Issued under Division 7.5 of the Motor Accident Injuries Act 2017

1. confirms the certificate of Medical Assessor Assem dated 23 June 2025, and
2. certifies that the injuries sustained by Ms Dao in the motor accident on 13 July 2023 are threshold injuries for the purposes of the Motor Accident Injuries Act 2017.

A statement setting out the Panel's reasons for the assessment is included with this certificate.

1. Yen Sang Dao was involved in a motor accident on 13 July 2023. The claimant says she was driving in the right-hand lane when the car behind her merged into the left lane, hit the vehicle in front of that car (and next to her) and that the other car "bounced" and hit her car.
2. Ms Dao says she injured her neck, back, left shoulder, right leg and knees in the accident and she developed psychological injuries. She made a claim for statutory benefits with NRMA Insurance, the third-party insurer of the vehicle Ms Dao says caused her accident.
3. A medical dispute about whether Ms Dao's injuries are threshold injuries or not has arisen in connection with her claim and on 19 February 2025 Ms Dao referred that dispute to the Personal Injury Commission (the Commission) for assessment.
4. On 25 June 2025 Medical Assessor Assem determined all of Ms Dao's injuries caused by the accident were threshold injuries.
5. The claimant lodged an application with the Commission for Review of the Medical Assessor's decision. On 21 August 2025, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and allowed the Review to proceed. The President's delegate then convened this Panel to conduct the Review.

1. Ms Dao's claim is governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act). This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
2. While almost all injured persons are entitled to some statutory benefits, there are some disentitling provisions and limits to the amount and extent of benefits and compensation available. One of these restrictions is that if the only injuries sustained by the injured person are "threshold" injuries, the injured person cannot receive statutory benefits beyond 52 weeks after the accident, and they cannot recover damages.

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

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

1. If a person injured in a car accident sustains soft tissue injuries only, then, unless one of those soft tissue injuries falls within the exclusions contained in s 1.6(2) (highlighted in paragraph 8 above), the injured person's statutory benefits cease in accordance with ss 3.11 and 3.28 of the MAI Act.
2. Section 1.6(4) provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) says that "an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)" is a threshold injury.
3. Clause 5.8 of the Motor Accident Guidelines[1] defines radiculopathy and identifies five signs of radiculopathy, two of which must be found on a clinical examination in order to satisfy the definition. The Guidelines adopt the method of assessment of radiculopathy provided for in the whole person impairment chapter of Part 6 of the Guidelines.
4. In summary, if a person injured in a car accident sustains a spinal nerve injury this is a threshold injury (in accordance with Part 1 cl 4 of the Regulation) unless the particular nerve injury manifests in two of the five signs of radiculopathy.

1. If there is a dispute about whether an injured person's injuries are threshold injuries or not, that matter is declared a medical assessment matter which may be referred to the Commission for determination.[2]
2. Chapter 7, Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to a medical assessment such as Medical Assessor Assem's, further medical assessments and the Review of medical assessments by this Panel[3].

1. Medical Assessor Assem examined the claimant on 24 June 2025 and issued his certificate on 25 June 2025.
2. The Medical Assessor confirms at [2][4] that he was asked to assess the following injuries:

(a) left shoulder - partial tendon tear (supraspinatus);

(b) cervical spine - whiplash, persistent neck pain, tenderness at C4, bilateral trapezius, and left sternocleidomastoid muscles;

(c) right leg - hamstring and gastrocnemius/soleus muscle injuries with ongoing pain and tenderness;

(d) left knee - pain and swelling, potential ligamentous or meniscal damage, and

(e) lumbar spine - right-sided lower back pain with radiculopathy.

1. Medical Assessor Assem took the following history from the claimant:

(a) she last worked in 2010;

(b) she had type 2 diabetes and psoriasis but denied any previous musculoskeletal injuries, accidents or complaints;

(c) she then conceded a workplace fall in 2009 or 2010 with right leg and lower back symptoms but said that she recovered within a year;

(d) the Medical Assessor then put to her a history in the notes about lower back pain radiating to the right leg and knee osteoarthritis. The claimant said this was controlled by acupuncture;

(e) the accident occurred on her way home from a gym session and she was driving to meet her husband when she was involved in a rear end collision after the at-fault driver had hit another car first;

(f) the claimant said she was thrown forward and upward striking her head on the roof of the car. She reported losing consciousness briefly. An ambulance was said not to have attended due to traffic congestion. The claimant's husband was contacted, and the claimant went home, and

(g) Ms Dao reported feeling dizzy but had no pain at the scene.

1. Medical Assessor Assem records that the day after the accident the claimant saw Dr Wang who reported headache and neck pain. He had no history of loss of consciousness. The Medical Assessor documents her early treatment and further complaints of left shoulder and then right leg symptoms and that on 5 December 2023 the notes indicate a new symptom in the knee. The claimant then reported left leg pain and back discomfort. The claimant said she saw Dr Chan, rehabilitation physician, a psychologist Ms Michael and had acupuncture privately.
2. Ms Dao complained of constant discomfort in the neck to the left shoulder and left arm with numbness worse in the right than the left. She complained of symptoms in her hands impacting activities of daily living. She complained about lower back discomfort and pain radiating up her back and down into her legs. She alleged hamstring and calf pain associated with swelling and intense pain and that she is relying on her left leg with more pain and shrinking in muscle mass in that leg. The claimant reported taking Panadeine Forte, having physiotherapy and acupuncture at her own expense.
3. After an examination and consideration of the documents the Medical Assessor diagnosed:

(a) a whiplash injury to the neck without neurological deficits in a specific nerve root definition which is a soft tissue injury, and

(b) the lumbar spine and right leg symptoms were not mentioned until weeks after the accident and he expected if they were an issue they would have been mentioned earlier.

(a) the shoulder injury was not caused by the accident due to an absence of symptoms, no plausible mechanism for injury and the presence of age-related degenerative changes;

(b) no lower limb trauma occurred in the accident. Due to the delay in the emergence of symptoms, any symptoms in that area were not related to the accident;

(c) no relationship between the accident and the claimant's left knee hemarthrosis which emerged nine months after the accident, and

(d) there were no radicular symptoms or neurological signs in the upper or lower limbs that would warrant a finding of cervical or lumbar radiculopathy.

1. The claimant notes at [7] that the Medical Assessor says the first mention of left shoulder pain was on 9 August 2023 in records of Switch physiotherapy. The claimant says at [14] there is an entry dated 21 July 2023 (a week after the accident) which records "left shoulder pain" since the accident and that the claimant had "asymmetrically restricted movement in the left shoulder" which has increased with time [18] and that this may be the normal expectation of an aggravation of pre-existing rotator cuff pathology [21].
2. The claimant also suggests the mechanism of accident (the claimant hitting her head on the roof of the car) suggests significant force [26] and that if she was holding the steering wheel with her left hand at the time, this could be a plausible mechanism for injury [27].

1. The insurer argued that the Medical Assessor gave clear reasons for his finding of left shoulder non-injury.
2. The insurer submits that the Medical Assessor does not have to list all the documents he has read or considered and is entitled to use "his entire gamut of skills" to arrive at a decision.

Original assessment and insurer decision making

1. In the claimant's bundle of documents was a request made on 10 July 2024[6] by the claimant to the insurer to conduct an internal review noting a left shoulder ultrasound of 7 March 2024 identified a 9 x 6 mm partial tear of the articular surface of the supraspinatus which the claimant says is not a threshold injury.
2. The insurer's internal review decision of 18 July 2024[7] acknowledged the radiological finding but denied the partial tear was caused by the accident noting shoulder pain was not mentioned in the claim form and if the claimant had sustained a tear in the accident she would have felt it and reported it to her doctors and included it in her claim form.
3. The insurer dealt with the other physical injuries and the psychological injuries in that decision.
4. In the original submissions lodged with the application for medical assessment, the insurer submitted:

(a) the claimant said in her claim form she has a "sore head and neck" [12];

(b) the claimant did not present at hospital [13], ambulance and police were not called to the accident scene [14];

(c) the claimant identified in the application for medical assessment, injuries to the left shoulder, cervical and lumbar spine, right leg and left knee [18];

(d) Dr Wang in the early certificates of capacity diagnosed a headache, right leg pain and neck injury and on 21 April 2024 he reported the claimant did not have a knee injury but due to right knee pain she was using her left leg and had left knee pain [19]. In a certificate dated 12 May 2024, Dr Wang refers to headache, right leg pain, neck pain and posttraumatic stress disorder [20];

(e) an Allied Health Recovery Request (AHRR) dated 9 August 2023 raised left shoulder and thoracic spine pain and lumbar spine radiculopathy [21];

(f) a referral letter of 10 August 2023 to a psychologist, and on 18 January 2024 to a physiotherapist, included a reference to a pre-existing condition of neuropathic pain [22] and [27];

(g) a left shoulder ultrasound of 7 March 2024 reported a partial tear of the supraspinatus along with tendinosis and bursitis [29];

(h) an MRI of the left knee showed haemoarthrosis, possible ligamental injury and suggested an MRI [31] and the Royal Prince Alfred Hospital (RPAH) discharge summary of 20 April 2024 reported a presentation for left knee pain and swelling showing "a large joint effusion" and the diagnosis referred to "OA flare" and the hospital had noted a history of bilateral knee arthritis, and

(i) pre-accident records indicated a history of lower back pain radiating to the right leg, a fall was reported in August 2024 (likely meant to be a reference to 2023) and the claimant had right leg pain [35].

1. The insurer says the left shoulder was not mentioned in the claim form, was not mentioned until an AHRR of August 2023 and was not imaged until March 2024. The insurer says the partial tear discovered eight months after the accident was not caused or aggravated by the accident.
2. In terms of the cervical spine, the insurer acknowledges early complaints of neck pain but notes there is no imaging and the claimant's treating doctors have referred to whiplash and says there are no reports of any of the signs of radiculopathy. As for the lumbar spine the insurer notes the claim form does not mention a lower back injury and that the first mention occurs in an AHRR of August 2023. Again, the insurer notes the absence of radiology and pre-existing neuropathic pain but says there is no evidence of any sign of radiculopathy.
3. The insurer addresses the claimant's right leg and left knee pain noting there is no mention in the claim form or any of the early certificates of capacity. The claimant had pre-existing osteoarthritis, and any left knee injury is not caused by the accident and there is no evidence of the complete or partial rupture of tissue in the right leg.

1. On 2 September 2025 the Panel issued directions to the parties for bundles of documents. The claimant's bundle was due on 22 September 2025 and was uploaded to the portal on

10 October 2025 comprising 241 pages. The insurer's bundle was due on 7 October 2025 and a bundle comprising 28 pages only was uploaded on 2 October 2025. 2. The Panel met on 21 October 2025 and reported to the parties the next day. 3. Noting the submissions from the parties focussed primarily on a left shoulder injury, the Panel directed the claimant to advise whether she maintained an allegation that her neck, right leg and left knee injuries were not threshold injuries. The parties were invited to make any final submissions and were advised of the re-examination date. 4. On 24 October 2025 the claimant's legal representatives advised that the claimant conceded her right leg and left knee injury were threshold injuries. 5. On 3 November 2025 the insurer responded advising it had no further documentation or information to put before the Panel. No additional documents were uploaded by either party. 6. The claimant attended the re-examination with Medical Assessor Oates and the Panel reconvened on 8 December 2025 to discuss his findings, determine causation and finalise the Review.

1. The claimant's application for personal injury benefits (claim form) was dated 19 July 2023[8]. The claimant denied making any previous claim in relation to a motor accident and in answer to the question about whether she had "an illness or injury affecting the same or similar parts of your body at the time of the accident" she said she had a sore head and sore neck on

13 July 2023. 2. The claimant's description of the injuries received in the current accident was "sore head, sore neck." The Panel notes there is no mention of injury to either shoulder at this time and no mention of any back, knee or leg injury.

1. The insurer provided two rehabilitation progress reports. The first is dated 21 February 2024. Goals had been set for the claimant to return to her hobbies of working out in the gym, swimming and volunteer work; a return to independence in domestic duties, and a return to preinjury driving.
2. The author of the report noted the claimant had made minimal improvement and she was reporting ongoing pain and that psychological symptoms were prolonging recovery.
3. The second report was dated 25 September 2024 with the same goals identified. Limited progress had been made.

1. Dr Wang's pre accident GP records commence on 27 May 2021. Most attendances relate to vaccinations, wound care (for a burn on the right forearm) and psoriasis. Celebrex was first recorded as prescribed on 19 November 2022 but there are no reasons why this medication was given. The Medical Assessors note that Celebrex is a nonsteroidal anti-inflammatory drug (NSAID) most frequently used to treat mild to moderate pain and help relieve symptoms, such as inflammation, swelling, stiffness, and joint pain arising from arthritic conditions.
2. On 23 March 2023 the claimant attended with lower back pain radiating to her right leg. On 28 April 2023 the claimant attended with a left finger issue. Celebrex was prescribed amongst other medications.
3. The claimant saw her GP Dr Wang on 14 July 2023[9] and he completed a certificate of fitness and capacity on that day. He diagnosed "headache and neck pain following MVA." He recommended physiotherapy and rehabilitation. The clinical notes mention only neck pain and headache. On 23 July 2023 he reviewed the claimant and noted the same diagnosis. On 10 August 2023 a further certificate of fitness was issued with again the same injuries noted but the doctor also records right sided neck and shoulder pain and depression. On

20 August, 3 and 28 September 2023 further certificates were given noting neck and shoulder pain. On 26 October, 23 November and 21 December 2023 while the claimant's injuries were still noted as "headache and neck pain", Dr Wang included "still having neck, leg and shoulder pain." Similar certificates were issued on 7 January 2024, 18 January 2024 and 2 February 2024. On 15 February 2024 the diagnosis was changed to "headache, right leg pain and neck pain following MVA" and the treatment plan included exercise physiology and a referral to Dr Chan for leg pain. On 18 April 2024 a certificate of fitness diagnosed headache, right leg pain and neck pain as before but also notes "complains of left knee pain, limping when walking." 4. The Panel notes that in none of these certificates is there a mention of back pain. 5. The claimant relies on an AHRR form dated 9 August 2023 from the claimant's physiotherapist, Mr Newbury of Switch physiotherapy who requested seven sessions of physiotherapy from the insurer. This request includes the following:

(a) a diagnosis of whiplash, concussion, left shoulder pain, mid-back pain (thoracic spine) as well as right sided lumbar spine radiculopathy;

(b) he says the claimant was referred by Dr Wang and he has liaised with him and that all these injuries are consistent with Dr Wang's diagnosis;

(c) the claimant reported continued pain in her lower back and down her right leg as well as pain in her neck and left shoulder. The claimant was experiencing memory loss and confusion and had forgotten one appointment;

(d) the claimant said she was unable to go to the gym since the accident and could not cook or clean and was lethargic;

(e) the claimant was retired, and

(f) the claimant was in the acute phase of injury with significant restrictions.

1. A second AHRR was completed by Mr Giovannone of Switch physiotherapy on

4 October 2023. While similar comments were made the physiotherapist noted the claimant's exercise tolerance and symptoms had improved with weekly hydrotherapy. A further eight sessions were requested. 2. In the third AHRR completed by Mr Newbury and also dated 4 October 2023 the claimant reported continued (but improved) pain in her left shoulder, lower back and right leg and resolution of the concussion symptoms. It was also noted that the claimant had "bilateral shoulder pain" when driving (from holding the steering wheel). 3. A further AHRR was completed by Mr Newbury and is dated 26 October 2023. The claimant reported ongoing improvement, but her leg pain was restricting her from getting out of lower chairs and cars and going on longer walks. 4. A fifth AHRR completed by Mr Newbury was dated 8 December 2023 and reported continued improvement with "pain her shoulder and lower back" improving but there was swelling and pain in the right knee. 5. Dr Wang's referral to Switch physiotherapy was dated 18 January 2024 and refers only to the claimant being under "CTP EP [exercise physiology] to help her recovery." There is no reference to any specific injury[10]. A referral to Dr Chan was written on 23 February 2024 for "review for pain management." An MRI of the left knee was requested on 21 April 2024 by Dr Wang. 6. A report has been provided by Mr Newbury dated 5 October 2023 to Dr Wang.[11] He says the claimant does not have concussive symptoms or headaches but does have ongoing right knee pain and swelling and "left shoulder / neck pain" and lower back pain. He notes the claimant's flexion was restricted on the left to 120 degrees and on the right to 150 degrees. Abduction was also restricted on the left to 100 degrees and to the right 150 degrees (normal for both flexion and abduction is 180 degrees). 7. The physiotherapy notes include a pain diagram dated 21 July 2023. The parts of the body circled or marked in red are the front of the head (eyes), the back of the head (neck), tops of both shoulders and the upper thoracic spine. Importantly the Panel notes no back pain, and no leg pain is indicated. The notes do refer to left shoulder pain. On 25 July 2023 the physiotherapist records a sore lower back with pain shooting down the right leg which "looks more swollen and bigger." The physiotherapist's notes indicate treatment was provided for the neck and shoulders, but the Medical Assessors cannot see that any treatment was provided to the lower back. 8. The physiotherapist's notes on 19 and 21 and 28 September 2023 record that the right leg was better, and she had no headaches but that her left shoulder and neck was her worst pain. 9. A case conference was held on 31 October 2023[12] at which the claimant reported left leg pain and she was limping when walking and that because of this her back was becoming painful and the left side of her neck was painful. 10. Similar comments were made on 6 and 28 November 2023 with case conference notes expressing concern about a swollen right leg. On 11 December 2023 the right leg was better "but still getting right knee pain." 11. Dr Chan wrote to Dr Wang on 29 February 2024.[13] He records complaints of neck pain, left shoulder pain and right leg pain. He attributes the neck and shoulder pain to the seat belt and that the right leg was hit inside the car. She also reported a big bruise on the dorsum of her right wrist. She went home and did not see the doctor until the neck day. He reports seven months of persisting neck pain, shoulder pain and right leg pain. He does not mention the lower back. 12. He has a history of the claimant's pre-accident medical condition but records no previous musculoskeletal issues. 13. On examination of there was mild left shoulder abduction with weakness and impingement. There were no neurological signs in the upper or lower limbs. Left shoulder flexion was restricted to 140 degrees and abduction 150 degrees. His impression was of a whiplash injury, left rotator cuff tendon injury, right hamstring and right calf injury. Dr Chan wrote a referral for the claimant to have counselling due to "chronic pain" and poor memory, anxiety and depression. 14. On 20 April 2024 the claimant attended RPAH due to left knee pain and swelling.[14] Sixty millilitres of "heavily blood stained synovial fluid" was drained from the knee. The claimant gave the following history:

(a) she injured her right knee in the car accident and saw Dr Needs, rheumatologist at RPAH;

(b) she was diagnosed by him with osteoarthritis in both knees;

(c) she lost weight and did exercises and was on Celebrex;

(d) she compensated by using her left knee more and her left knee developed more pain and swelling;

(e) she was able to walk on it but yesterday the pain was too great, she had weakness, and

(f) she denied any recent trauma to the left knee.

1. The Panel has not been taken to any reports or records from Dr Needs.
2. There is a single report from Professor Yue dated 15 May 2024 about the claimant's diabetes and liver function ("perfect levels"). He had a history of the accident and the left knee problem. He also has a history of pain from a whiplash injury in the neck. He records the claimant was prescribed Ozempic and has lost weight but she was worried about associated muscle wasting and so had reduced her Ozempic dose.
3. In the notes of the Sydney Psychology Services there is a reference to seeing a psychologist under workers compensation arising from the 2010 injury and also in 2013 as a private patient due to an injury of her left hand. She refers to her left leg being swollen from the car accident and that she had a large joint effusion with drainage.

1. The claimant had an ultrasound on 7 March 2024 with a clinical history noted as "pain and reduced range of movement in the shoulder. Hamstring and gastrocnemius muscle pathology".
2. In terms of the right shoulder, the long head of biceps, subscapularis and infraspinatus tendons were reported as normal but there was a 9 x 6 mm partial tear at the articular surface of the supraspinatus tendon and mild thickening of the subacromial/ subdeltoid bursa with impingement. The acromioclavicular joint was reported as normal. It was noted that the claimant complained of back pain which could have been spinal in origin and a lumbar spine CT was recommended.
3. No cervical or lumbar spine radiology has been put before the Panel.

1. Neither party has put before the Panel an independent report from a medico-legal expert of any specialty.
2. Medical Assessor Verma assessed the claimant's psychological or psychiatric injuries. She had been referred a posttraumatic stress disorder. Medical Assessor Verma noted some inconsistencies during the re-examination and that the claimant appeared to be reading out symptoms from a notebook.
3. The claimant reported chronic pain and leg cramps, forgetfulness, sleep disturbances and somatic symptoms such as dizziness and headaches. Medical Assessor Verma diagnosed an adjustment disorder as the claimant's mental state appeared to be dominated and caused by her reaction to pain. She discounted a post-traumatic stress disorder on the basis that the accident could not fulfil Criterion A.
4. Medical Assessor Verma determined that an adjustment disorder is a threshold injury in accordance with the Act and the Regulation.
5. The claimant lodged an application for review of this decision however the President's delegate declined the application.

RE-EXAMINATION FINDINGS - MEDICAL ASSESSOR OATES

1. The claimant attended the re-examination on 27 November 2025 at the Commission's medical suites. Ms Dao was examined by Medical Assessor Oates on behalf of the Review Panel. A Cantonese interpreter was present (and utilised) throughout the examination, and a female chaperone were present during the physical examination of the claimant.
2. Medical Assessor Oates notes the claimant was pleasant and co-operative throughout the re-examination.

Pre-accident medical history and relevant personal details

1. The claimant came to Australia as a Vietnamese refugee in 1980. She had worked in quality assurance in various pharmaceutical companies and then in the food industry. Her last place of employment was at Real Food as a quality assurance inspector for three years.
2. Ms Dao is 70 years of age.
3. She has a history of type 2 diabetes mellitus treated with Diabex and insulin, and also psoriasis with psoriatic arthritis. She has a weekly injection for the psoriasis. She takes medication for high blood pressure and high cholesterol.
4. Ms Dao says she has had no operations.
5. She did provide details of a workplace injury in 2010 causing low back pain which radiated to the right leg. She had a period on light duties and then her employment was terminated. She underwent physiotherapy and acupuncture, and she says her symptoms eventually resolved completely. She returned to the workforce about one year later to a different position as a casual in a quality assurance job.
6. She subsequently did TAFE courses in aged care and social work, and then went into voluntary work and this continues. When I asked about her source of income, noting she does not do any paid work, she said her husband still works in administration for an insurance company and supports her financially. Their three adult offspring live separately.
7. A clinical record from 23 March 2023 referred to neuropathic pain in the lower back radiating into the right leg. Ms Dao did not recall this, but she did not dispute the accuracy of the GP's entry. She said she has had previous symptomatic knee osteoarthritis on both sides which she said she managed by acupuncture.
8. She says that since the accident, she has had to hire a cleaner to look after the family five-bedroom, three-bathroom, single level home. Her husband has always mowed the front lawn, and he continues this. She had a herb garden in the backyard but now she can no longer kneel and bend over to tend this garden.

1. Ms Dao said that on 13 July 2023 she had been to the gym and was driving to meet her husband at Miranda. She was stationary in heavy traffic when she was rear-ended by a vehicle. This offending vehicle had initially collided with another car in a lane adjacent to hers, before bouncing off that first car and striking the rear of her stationary vehicle.
2. She said her car was pushed upwards by the impact, but there was no secondary impact with a vehicle in front, as the traffic in front of her had moved on. In the impact, she says she struck her head on the roof of the vehicle and briefly lost consciousness. She then described a "whiplash" movement to her neck.
3. Other motorists helped her out of the vehicle through the driver's door, and they moved her car to the side of the road to clear the way for traffic.
4. Someone called an ambulance, but Ms Dao said it could not attend due to local road congestion in Miranda. Witnesses then used her mobile phone to call her husband. He in turn called her brother, and they arrived at the scene and her brother suggested she go to his home. Her vehicle was towed away as it was unsafe to drive. It was later repaired. Her husband sold it at some stage later on.
5. Ms Dao was clear in answer to my questions that she did not have any pain at the time of the accident but did feel shocked and dizzy for a while afterwards.

History of symptoms and treatment following the motor accident

1. As Ms Dao was concerned about her health, she said she went to her GP, Dr Wang at Hurstville at the Healthpac Medical Centre, on 14 July 2023. She was not able to recall, when I asked her, what areas of pain were present at first, but then said her left shoulder, back and neck.
2. I asked her about Dr Wang's first clinic entry, which said she had not experienced a loss of consciousness, and she said that this was incorrect as she was sure she had had some loss of consciousness. The notes also said there was no evidence of haematoma on the head and there was no localised tenderness in the neck. I pointed out there was no record of any back pain. The claimant then said she could not recall with any clarity what areas of her body she complained of to Dr Wang. I note Dr Wang's initial clinical findings were also recorded in the certificates issued on 14 July and 10 August 2023 after further consultations.
3. I asked her how she thought she had injured her left shoulder, and she said she thought it was injured from the force of the seatbelt. When I pointed out to her that the seatbelt crosses over her right shoulder, not the left shoulder, and she then said she must have jolted the left shoulder somehow, but she said she could not recall doing this. I asked her if there was any visible bruising anywhere after the accident in particular over her shoulders or chest and she said 'no'.
4. Ms Dao saw Mr Newbury, physiotherapist, for the first time on 21 July 2023 on referral from Dr Wang. The referral only mentioned neck and headache. A body pictogram attached to his records showed shading to the head and neck radiating to both trapezii, and thoracic symptoms towards the right scapula. I asked her about this and showed her the picture, and she said she believed that her neck pain radiated to the trapezii to both sides and then to the left shoulder and into the left upper arm. She said that the neck and left shoulder were not two discrete sites of pain, but all her pains were connected to her neck. She denied any right shoulder joint or arm pain and confirmed no lower back pain was indicated on the diagram.
5. The physiotherapist's record from 21 July 2023 noted range of movement of the left shoulder in flexion to 140° with pain 7/10, compared with 150° on the right, and abduction on the left 90° with pain 7/10, compared with 150° on the right. There was pain on neck rotation, extension and flexion, and on thoracic rotation bilaterally with pain. Upper limb neural tension tests, were said to be not applicable "time-wise". I assume this means time did not allow the physiotherapist to perform this test.
6. The first report of lower back pain was on 25 July 2023 when the claimant complained to her physiotherapist of lower back pain, right leg shooting pain and the right leg looking swollen and bigger. I asked the claimant about the absence of low back pain at the first physiotherapy visit and she says she thought she did tell the therapist about the lower back pain, but he told her the neck and shoulder were the most important parts to treat.
7. She says she attended the physiotherapist for more than six months and then did exercises, and she also had hydrotherapy for about six months, which she thought helped with her improving the left shoulder range of movement. In addition, she attended a traditional Chinese medicine doctor for acupuncture and herbal treatment, which was self-funded. She said she had paid the physiotherapist extra to accompany her to gymnasium sessions.
8. In summary, Ms Dao said that the symptoms from the accident were headaches, neck pain radiating to the left trapezius and shoulder, thoracic pain and low back pain radiating to the right leg. She said that no other body parts were injured. In particular she confirmed her left knee was not directly injured in the accident and that her right leg pain comes from her lower back.
9. She said that at her insistence, because of the failure of the neck and left shoulder and right leg pain to resolve, she asked for a second opinion and Dr Wang, referred her to Dr Chan, rehabilitation physician, whom she saw on 29 February 2024 complaining of ongoing pain in the neck to the left shoulder, and right thigh pain. She said there was no further incident of exacerbation or aggravation prompting this referral. Dr Chan sent her for an ultrasound of the left shoulder, right thigh and leg. She confirmed he did not investigate her lower back.
10. I asked her why she thought Dr Wang had not send her for investigations before this and she says she did not know why, which is why she asked for a second opinion. Ms Dao said the insurer would not pay for the consultation with Dr Chan, so she only saw him once.
11. The left shoulder, right thigh and leg ultrasound ordered by Dr Chan, showed a 9 x 6mm partial tear at the articular surface of the supraspinatus tendon and also tendinosis, and mild thickening of the subacromial / subdeltoid bursa with impingement at 100° of abduction. The reason for referral had been pain and reduced range of movement in the shoulder. Ms Dao said that a steroid injection was offered into the bursa for pain relief if the pain did not settle by conservative means but she has not pursued this.
12. The ultrasound of the right hamstring and calf showed no muscle tear in these areas and no muscle oedema, and therefore no cause of pain was found in the posterior leg muscles. The radiologist commented that the patient also complained of some back pain and the pain in the right leg could be spinal in origin, and a lumbar spine CT scan was recommended for further evaluation, but Ms Dao said she did not have this.
13. On 20 April 2024, Ms Dao presented to the emergency department at RPAH with acute swelling and pain in the left knee. She said there was no incident to cause this. The condition was diagnosed as haemoarthrosis with large joint effusion in the knee and she was advised this was considered to be a flare-up of underlying osteoarthritis. She said she thought this could have been caused by increased load bearing on her left leg due to continued pain in her lower back and right leg. Joint aspiration was performed.
14. The claimant said she had an MRI scan done in April 2024. This report was not available to the Panel, and the claimant did not bring the scan to the re-examination.
15. After the visit to the RPAH, she had follow-up with Dr Needs, rheumatologist, whom she still sees every six months. He also referred her on to a dermatologist at RPAH.
16. When I asked her if she had any further treatment for the left shoulder condition, such as the cortisone injection suggested by the radiologist, she said 'no', saying that her hospital specialists had said to "leave it to the insurer".
17. She did not feel confident to drive after the accident for almost 12 months. She would wake at night with a fright after the accident. Because of her sleep problems, she saw a psychologist for counselling and also attended acupuncture and took Chinese medicine. She could not recall how long she attended the psychologist.

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

1. She said she has had no further accidents or injuries or relevant conditions develop.

1. Ms Dao says her worst problem is neck pain radiating to the left trapezius and shoulder, and daily occipital headaches. She applies Japanese liniment oil and takes Panadeine Forte on a daily basis.
2. She also has right thigh, hamstring and calf soreness and some backache, and she applies medicinal patches to the lower back. She applies these most days, especially if she has to go out somewhere.
3. At home, she will cook some rice, but her cleaner, who comes once a week for four hours, helps with some of the food preparation and cleans the bathrooms and bedrooms.
4. She still has sleep disturbance. She had seen a psychologist.

1. Ms Dao says she takes Crestor, Diabex, Mixtard insulin, Ozempic, Prexum (anti-hypertensive) 2.5mg in the morning, Valium 5mg at night, Norflex 100mg twice daily, Arcoxia (NSAID) 60mg at night, Celebrex (NSAID) 200mg per day and she has a Cosentyl injection once a week (for psoriatic arthritis). She has Ostelin Vitamin D and Calcium. She takes Panadeine Forte on an as need basis.
2. She attends respectively a physiotherapist, chiropractor, acupuncturist and a remedial masseur on a weekly alternating basis, all of which is self-funded, because she says of ongoing neck and left shoulder pain.
3. She remains under the care of Dr Wang, at Hurstville.
4. She sees Dr Needs, rheumatologist for the psoriatic arthritis, Dr Yue the diabetic specialist, six-monthly, and a dermatologist for psoriasis six-monthly. I note the Panel has not been provided with any documents from these specialists (apart from one report from Dr Yue).

1. Ms Dao was right hand dominant. She had an unsteady gait. She was unsteady during transfers on and off the examination couch. She said she felt dizzy when I was testing shoulder range of movement.
2. Her height was 159cm and her weight 60.6kg.
3. There were no nail or hair changes on the hands or feet. There were Heberden's nodes on the interphalangeal joints of the fingers, which in my clinical experience are consistent with primary generalised osteoarthrosis.
4. There was some mild crusting of the scalp, which in my clinical experience appears to be the result of psoriatic dermatitis. There was no scaling of skin on the elbow or knee joint prominences, which can also be seen in patients with psoriasis.
5. There was no visible change of arthritic deformity in the large joints of the body.

1. There was no tenderness, spasm or guarding.
2. Flexion and extension were full range. Rotation was two-thirds of normal bilaterally. Lateral flexion to the right was three-quarters and to the left was full range.
3. Reflexes, power and sensation were normal in the upper limbs. There was no evidence of muscle atrophy in the upper arm with girth measured at 25cm on both sides at a point 10cm above the elbow crease. In the forearm, girth was measured on both sides at 22cm, 5cm below the elbow crease.

1. There was a prominent upper thoracic kyphosis, which in my clinical appearance appears to be secondary to some osteoporosis.
2. Thoracic rotation was two-thirds of normal bilaterally. There was no spasm, tenderness or guarding. Sensation over the trunk was intact.
3. In the lumbar spine, flexion and extension were both two-thirds of normal with pain complaints in the lower back on recovery from flexion. Lateral flexion was two-thirds of normal bilaterally.
4. Power and sensation in the lower limbs were normal. Reflexes were symmetrical in the knee jerks and medial hamstring jerks, however both ankle jerks were absent even with reinforcement and when checked in the kneeling position.
5. In terms of muscle atrophy, I measured:

(a) thigh girth; right 38cm, left 36.5cm at 10cm above the patella, and

(b) calf girth; right 33cm, left 31cm at 13cm below the patella which was the point of maximal girth of the calf.

1. Straight leg raising was to 70° bilaterally with negative sciatic nerve tension test.

1. Active range of motion was measured with a goniometer and are reported in the table below in degrees. All movements were consistent across three repetitions other than left flexion and left abduction.

1. The right (allegedly uninjured) shoulder demonstrated restricted range of motion in keeping with the claimant's age and her pre-existing medical conditions.

1. Active range of motion was measured with a goniometer and was somewhat improved from when Medical Assessor Assem examined the claimant. There was some crepitus in both knees and complaint of discomfort on patellofemoral compression but there was no instability in either knee.

1. I asked the claimant about the fact that Medical Assessor Assem recorded abduction in the left shoulder to 130° which was a greater range of motion than demonstrated to me and she said she could not recall that this was the case but that any difference in range of motion was due to her fluctuating pain levels.
2. There was inconsistency in the three recorded measurements of active range of movement in flexion and abduction of the left shoulder. The claimant said this was due to pain felt in that area and the neck on active elevation of the joint.

1. The claimant brought with her the imaging studies of the ultrasound left shoulder and right leg.
2. I looked at the films and agreed with the report from radiologist, indicating a partial tear of supraspinatus tendon with tendinosis, and some bursal thickening with impingement at 100° abduction, but that the right hamstring and calf ultrasound were normal.

1. The claimant accepted in correspondence lodged with the Commission that her right leg and left knee injuries are threshold injuries.
2. The Medical Assessors' diagnosis of the left knee condition is a spontaneous hemarthrosis as a manifestation of an arthritic process. There was no history or evidence of a precipitating traumatic event, but the claimant accepted she had a pre-accident history of bilateral osteoarthritis which she had treated with acupuncture. The left knee was not mentioned in the original medical documentation or the claim form and Ms Dao denied to Medical Assessor Oates sustaining a direct injury to her knee in the accident. The Medical Assessors consider the claimant's concession is an appropriate concession and that injury will not be considered further.
3. The claimant also conceded that any injury to her right leg was also a threshold injury. The Panel notes the claimant's history given to Medical Assessor Oates was that her right leg symptoms were related to her back injury. It is the Medical Assessors' clinical judgment that the right leg complaints should be diagnosed as symptoms which are not indicative of a frank or specific right leg injury but which are most likely referred from the lumbar spine. The claimant's concession is therefore an appropriate concession.

Causation and diagnosis of the neck, thoracolumbar spine and left shoulder

1. The test of causation is twofold. The first element is whether the accident could have caused or contributed to a neck, thoracolumbar spine and left shoulder injury.
2. The Medical Assessors note the claimant's history of an upward motion and that the claimant said she hit her head on the roof and sustained a whiplash injury from rear impact. It is the clinical judgment of the Medical Assessors that the rear impact could have caused an injury to the claimant's neck which has led to symptoms in the shoulders. The Medical Assessors are, in their clinical judgment, not satisfied that a properly worn and functioning seat belt could have led to the claimant hitting her head on the roof of the car but in the absence of any biomechanical evidence are not prepared to make that finding and accept there was some upward motion of the claimant's body in the car.
3. The Medical Assessors are of the view that a rear end collision would be an unlikely cause of lumbar injury, because of the supportive and stabilising effect of the seat belt and the seat structure itself however the Panel notes the claimant's degenerative spine and earlier lower back injury and is of the view the claimant's lumbar spine was vulnerable to further injury.
4. The second element of the test requires a factual finding that the accident did cause or contribute to neck, thoracolumbar and left shoulder injury. Each of the alleged injuries will be considered in turn.

1. The Panel is satisfied that the accident did cause an injury to the cervical spine, as the neck was mentioned in the claim form of 19 July 2023, the Medical Certificate completed by her GP on 14 July 2023, the physiotherapy clinical note of 21 July 2023, and the first AHRR dated 9 August 2023.
2. The Medical Assessors' diagnosis is a soft tissue injury to the cervical spine with radiating pain symptoms to the adjacent upper trapezii and into the left shoulder and left upper arm as explained by the claimant to Medical Assessor Oates at the re-examination.
3. Clause 5.8 identifies five signs of radiculopathy as follows:

(a) loss or asymmetry of reflexes (see Table 6.8 in the Guidelines);

(b) positive sciatic nerve root tension signs(see Table 6.8 in the Guidelines);

(c) muscle atrophy and/or decreased limb circumference (see Table 6.8 in the Guidelines);

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

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

1. There was no evidence of radiculopathy in the cervical spine according to Dr Chan, and no evidence of any of the five signs radiculopathy in the examinations of the original Medical Assessor or the Medical Assessor on behalf of the Medical Review Panel. Radiating pain from the neck into the arms and shoulders is not one of the five signs required by cl 5.8 of the Guidelines, two of which are required for a diagnosis of radiculopathy.

1. Left shoulder pain is referred to in the physiotherapy records and on the pictogram of

21 July 2023 and the AHRR of 9 August 2023. 2. The claimant told Medical Assessor Oates that she thought the seatbelt had caused an injury to the left shoulder. This is also a feature of the history given by Ms Dao to Dr Chan, but this is, in the clinical judgment of the Medical Assessors on the Panel medically implausible, because of the placement of the sash over the right shoulder. When this was pointed out to the claimant, she was not able to provide a satisfactory explanation of a mechanism from the accident to have caused a direct left shoulder joint injury. She later confirmed her view that her neck injury was causing symptoms over both shoulders and into the left arm. It is the Medical Assessor's clinical opinion that a fair reading of the physiotherapist's notes supports this view of the origin of the left shoulder symptoms. 3. If the GP (or physiotherapist) had suspected there was a frank or discrete left shoulder injury separate from referred symptoms from the cervical spine, the Medical Assessors are of the view that this would have prompted a request for imaging in the form of most likely ultrasound scan or possibly MRI scan, long before it was eventually ordered by Dr Chan and performed on 7 March 2024, eight months after the accident. 4. Therefore, the Panel disagrees with Dr Chan's diagnosis of a left shoulder rotator cuff tear being related to the accident. The partial supraspinatus tear is considered to be an unrelated incidental finding reflective of the claimant's age. While the Panel accepts the claimant has left shoulder symptoms, the Panel is of the view these symptoms are caused by the claimant's neck injury.

1. The claimant conceded an earlier lower back injury manifesting in right lower limb radiating pain which was the subject of a GP visit on 23 March 2023. The claimant did not recall this but did not dispute the accuracy of her GP's notes.
2. A case could be made for not accepting a causal link to the accident, as lower back complaints were not included in the claim form, nor in the GP's note and the Medical Certificate dated 14 July 2023. It is also not included in other Certificates of Fitness, and it is not indicated on the first attendance at the physiotherapist or the body pictogram as being symptomatic. The delay in reports of lower back pain would then suggest that the accident was not a cause of soft tissue injury or aggravation of a pre-existing condition but rather the pre-existing condition was following its usual pattern of intermittent symptoms.
3. The Panel however accepts the accident caused a lumbar spine injury, as lumbar pain is mentioned in the physiotherapist's note of 25 July 2023 and it is mentioned in the AHRR of

9 August 2023. 4. There was no written record of any signs indicating radiculopathy in Dr Chan's report. Although the physiotherapist diagnosed "lumbar radiculopathy" in the notes of the visit of

9 August 2023, no neurological examination findings were included in the physiotherapy records or in the GP records to support this diagnosis. The Medical Assessors note that health and allied health practitioners will often consider radiating pain as being diagnostic of radiculopathy. There was no evidence of radiculopathy in the examination findings of the original Medical Assessor. 5. As stated in paragraph 142 above, cl 5.8 identifies five signs of radiculopathy. Radiating pain into the lower limbs such as Ms Dao's complaints of right lower limb pain, is not one of the five signs of radiculopathy. 6. The clinical examination of the claimant by Medical Assessor Oates revealed two potential signs of radiculopathy:

(a) the absence of reflexes - the Medical Assessors note that the claimant has been diagnosed with diabetes and the absence of reflexes in the extremities is a common symptom of diabetes (and peripheral nerve damage). Because there was an absence of reflexes on both sides and not just the right side, the Medical Assessors are, in the absence of the records and reports from the claimant's treating specialists not satisfied that this absence of reflexes is due to a lumbar nerve root injury, and

(b) wasting of muscles - the measurements obtained by Medical Assessor Oates indicate larger measurements on the right side which could indicate a left sided atrophy. The claimant's physiotherapist's notes and other records mention frequently the claimant's concerns about swollen limbs (not atrophied limbs). The claimant herself reported a swollen right leg to her physiotherapist on

25 July 2023 but on 2 August 2023 the mid-calf circumference in both legs was measured at 31cm. Medical Assessor Oates measured the claimant's left calf at 31 cm and the right at 33cm which indicates a swollen right leg rather than an atrophied left leg. The Panel is not satisfied that the difference in lower limb circumference is due to any nerve root injury causing muscle atrophy.

1. It is the clinical judgment of the Medical Assessors that the lumbar spine injury diagnosis is a soft tissue injury, being aggravation of a pre-existing symptomatic condition.

ARE THE CLAIMANT'S INJURIES THRESHOLD INJURIES?

1. It is the Panel's determination that the claimant's neck injury is a threshold injury because:

(a) there is no radiological or clinical evidence of the complete or partial rupture of any "tendons, ligaments, menisci or cartilage" in the neck, and

(b) there is no evidence of a nerve or nerve root injury manifesting in a finding of cervical radiculopathy at any time since the accident.

1. It is the Panel's determination that the claimant's thoracolumbar spine injury is a threshold injury because:

(a) there is no radiological or clinical evidence of the complete or partial rupture of any "tendons, ligaments, menisci or cartilage" in the thoracic or lumbar spine, and

(b) there is no evidence of a nerve or nerve root injury manifesting in a finding of thoracic or lumbar radiculopathy at any time since the accident.

1. While the partial tear of the supraspinatus tendon is a partial rupture of tendons within the meaning of the exclusion to the definition of soft tissue injury in s 1.4 of the MAI Act, the Panel is not satisfied (for the reasons given above) that the supraspinatus tear was caused by the accident. The claimant did not sustain a frank left shoulder injury but has shoulder symptoms related to her neck injury.

1. As the Panel has come to the same conclusion as Medical Assessor Assem, it follows that his certificate should be confirmed.

[2] Schedule 2, clause 2(e) in the MAI Act.

[3] Sections 7.20, 7.24 and 7.26 of the MAI Act.

[4] The numbers in square brackets are a reference to the section number in the Medical Assessor's reasons.

[5] The numbers in square brackets are a reference to the paragraph number in the submissions.

[12] Page 221 of the claimant's bundle.

[14] The discharge summary is at page 82 of the claimant's bundle.