 in the context of bursitis. The insurer further notes that this prior history of issues were not disclosed to Dr Markham or Dr Anjum and the medico-legal orthopaedic surgeon, Dr Cadden.

Insurer's submissions dated 5 August 2024 in support of the review application

1. The insurer submits that the Medical Assessor failed to satisfy the requirements of cls 6.40 and 6.41 of the Guidelines. In this regard, the Medical Assessor took a history of no pre-accident shoulder issues, yet the materials suggests otherwise, and this inconsistency was not put to the claimant.
2. The insurer further submits that the Medical Assessor failed to give reasons when concluding that the claimant's delay in reporting symptoms was reasonable, in circumstances where there were prior right shoulder complaints.
3. It is submitted that the Medical Assessor did not give adequate reasons for accepting the claimant's explanation for delay in reporting symptoms because she self-medicated.

1. The claimant rejects the insurer's proposition that the Medical Assessor did not properly apply the test of inconsistency and failed to give sufficient reasons. It is submitted that the Medical Assessor clearly identified the inconsistency and in addition, the Medical Assessor considered the claimant's explanation for delay in reporting symptoms and concluded that it was a reasonable explanation.

1. These submissions are largely identical to the submissions of 5 August 2024 and are in respect of the Medical Assessor's replacement certificate dated 2 October 2024.

1. Relying on Pinarbasi v AAI Limited t/as GIO [2023] NSWSC 80, the claimant submits that insurer's submissions amount to a disagreement with the Medical Assessor's conclusions rather than identifying a material error.

1. The Panel has considered all documents that form part of the bundles lodged in accordance with Panel directions. The Panel has also considered documents lodged by the claimant on or about 6 May 2025 that form part of an application to lodge additional documents.

1. A discharge referral dated 7 May 2020 noted the claimant involved in a pushbike versus car accident. The cervical spine was noted to have no midline tenderness and cleared using the Nexus C spine rules. Right elbow abrasions were noted. Normal sensation noted over radial/ulnar and median territory. Full range of motion noted. A CT of the abdomen and pelvis was undertaken at the hospital with a clinical history of the claimant complaining of severe pain over suprapubic and pubic region.

1. The first entry is 17 June 2020 with a note that the claimant was a new patient having moved from interstate. Reason for visit is centred on women's health issues.
2. The next entry is 22 October 2020, in addition to a follow up to the women's health issue the claimant is recorded as making a complaint of pain in the right shoulder having had bursitis two years prior with a steroid injection. On 26 February 2021 it is noted the claimant had a further steroid injection to the right shoulder with very slight improvement only. The claimant makes ongoing complaints in subsequent appointments of right shoulder symptoms.

1. This file includes records of the claimant complaining of a painful left shoulder on

14 December 2018, with intermittent pain at the joint and was taking Celebrex. She requested a referral for a cortisone injection. Left shoulder movements were noted as limited in flexion and abduction due to pain. A report of the ultrasound injection dated

3 January 2019 notes no rotator cuff tear and a subacromial/subdeltoid bursal inflammatory change.

1. Various reports are provided that include a history of the claimant injuring her right shoulder when hit by a car. The doctor noted in a report dated 22 July 2021 that the claimant had received physiotherapy and cortisone injections but her symptoms had not improved. He recommended surgery with a rotator cuff repair, subacromial decompression and possible biceps tenodesis. That surgery was undertaken and a report of 23 March 2022 noted the case was complicated with the development of frozen shoulder.

1. The doctor notes a history in his report of 31 October 2023 of the claimant sustaining a right shoulder injury as a result of the motor accident with her falling on her right side. He recommended pulsed radiofrequency therapy.

1. In a report dated 22 December 2022 addressed to the claimant's GP, the doctor notes a history of neck pain following the motor accident. He writes that his impression is the claimant is suffering cervical spine degeneration and he referred the claimant to Dr Pitham.

Pre-accident medical history and relevant personal details

1. Ms Pate is 57 years of age and is right handed.
2. She completed a diploma in business accounting after schooling. She worked as a bank manager but had a period of time off work due to mental health issues for four to five years from 2014. On return, she began work as a Disability support worker.
3. Ms Pate moved from Victoria to New South Wales in 2019 and began work for Aruma. She was working as a disability support worker at the time of the motor vehicle accident in 2020 and on the day of the accident was to begin work in a group home.
4. There is an entry in her GP's notes on 22 October 2020 that she had right shoulder bursitis two years before and a steroid injection. However, the Panel notes the records from Living Rock Medical Centre suggest the issue was with the left shoulder in 2018 with a steroid injection undertaken in January 2019.
5. Ms Pate also had left shoulder pain previously. However, this was not long lasting. She was able to work and do "pump" gym classes.

1. The accident occurred on 7 May 2020. Ms Pate was riding a pushbike and going on a ride before going to work. She stopped at lights and then moved on to the left hand side of the road. She was next aware that she was hit and dragged by a car. The driver of the vehicle did not initially stop but did return to the scene 20 to 30 minutes later.
2. Ms Pate said she was thrown off the back of her bike landing on her right side on the road with her helmet hitting the road surface. She was assisted by bystanders and eventually carried from the road.
3. Her partner came to the scene and took her to the emergency department of Shellharbour Hospital. She was complaining of pain down the right side of her body with extensive bruising around the right hip region and pain in the pelvis. There were abrasions over the right elbow and right hip - none required suturing. She had X-rays and CT scans at the hospital and was advised that she had sustained no fractures.
4. She was discharged home with analgesics.

History of symptoms and treatment following the motor accident

1. Ms Pate said she was off work for three days and then returned to work. She had just moved from Victoria for a new job, so she felt that she had to return.
2. She said the bruising eased. She was taking at this time Ibuprofen, Panamax and Panadeine. Ms Pate said that she was aware of right shoulder and neck pain after the accident which became increasingly severe in the right shoulder. She had trouble sleeping.
3. Ms Pate sought the advice of her GP Dr Thangaval approximately six to eight months after the accident. She had treatment directed to the right shoulder including three corticosteroid injections.
4. She subsequently had an MRI of the right shoulder and a course of physiotherapy.
5. Ms Pate was referred to Dr Phillip Markham in Wollongong and had surgery to the right shoulder on the 22 September 2021. The operation report noted a right shoulder arthroscopy, biceps tenotomy and tenodesis, acromioplasty and rotator cuff repair.
6. She said that she was in a sling for three months in severe pain and that the surgery was complicated by the development of "a frozen shoulder". Ms Pate was off work for a 12 month period and had treatment with further corticosteroid injections, physiotherapy and hydrotherapy.
7. Once she came off the stronger medications of analgesics for her shoulder pain, she was aware of increasing neck discomfort. Ms Pate reports that her neck pain had been present since the accident became noticeably worse.
8. She had further shoulder surgery to improve scarring at the right shoulder with Dr Starr, a plastic surgeon, towards the end of 2022. The surgery was helpful in improving the appearance of the right shoulder.
9. Ms Pate has been seeing Dr Nahza, pain specialist with some further procedures including injections and nerve ablations.
10. She had a hydrodilatation to treat the "frozen shoulder".
11. Dr Nahza has recommended further orthopaedic review but at this stage there is no definite plans for further surgery.

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

1. There have been no further accidents or injuries.

1. Ms Pate reports that her neck has now improved.
2. She still has pain and stiffness in the right shoulder. Sleeping is a problem because of the shoulder pain.
3. She can ride her bike and drive.
4. With respect to the scarring, Ms Pate is aware of the scars of the shoulder and applies a cream on a daily basis. Her clothing choices are determined by the appearance of the scar.
5. Ms Pate is working in the disability care field for 32 hours per week. There are no restrictions on her duties but she tries to avoid certain activities such as manual handling, vacuuming and personal care of residents such as showering. She works in a group home.
6. She does have difficulties with her own self-care such as dressing and doing her hair because of the restriction and pain in her right shoulder. Her partner helps with much of the housework. She no longer does exercises such as Pilates or yoga - she cannot bear weight on the right arm.

1. Ms Pate is taking up to six Ibuprofen and paracetamol tablets daily.
2. She will make an appointment for further orthopaedic review under the recommendation of Dr Nahza but has not yet had a further orthopaedic opinion.
3. Ms Pate applies topical liniment to her shoulder which includes Capsaicin and Ibuprofen among other ingredients.

1. Ms Pate sat comfortably and had a normal gait. Her height was 162cm with her weight being 58.6kg.

1. On examination of the cervical spine there was tenderness to palpation of the left paravertebral muscles to the midline. There was no muscle spasm or guarding.
2. Range of movement was normal in all planes - there was no dysmetria.

1. On examination of the right shoulder there were two scars anteriorly, one 7cm in length below the right acromioclavicular joint and the other 5cm in length over the proximal biceps insertion. Both scars had slight pigment change. The longer scar was irregular and depressed - there was a contour defect. There was tethering of the scar over the biceps. There was reportedly a scar over the posterior aspect of the shoulder which was not distinguishable from surrounding skin on examination today.
2. With respect to the right shoulder there was no obvious wasting. The maximum upper arm circumference was 30cm on the right and left. The maximum forearm circumference was 25cm on the right and 24.5cm on the left - she is right handed.
3. Range of movement was restricted in the right shoulder as outlined below. The range of movement was consistent.

1. She was informed that the range of movement in the right shoulder was better than when seen by Medical Assessor Preston - she understood and agreed that there had been some improvement.
2. There was a full range of movement at the elbow in flexion and extension and examination of the wrists and small joints of the hands was unremarkable.

1. No inconsistency was noted. The insurer's submissions are noted in respect of the delay in reporting right shoulder symptoms. This issue was addressed with the claimant and she answered that she had to work for financial reasons and not lose new job - she took analgesics to do this despite her neck and shoulder pain. Her explanation has ultimately been accepted as being reasonable.

Summary of relevant radiological and medical imaging and other investigations

1. At the time of the accident in Shellharbour Hospital the following were noted:

"Chest x-ray reported as normal; X-ray right elbow reported as normal; X-ray right knee reported as normal; CT brain - no significant acute sequalae of trauma demonstrated; CT abdomen and pelvis was a normal study."

1. The following reports were also noted:
   • 24 October 2020 - Ultrasound and injection scan right shoulder - reports questionable mild subdeltoid bursitis, mild-to-moderate tendinosis of the supraspinatus tendon and questionable mild tenosynovitis of the long head of the biceps. Successful injection into the right subdeltoid bursa.
   • 27 February 2021 - injection right subdeltoid bursa.
   • 15 April 2021 - injection right subacromial bursa.
   • 27 May 2021 - MRI right shoulder reports low grade subacromial subdeltoid bursitis, mild supraspinatus tendinosis and small partial thickness intrasubstance tear middle third of supraspinatus associated with mild muscle bulk atrophy.
   • 18 January 2022 - CT guided hydrodilatation of the left (?right) glenohumeral joint.
   • 16 March 2022 - right subacromial/subdeltoid bursa injection.
   • 19 December 2022 - MRI cervical spine and right shoulder
   • Cervical spine - reports minor spondylitic changes in the mid-to-lower C spine at C5/6 and C6/7 levels with minor endplate disc changes without significant impingement on the existing nerve roots or the central canal/lateral recesses.
   • Right shoulder - intact double row rotator cuff repair at the junction between supraspinatus and infraspinatus region. No unusual features are noted. No evidence of significant bursal inflammatory changes demonstrated. No evidence of significant capsulitis. Mild capsulitis is not entirely excluded.
   • 5 July 2022 - right glenohumeral joint hydrodilatation.

1. Ms Pate is a 57 year old woman who was involved in an accident on 7 May 2020 when she was hit by a motor vehicle and thrown on to her right side on the road. She attended the emergency department. There is a history of pre-existing right shoulder pain which had resolved - there was no pre-existing shoulder complaint at the time of the subject accident. However, it is noted that the documentation provided suggests a history of left shoulder problems with a steroid injection given in January 2019.
2. There was a long delay (six to eight months) between the accident and attending her GP regarding the shoulder. Ms Pate said that she did experience both neck and right shoulder pain following the accident but that she self-medicated initially because she needed to continue to work. Ms Pate's explanation is accepted as reasonable, and given the nature of the accident, it is not unexpected that she would have developed ongoing shoulder pain. The mechanism of the accident is consistent with the complaints made and the explanation given by the claimant at the re-examination was accepted as reasonable by Medical Assessors Gorman and Rosenthal using their clinical judgment.
3. She was diagnosed with a rotator cuff tear and treated surgically. This was complicated by the development of an adhesive capsulitis. She has had two hydrodilatation procedures.
4. We note she has had extensive further conservative treatment with physiotherapy, further corticosteroid injections and procedures under the direction of Dr Nahza, pain specialist. Despite this, she has residual restriction in right shoulder range of movement. There is likely some degree of an adhesive capsulitis contributing to this.
5. With respect to the neck pain, there is a history of neck pain occurring after the accident which became more noticeable once stronger analgesics were discontinued post right shoulder surgery.
6. Ms Pate has underlying degenerative change in the cervical spine which is the likely cause of symptoms. She does not have sensory disturbance in her arms or clinical findings to suggest a radiculopathy.

1. The following injuries WERE caused by the motor accident:
   • cervical spine - aggravation of underlying degenerative change, and
   • right shoulder - rotator cuff pathology; surgical intervention and secondary adhesive capsulitis.

1. Permanent impairment is defined in the American Medical Association's Guides to the Evaluation of Permanent Impairment (Fourth Edition) (AMA 4 Guides) (p 315) 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."

1. Ms Pate's symptoms have remained stable for more than six months. Her range of motion has improved since the assessment by Medical Assessor Preston 10 months before this assessment (as would be expected with adhesive capsulitis). The symptoms and stiffness have not plateaued. No further treatment is planned - she is no longer seeing her pain specialist (Dr Nazha). It is unlikely that her level of impairment will change by more than 3% over the next 12 months.

1. The determination as to permanent impairment is made in accordance with AMA 4 Guides and Part 6 of the Motor Accident Guidelines.

1. She has minimal symptoms now. There is no dysmetria or radicular symptoms. She does not have any radiculopathy. She is assessed as a DRE category I cervical spine impairment giving her 0% WPI based on Table 73 on page 110 of the AMA 4 Guides.

1. Using Figures 38, 41 and 44 on pages 43 to 45 of the AMA 4 Guides and Table 3 on page 20 the following impairments are determined - limitation in flexion gives 5% upper extremity impairment (UEI), limitation in extension 0% UEI, limitation in abduction4% UEI, limitation in adduction 0% UEI, limitation in external rotation 0% UEI and internal rotation 2% UEI.
2. The total UEI is therefore 11% which equates to 7% WPI. There is scarring from the surgery - using the TEMSKI criteria (Table 6.18 on page 131 of Motor Accident Guidelines, Version 9.3, Dec 2024):
   • conscious - she was conscious of the scar;
   • colour - the scar was slightly more pigmented than the surrounding skin;
   • ability to locate - she could easily locate the scar;
   • trophic changes - no trophic changes;
   • suture marks - there were no suture marks but the scar was irregular;
   • anatomic location - they were over the anterior shoulder visible with sleeveless tops;
   • contour - the scars were depressed - there was a definite contour defect
   • effect of ADLs - no effect on ADLs;
   • treatment required - no treatment required, and
   • adherence - the scar over the biceps was adherent to underlying structures and became more depressed when the biceps was flexed.
3. The scarring rates 2% on the TEMSKI scale as being the best fit in the judgment of Medical Assessors Gorman and Rosenthal.

1. While there was a history of some right shoulder pain it was not persistent and did not result in any impairment.

Chapter 3 - Figure 38, 41, 44 and Table 3 on page 20

1. The degree of permanent impairment caused by the motor accident is 9%. It is noted that the claimant's condition has improved since the examination with Medical Assessor Preston.
2. Given the degree of WPI differs from the findings of Medical Assessor Preston the replacement certificate of 2 October 204 is revoked and new certificate is provided at the beginning of these reasons.

[7] See Briggs v IAG Limited t/as NRMA Insurance [2022] NSWSC 372 at [35].