MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; review of single medical assessment by Review Panel; two disputes; whether injuries caused by the motor accident are threshold injuries for the purposes of the Act and whether the injuries caused by the accident give rise to a permanent impairment that is greater than 10%; whether infraspinatus tear of the shoulder was caused by the motor accident; Held - injuries to the cervical spine and lumbar spine are threshold injuries; injury to the right shoulder is a non-threshold injury due to tear of infraspinatus tendon; significant history of pre-existing issues to the spine and shoulders; comparison of pre and post-accident radiology; found the tear more likely to have been caused by the accident due to contemporaneous complaint; assessment of cervical and lumbar spine revealed a DRE Category I impairment giving rise to 0% whole person impairment (WPI); 1% WPI of the right shoulder; claimant did suffer an injury that is not a threshold injury and WPI of 1% is not greater than 10%; medical certificate revoked; new certificate issued.

ASSESSMENT OF THRESHOLD INJURY AND WHOLE PERSON IMPAIRMENT

Issued under Division 7.5 of the Motor Accident Injuries Act 2017

1. revokes the certificate of Medical Assessor Wijetunga dated 3 September 2024;
2. certifies the following injuries were caused by the motor accident gives rise to a permanent impairment of 1% and is NOT greater than 10%:
   • Cervical spine - Whiplash associated disorder;
   • Right shoulder - Tear of infraspinatus tendon, and
   • Lumbar spine - musculoligamentous sprain of the lumbar spine;
3. certifies that the following injuries caused by the motor accident are threshold injuries for the purposes of the Motor Accident Injuries Act 2017.
   • Cervical spine - whiplash associated disorder, and
   • Lumbar spine - musculoligamentous sprain of the lumbar spine, and
4. certifies that the following injuries caused by the motor accident are non threshold injuries for the purposes of the Motor Accident Injuries Act 2017:
   • Right shoulder - tear of infraspinatus tendon.

1. Mr Maroun Raymond Anjoul, (the claimant) is a 51-year-old male who suffered injury on

9 November 2021 due to a motor vehicle accident. 2. A claim was lodged upon Insurance Australia Limited t/as NRMA Insurance (the insurer) who is the compulsory third party insurer of the vehicle considered to be at fault. The insurer has a liability to pay statutory benefits and/or damages under the Motor Accident Injuries Act 2017 (MAI Act). 3. The review involves two issues of dispute. The first being whether any physical injury suffered by the claimant as a result of the accident is a threshold injury for the purposes of the MAI Act. 4. A threshold injury determination is an important one in terms of an injured person's entitlements under the MAI Act. If a determination finds that the motor accident has caused a non-threshold injury then the gateway to ongoing statutory benefits beyond 26/52 weeks and an entitlement to claim common law damages is opened. 5. The second issue in dispute is whether the "degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%."[1] 6. This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Nelukshi Wijetunga. She issued a certificate dated 29 July 2024.

1. The insurer sought a review of the medical assessment in accordance with s 7.26 of the MAI Act (review). On 8 December 2024, the President's delegate determined that there was reasonable cause to suspect the medical assessment was incorrect in a material respect. As such the review application was accepted and referred to a Review Panel (the Panel).
2. A review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission.[2]
3. The review of the medical assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned: s 7.26(6).
4. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (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: Rule 128 of the Rules.
5. Following an initial preliminary conference, the Panel issued directions dated 18 March 2025 requiring the claimant to attend a re-examination with Medical Assessor Gorman on

2 May 2025. The claimant attended the examination, and details are set out below. 6. The Panel reconvened via teleconference on 21 May 2025 and discussed the examination findings and the evidence lodged by the parties.

1. The term 'threshold injury' is defined in s 1.6 of the MAI Act. It provides that a threshold injury is a soft tissue injury or a threshold psychological or psychiatric injury. Section 1.6(2) of the MAI Act defines a soft tissue injury to mean:

"...an 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 also provides that the regulations may exclude or include a specified injury from being a soft tissue injury or a threshold psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines threshold 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. Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by a motor accident is a threshold injury for the purposes of the MAI Act. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:

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

5.4 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 5.6 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."
3. 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 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."

1. Clause 5.9 of the Guidelines provides that neurological symptoms of the neck or spine that do not meet the assessment criteria for radiculopathy, will be assessed as a threshold injury.

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.[3]

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.[4] Clause 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).[5]

(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 Wijetunga certified injuries to the cervical spine and lumbar spine as being threshold injuries for the purposes of the MAI Act and an injury to the right shoulder (tear of infraspinatus tendon) as being a non-threshold injury. She certified a whole person impairment (WPI) of 12%.
2. On examination of the cervical spine the Medical Assessor found tenderness of firm palpation of the right side of the cervical spine. Normal spinal curvature noted and no muscle spasm or guarding. Right rotation of the cervical spine was measured at two thirds and half at right flexion. The altered sensation over the left arm was found to not correspond with a specific dermatomal area.
3. In respect of the lumbar spine, the Medical Assessor found normal spinal curvature, tenderness to palpation over the paraspinal muscles. There was no muscle spasm or guarding found and there was normal range of movement. There was reduced sensibility found over the lateral aspect of the left thigh and medial aspect of the left lower leg consistent with L4/5 dermatomal area. Straight leg raise was measured at 80 degrees bilaterally and the sciatic stretch test was negative.

Insurer's review submissions dated 12 September 2024

1. The insurer submits that the Medical Assessor failed to assess pre-existing impairment pursuant to cl 6.31 of the Guidelines. The insurer submits that the range of motion alone does not constitute objective evidence and the Medical Assessor erred by not looking beyond documented range of motion. In this regard, the insurer refers to a referral to

Dr McKechnie dated 3 November 2021 (six days prior to the subject accident). 2. The insurer submits that pre-existing deduction in the cervical spine for non-verifiable radicular complaints would attract a DRE category II rating resulting in a 5% pre-existing impairment. 3. In respect of the lumbar spine, the insurer submits that the presence of left thigh numbness and radiating pain to the lower limbs prior to the subject accident is sufficient to meet the definition of non-verifiable radicular complaint attracting a 5% WPI for pre-existing impairment.

Claimant's review submissions in reply dated 4 October 2024

1. The claimant notes the insurer's submissions only address the issue of assessment of WPI and not the threshold injury dispute. The claimant suggests therefore that presumably the insurer concedes that the claimant has sustained a non-threshold injury. The Panel notes, however, s7.26(6) necessitates the Panel conduct a review by way of a new assessment of all matters to which the medical assessment is concerned.
2. The claimant disputes the insurer's suggestion that a deduction for pre-existing impairment was required and suggests that it is "quite obvious" the Medical Assessor reviewed all eight categories of impairment assessment and that in circumstances where no objective evidence reflecting range of motion prior to the accident then no deduction for pre-existing impairment is to be made.
3. Similar submissions are made in respect of the lumbar spine impairment assessment of the Medical Assessor, with there being no deduction for pre-existing impairment.

1. The Panel has considered all documents provided by the parties in their respective bundles lodged in compliance with Panel directions. This includes the insurer's bundle lodged on

19 December 2024 consisting of 636 pages - "Panel Document Bundle - Maroun Raymond Anjoul dated 19.12.2024" and the claimant's bundle lodged on 4 March 2025 consisting of 131 pages - "ANJOULREVIEWPANELBUNDLE." 2. Not every document is referred to by the Panel within these reasons, however, some material is referenced where directly relevant to findings. However, the Panel's certificate and reasons have been provided in the context of all material having been considered.

1. The claimant has a long history of cervical, lumbar and right shoulder complaints. In a referral to Dr McKechnie dated 14 May 2019 by the claimant's general practitioner (GP) a history of lumbo-sacral disc disease is noted and neck pain with "radiculopathy" on

4 December 2017. The claimant is noted to be "well known" Dr McKechnie with the claimant having cervical and lumbar disc lesions causing pain with radiculopathy and numbness in the left leg. An earlier referral in December 2014 includes mention of radiating pain and stiffness from the cervical and lumbar spines due to disc lesions. 2. Low back pain is noted to have been increased following a fall at a shopping centre and the claimant was once again referred to Dr McKechnie in May 2018. 3. There are various reports of Dr McKechnie included in the material provided to the Panel some of the reports appear to be dated incorrectly, with multiple reports dated

16 March 2022 and then not corresponding with the content of the report. In a report dated 16 March 2022 (although with an examination date of 11 March 2015) the doctor noted a one year history of lower back pain which had responded to chiropractic treatment, suggesting the onset of symptoms arising in 2014. The main problem was described as neck pain extending to the left shoulder with a burning sensation in the posterior aspect of the shoulder. Also noted was occasional radiation of numbness through the arm with no radicular arm pain present. No neurological deficits were found. 4. In a report dated 25 July 2018 Dr McKechnie notes the fall at a shopping centre in December 2017 with the claimant since complaining of back pain radiating to the left leg with distal numbness to the foot consistent with lumbar radiculopathy. 5. The motor accident is mentioned following examination on 8 December 2021. The doctor describes the claimant having neck pain radiating across both shoulders, worse on the right with intermittent radiation through to the right arm towards the hand. Low back pain is noted radiating to the left side although, no radicular leg pain. Reduced range of movement is noted in the neck, back and right shoulder. 6. The GP records from United Care Medical Centre, document the pre-existing complaints to the neck and the back, including notes of "radiculopathy", for example on 6 February 2020. Leading up to the accident the complaints are repeated and on 3 November 2021 the claimant is noted to have had left shoulder pain that was "severe' and caused him to not be able to sleep. Pain is noted to emanate to the neck. 7. The notes document the claimant attending to see Dr Guiguis on 11 November 2021 (two days after the accident) and the claimant is recorded as complaining of neck pain and tenderness, low back pain and tenderness and restricted range of movements.

Summary of relevant radiological and medical imaging and other investigations

1. Ultrasound right shoulder, dated 17 August 2006. No cuff tear identified. Subacromial subdeltoid bursitis.
2. X-ray left humerus, dated 14 December 2009. Almost completely healed comminuted fracture of mid shaft of humerus with mild residual deformity.
3. Ultrasound right shoulder, dated 20 May 2010. Haemorrhagic subacromial debris. No discrete rotator cuff tear. Presumed longstanding calcific tendinotic change.
4. X-ray right shoulder, dated 22 May 2010. Normal alignment of glenohumeral joint, space preserved, minimally displaced fracture of greater tuberosity.
5. CT lumbar spine, dated 8 September 2012. On a background of back pain. No disc protrusion or evidence of neural impingement.
6. X-ray cervical spine, dated 12 December 2014. C3/4 and C5/6 uncovertebral osteophytes causing minor right foraminal narrowing and mild left foraminal narrowing.
7. CT cervical spine, dated 18 December 2014, Persistent neck pain. Spondylotic change within the cervical spine, is most pronounced at C5/6. No significant canal narrowing, exit foraminal narrowing is most pronounced bilaterally at C5/6. Consideration should be given to perineural injection.
8. CT lumbar spine, dated 19 December 2014. Mild degenerative disc disease in lower lumbar spine as described. A convincing feature of nerve root impingement compression. X-ray cervical spine, dated 12 January 2016. Mild loss height of C5/6 intervertebral disc with small anterior vertebral body osteophytes. No bony cervical rib is seen.
9. X-ray cervical spine, dated 25 November 2016. Small well corticated ossicle projected posterior to the C7 spinous process, likely longstanding. No evidence of fracture. Degenerative change at C5/6 disc space.
10. MRI cervical spine, dated 16 December 2016: • Multilevel degenerative disc change, most severe at C6/7 with broad based disc protrusion, fairly large left foraminal component, endplate osteophytic change and consequent moderate to severe left neural exit foraminal narrowing. • C5/6 level, also demonstrates broad based disc protrusion with right paracentral component. Endplate osteophytic change and moderate to severe bilateral neural exit foraminal narrowing. • Other levels demonstrate right sided predominant foraminal narrowing as described above.
11. CT guided left C6/7 foraminal injection, performed 20 January 2017. Small amount of intraspinal epidural extension.
12. CT guided left C6 perineural injection, performed 11 February 2017.
13. Ultrasound right hand, dated 14 August 2017. No flexor tendon injury has been demonstrated.
14. Ultrasound right hand, dated 16 October 2017. A clear cause for patient's symptoms has not been demonstrated.
15. MRI cervical spine, dated 16 November 2017: when compared to imaging of 15 December 2016, there has been an increase of size of central disc extrusion at C3/4 with moderate to severe canal stenosis. • Moderate to severe bilateral neural exit foraminal narrowing due to foraminal components of disc protrusion and uncovertebral joint hypertrophy with potential for impingement exiting bilateral C4 nerve roots. • At C4/5, previous central right paracentral disc protrusion with moderate to severe right neural exit foraminal narrowing stable. • Stable C5/6 right paracentral disc extrusion contacting and flattening right anterior aspect of cervical cord and consequent moderate to severe neural exit foraminal narrowing • Stable C6/7 broad based disc protrusion with left greater than right foraminal components. CT lumbar spine, dated 3 January 2018. At L4/5, there is left excentric disc bulge present. No evidence of neural structure impingement. MRI lumbosacral spine, dated 8 February 2018: • Small left foraminal disc protrusion at L4/5 with contact of exiting left L4 nerve root and mild to moderate left facet joint hypertrophy with moderate left L4/5 facet joint effusion. • They are more than likely the source of the patient's pain.
16. CT guided left L4/5 foraminal facet joint injections, performed 20 February 2018. Ultrasound right shoulder, dated 14 August 2018. Insertional tendinosis of supraspinatus, infraspinatus and a lesser extent subscapularis. There is a partial thickness tear to the superior fibres of subscapularis but no effect on the underlying long head of biceps. maximum tenderness corresponds with infraspinatus tendinosis. There is reactive subacromial subdeltoid bursitis given impingement with 50° of motion, amenable to percutaneous steroid injection.
17. MRI cervical spine, dated 24 August 2018. Previously demonstrated disc protrusion extrusion C2/3, C3/4 have resolved and reduced in size. No evidence of cord flattening in C2/3 or C3/4. Unchanged spondylitic change in C4/5, C5/6. Maximum foraminal stenosis observed at C5/6, worse on right, potentially compromising exiting nerve roots.
18. Ultrasound left shoulder, dated 29 May 2019. Left supraspinatus calcific tendinosis. Subacromial bursitis with impingement at 60°.
19. MRI cervical spine, dated 28 June 2019:
    • multilevel cervical spondylosis, and
    • the left C6 and C7 nerve roots are impinged withing the foramen. This may account for symptoms.
20. Neurophysiological studies, dated 20 November 2019. Nerve conduction studies within normal movements. Shows changes of acute denervation and chronic denervation and re-innervation at C6/7 innovator muscles on both sides. Electrodiagnostic evidence of active and chronic C6/7 radiculopathy on both sides.

1. CT cervical and lumbar spine, dated 11 November 2021: variable degenerative spondylosis of cervical spine.
   • • C4/5 broad based central disc protrusion but without nerve root abutment, and
   • • no traumatic lesions seen on lumbar or cervical spine.
2. MRI cervical and lumbar spine, dated 25 April 2022:
   • Cervical spine - Cervical spondylitic change noted as described above - There is no evidence of acute cervical spinal injury. No cord contusion or haemorrhage detected - No paraspinal ligamentous disruption or haematoma identified.
   • Lumbar spine - Minimal spondylitic change within lumbar spine - No evidence of marrow oedema to indicate bone bruising or contusion - No paraspinal haematoma.
3. Ultrasound right shoulder, dated 23 September 2022. Supraspinatus tendinopathy, infraspinatus tendinopathy with partial thickness tear. Subscapularis tendinopathy. Mild subacromial subdeltoid bursitis with impingement.

1. The below are the clinical re-examination findings of Medical Assessor Gorman which were discussed at the second Panel teleconference.

1. Maroun Raymond Anjoul attended the assessment unaccompanied.

Pre-accident medical history and relevant personal details

1. Mr Anjoul is a 51-year-old man. He was born in Lebanon and migrated to Australia in 1975. He completed all his secondary education.
2. He does not smoke or drink alcohol. He is right hand dominant.
3. He is married. He does not have children.
4. He has mainly done café work since leaving school.
5. At the time of the accident, he was employed at Zouki which is a car wash where he worked on a full-time basis as the café manager and assisting in making coffee.
6. After the accident he had a few weeks in total off work.
7. He now manages a café at the Mater Hospital.
8. He describes an accident at a shopping centre in 2017 where he injured his left wrist and lower back and left thigh numbness. At that time, he underwent physiotherapy.
9. Prior to the subject accident he also described intermittent neck pain. He has also undergone steroid injections into the neck because of neck pain in 2018.
10. He was unable to recall the severe episode of severe left shoulder pain from the neck described in the week before the accident.
11. Neither was he able to recall the severe lower back pain in October and February 2021.
12. He reports that prior to the accident he would consult a chiropractor every 2 weeks "(on and off)."

1. The claimant was the driver of a vehicle, with his wife as a passenger. When stationary at an intersection when a car to the right lost control and ran into the driver's side of the claimant's vehicle. Airbags were not deployed and he was able to exit the vehicle from the passenger side. Ambulance and police did not attend the scene. The claimant's vehicle was subsequently written off.

History of symptoms and treatment following the motor accident

1. He recalls some pain around the right side of his ribs, right shoulder, his right neck and low back.
2. Due to worsening pain, he consulted a doctor after a few days. He returned to work after around a week and then experienced increased symptoms to the neck and lower back.
3. He was referred for physiotherapy for about six to seven weeks and believes this was of temporary relief. He required Tramadol for analgesia.
4. He has seen a chiropractor on a few occasions.
5. He was referred to Dr McKechnie (Neurosurgeon), whom he had seen in the past.
6. The claimant feels that his pain has worsened since the subject accident.

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

1. He reported that he had improved since the last assessment done by Medical Assessor Wijetunga.
2. He firstly described pain over the right shoulder posteriorly. It is like a "needle" or like a "screwdriver" into the scapula.
3. He gets pins and needles in both arms which can wake him.
4. He sleeps poorly because of the arm and scapular pain.
5. He only has mild intermittent cervical discomfort now.
6. He has stiffness in his low back which was worse last month. He cannot stand for more than one hour he reports.

1. At present he takes Panadol at work. On occasions for more severe pain, he takes Tramadol 50mg (three to four times a week).
2. He still sees the chiropractor as needed.

1. He was a well presented man who moved easily around the examination area.
2. He sat comfortable for the duration of the consultation.
3. He took off a pull-over easily.
4. He demonstrates standing and walking on his toes and heels. He is able to reach a squatted position.

1. He has tenderness on firm palpation of the right side of his cervical spine around the area of C5/6. There is normal spinal curvature. There is no muscle spasm or guarding. There was no tenderness.
2. He demonstrates a normal range of movements in the cervical spine in all planes.
3. The neurological examination of the upper limbs reflects normal tone, muscle strength bilateral symmetrical reflexes of the upper limbs and he had normal sensation (except for a tingling sensation over the whole arm on each side when I did the reflex examination). There was no wasting.

1. He has normal spinal curvature of his lumbosacral spine He does not have any muscle spasm or guarding.
2. He easily bent over to put on and off his shoes.
3. He demonstrates normal range of movement in all planes - there was no dysmetria.
4. The neurological examination of the lower limbs reflects normal tone, muscle strength bilateral symmetrical reflexes of the lower limbs and normal sensation. There was no wasting.
5. He can straight leg raise to 80 degrees bilaterally.

1. Mr Anjoul does not have any atrophy on inspection. There is some tenderness over the right scapular region. There are mild signs of impingement of the right shoulder.
2. He demonstrates the following range of movements as measured by goniometer. There was mild restriction of elevation on the right caused by the scapular pain.

1. The Panel discussed the above clinical examination findings of Medical Assessor Gorman at the second Panel teleconference on 21 May 2025. Following this discussion, including consideration of the parties' evidence it was agreed that the Panel adopt the clinical findings of Medical Assessor Gorman as part of the Panel's reasons.
2. The evidence demonstrates a significant history of neck, lower back and shoulder symptoms. This includes a referral to Dr McKechnie, within the week before the motor accident. However, on the evidence the Panel is satisfied that the contemporaneous record of increased symptoms to the neck, low back and right shoulder that the claimant has suffered injury to such areas as a result of the subject motor accident. The claimant made essentially immediate complaints of symptoms to the neck and lower back that were increased from prior to the accident.
3. The Panel also notes that the GP records include complaints of shoulder pain prior to the accident, with the most recent complaints before the accident describing severe shoulder pain, but on the left side. In the month following the accident, the claimant is noted by

Dr McKechnie to have pain in both shoulders after the accident, but worse on the right. 4. Accordingly, the Panel is satisfied on the balance of probabilities that the injuries referred for assessment were caused by the motor vehicle accident. 5. The following injuries WERE caused by the motor accident: * Cervical spine - Whiplash associated disorder * Right shoulder - Tear of infraspinatus tendon * Lumbar spine - musculoligamentous sprain of the lumbar spine.

1. In respect of the infraspinatus tendon tear, the Panel has carefully considered the radiology reports and agrees with the analysis of Medical Assessor Wijetunga. That is, in 2018 an ultrasound revealed tendinosis of both the supraspinatus and infraspinatus and a tear of the supraspinatus. There was no tear of the infraspinatus reported at that time. In addition, the Panel agrees that the evidence establishes the predominant complaints leading up to the accident related to the left shoulder rather than the right.
2. The Panel has considered the mechanism of the motor accident, and agrees that it is consistent that an infraspinatus tear could be caused by such collision noting that the force of impact leading to the vehicle (brand new) being written off. Further the collision occurred to the right side. Thereafter the claimant makes complaints of right shoulder symptoms. It may be that there was an increased vulnerability to a tear due to pre-existing degeneration, however, on the balance of probabilities the Panel is satisfied that the infraspinatus tear was caused by the motor accident.
3. It follows, therefore that the injury does not fall within the definition of a threshold injury given it involves a partial tear of a tendon.

1. As noted above, the claimant has a significant pre-accident history of cervical spine symptoms that has involved the administration of several steroid injections. Examination did not confirm the existence of two or more of the required signs of radiculopathy as provided for at cl 6.138 of the Guidelines. There is also no demonstrated nerve impingement or cervical spine acute injury on the radiology.
2. There has been no nerve injury, complete or partial rupture of tendons, ligaments, menisci or cartilage and therefore the injury falls within the definition of threshold injury.

1. Similar to the cervical spine, there is a significant pre-existing history in respect of the lumbar spine. The examination did not reveal there to be radiculopathy as per the Guidelines and there is no evidence of a nerve injury or a complete or partial rupture of tendons, ligaments, menisci or cartilage.
2. The injury falls within the definition of a threshold injury.

1. The following injury is a threshold injury:
   • Cervical spine - Whiplash associated disorder, and
   • Lumbar spine - musculoligamentous sprain of the lumbar spine.
2. The following injury is not a threshold injury:
   • Right shoulder - Tear of infraspinatus tendon.

1. Permanent impairment is defined in the American Medical Association's Guides to the Evaluation of Permanent Impairment (Fourth Edition) (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. It is now more than three years since the accident. His signs and symptoms have improved and are now stabilised. He is not having any specific treatment. His impairment is stable and will not change over the next 12 months.

1. The determination as to permanent impairment is made in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment (Fourth Edition) and Part 6 of the Motor Accident Guidelines.
2. In the cervical spine he has ongoing intermittent discomfort but no dysmetria nor any

non-verifiable radicular complaints. He has no radiculopathy. He is assessed as DRE I giving him a WPI of 0% based on Table 73 on page 110 of the AMA 4th Edition. 3. In the lumbar spine he has ongoing intermittent discomfort but no dysmetria nor any non-verifiable radicular complaints. He has no radiculopathy. He is assessed as DRE I giving him a WPI of 0% based on Table 72 on page 110 of the AMA 4th Edition. 4. In the right shoulder using Figure 38 the reduction in right shoulder elevation gives and upper extremity impairment of 1% which equates to a 1% WPI based on Table 3 on page 20 of AMA 4th Edition.

1. Nil applicable - while he had right shoulder complaints there was no demonstrable impairment before the motor accident. Noting the 0% WPI assessed in respect of the lumbar and cervical spines, assessment of pre-existing impairment is not applicable.

Chapter 3 - Figure 38, 41, 44 and Table 3 on page 20 of AMA 4

1. Degree of permanent impairment caused by the motor accident is 1%.

1. The Panel's findings differ from that of Medical Assessor Wijetunga. A new certificate is provided at the beginning of these reasons.

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