Insurance Australia Limited trading as NRMA Insurance

MOTOR ACCIDENTS - Motor Accident Injuries Act, 2017; Medical Review Panel; lumbar spine; cervical spine; right shoulder; whole person impairment (WPI); inconsistency; causation; claimant suffered injury in a rear end collision on 1 June 2022; Medical Assessor (MA) certified 17% WPI for injury to lumbar spine; injury to cervical spine; injury to right shoulder; insurer sought review; Held - inconsistencies in presentation; Briggs v IAG Limited Trading as NRMA Insurance applied; claimant sustained injury to cervical spine, lumbar spine and SLAP lesion of the right shoulder caused by the accident; lumbar spine assessed as DRE category I or 0% WPI; cervical spine assessed as DRE category II or 5% WPI; due to inconsistency right shoulder assessed by analogy at 2% WPI; certificate of the original MA revoked, total assessed at 7% WPI.

Whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%

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

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

14 August 2025 and determines that the accident was a cause of the following injuries which give rise to a permanent impairment of 7%: * cervical spine - soft tissue injury; * lumbar spine - soft tissue injury, and * injury to the right shoulder - slap tear.

1. On 1 June 2022 Mr Hyo Gi Kang (the claimant) was stationary in his vehicle at a red traffic light behind a vehicle. The insured vehicle rear ended a third vehicle behind the claimant's vehicle which in turn rear-ended the claimant's vehicle causing his vehicle to rear-end the first vehicle (the accident).
2. Mr Kang has brought a claim for common law damages under the Motor Accident Injuries Act 2017 (the MAI Act).
3. Insurance Australia Limited trading as NRMA Insurance is the relevant insurer with liability to pay any damages to Mr Kang under the MAI Act.
4. Section 4.11 of the MAI Act provides that there is no entitlement to damages for

non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%. 5. This dispute is in relation to whether the degree of permanent impairment sustained by

Mr Kang as a result of the injury caused by the accident is greater than 10%. This constitutes a medical assessment matter pursuant to Schedule 2, cl 2 of the MAI Act. 6. A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[1] 7. The dispute as to permanent impairment in respect of the claimant's physical injuries was referred to Medical Assessor Shahzad. He issued a certificate dated 14 August 2025.

1. The Review Panel (Panel) issued a Direction to the parties on 10 November 2025 directing the parties to file an indexed and paginated bundle of all documents relied upon in the review.
2. On 26 November 2025 the insurer uploaded an indexed bundle of documents paginated from pages 1 to 336 (insurer's documents).
3. On 10 December 2025 the claimant uploaded an indexed bundle of documents paginated from pages 1 to 129 (claimant's documents).
4. On 19 January 2026 in response to the Second Direction to the parties dated

18 December 2025 the claimant uploaded an Application to Lodge Additional Documents with attachments (ALAD).

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 were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association's Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.[2]
3. Causation of injury is addressed under Part 6 of the Guidelines dealing with permanent impairment:

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

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

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

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

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

Certificate of Medical Assessor Wijetunga dated 24 August 2023

1. Medical Assessor Wijetunga certified that injuries to the left leg, left foot, left hip, right hip, cervical spine, right shoulder and chest were threshold injuries for the purpose of the MAI Act and the injury to the lumbar spine was not a threshold injury.[3]
2. Medical Assessor Wijetunga certified the injuries to the right and left knee and the pelvis were not caused by the accident.

1. A Medical Review Panel comprising Medical Assessor Berry, Medical Assessor Gibson and Member McTegg (First Review Panel) issued a certificate dated 27 February 2024 in which it revoked the certificate of Medical Assessor Wijetunga dated 24 August 2023.[4] The Medical Review Panel certified the following injuries caused by the accident were threshold injuries:
   • injury left leg, left hip, right hip - musculoligamentous injury of the lumbar spine;
   • cervical spine - whiplash associated disorder;
   • chest - soft tissue injury (now resolved), and
   • lumbar spine - soft tissue injury.
2. The First Review Panel certified the following injuries were not caused by the accident:
   • right or left knee, and
   • pelvis injury.
3. The First Review Panel certified the following injury was not a threshold injury:
   • injury to the right shoulder.
4. The First Review Panel noted the history of prior back pain and left sided sciatica. Given the MRI scan of 10 July 2020 prior to the accident, which demonstrated damage at the L4/5 level was unchanged at the time of the post-accident MRI scan of 10 August 2022, the First Review Panel concluded the annular tear and the changes shown on the MRI scan were pre-existing and not caused by the accident. The First Review Panel concluded signs of radiculopathy were present pre-accident and were not causally related to the accident. However, having regard to the consistent history of complaint post-accident and the opinion of Dr Lee that the accident caused new and extended symptoms the First Review Panel concluded the claimant had sustained a soft tissue injury to the lumbar spine in the accident.
5. The First Review Panel found no history of prior injury to the right shoulder. The First Review Panel noted whilst Dr Lee did not refer to the right shoulder in his certificate of capacity/certificate of fitness dated 2 June 2022 on a diagram dated 3 June 2022 he shaded each shoulder and reported "ROM (range of movement) with pain". The First Review Panel stated:

"The Panel notes there has been a consistent history of pain and restriction of movement following the accident and the MRI scan shows a SLAP lesion which is a superior labral tear. Whilst the MRI scan shows that the rotator cuff mechanism is intact the Panel finds the SLAP tear is in keeping with the claimant's symptoms and restriction of movement."

1. The First Review Panel concluded the claimant had sustained a SLAP tear of the right shoulder caused by the accident. This was not a threshold injury.

1. In a certificate dated 14 August 2025 Medical Assessor Shahzad certified the following injuries caused by the accident gave rise to a permanent impairment of 17%:
   • cervical spine - disc injury with nerve root contact;
   • lumbar spine - disc injury, and
   • shoulder - right shoulder slap tear.[5]
2. The injuries referred for assessment were as follows:
   • cervical spine - disc injury with nerve root contact - associated permanent impairment;
   • lumbar spine - disc injury - associated permanent impairment, and
   • shoulder - right shoulder slap tear - associated permanent impairment.

1. Medical Assessor Shahzad reported as the claimant's hands were on the steering wheel he braced himself at the moment of impact and immediately experienced pain in his right shoulder and neck, along with symptoms affecting his lower back and cervical spine.
2. On examination Medical Assessor Shahzad noted discomfort in multiple areas including shoulders, thoracic and lumbar spine, left thigh and shin. He also found a reduced range of motion in both shoulders with associated pain.
3. He assessed a 5% whole person impairment (WPI) on the basis the injury to the cervical spine met the criteria for DRE Cervical category II. He noted specific injury without radiculopathy or loss of motion segment integrity. He noted muscle guarding and rigidity present on examination.
4. Medical Assessor Shahzad assessed a 5% WPI of the lumbar spine on the basis the claimant fits the criteria for DRE Lumbar category II. He noted his findings were consistent with specific injury and clinical signs of lumbar spine injury were present with muscle guarding and rigidity present on examination. Whilst the claimant had pre-existing issues with his lumbar spine Medical Assessor Shahzad concluded he was asymptomatic at the time of the accident.
5. Using Chapter 3 of the AMA 4 Guides the range of motion method was used to assess permanent impairment of the right shoulder as follows:

1. Using figures 43, 44 and 45 on pages 38 to 44 of the AMA 4 Guides and table 3 on page 20 of the AMA 4 Guides Medical Assessor Shahzad assessed a 13% upper extremity impairment (UEI) or 8% WPI.
2. Combining the assessment Medical Assessor Shahzad assessed a 17% WPI.

1. The insurer has sought a review of the medical assessment of Medical Assessor Shahzad.
2. The application was lodged on 12 September 2025 within 28 days of the date on which the certificate of Medical Assessor Shahzad was made available to the parties.[6]
3. On 4 November 2025 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Panel.[7]
4. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[8]
5. The review is by way of a new assessment of all matters with which the medical assessment is concerned.
6. On 2 February 2026 the Panel agreed an examination was necessary.

1. The insurer provided submissions dated 12 September 2025 in support of the application for review.[9]
2. The insurer submits that Medical Assessor failed to address causation.
3. In relation to the right shoulder the insurer notes that Medical Assessor Shahzad diagnosed a right shoulder SLAP tear. However, he failed to address causation of the SLAP tear or the opinion of Dr McIntosh who opined that there was no mechanism for shoulder injury including a SLAP tear or rotator cuff injury in the accident.
4. In respect of the lumbar spine the insurer submits Medical Assessor Shahzad failed to specify what the disc injury was or how it was caused by the accident. The insurer refers to the analysis of causation contained in the earlier Medical Review Panel certificate including the review of the MRI scans of 10 July 2020 and 10 August 2022. The insurer notes Medical Assessor Shahzad fails to comment on the findings of the MRI scans or to address causation in accordance with cls 6.5 to 6.7 of the Guidelines. It is also submitted that Medical Assessor Shahzad failed to address the findings of Dr McIntosh who concluded that soft tissue injury or aggravation of symptoms of a pre-existing musculoskeletal disorder is not consistent with the likely biomechanical forces in the accident.
5. In relation to the cervical spine the insurer noted Medical Assessor Shahzad found the claimant sustained disc injury with nerve root contact. He also found there was no radiculopathy or loss of motion segment integrity. The insurer queries how Medical Assessor Shahzad was able to conclude the claimant had a disc injury with nerve root contact in the absence of radiculopathy. The insurer also submits Medical Assessor Shahzad failed to address causation where he did not explain how the claimant's cervical spine was caused by the accident. He also failed to address the opinion of Dr McIntosh who concluded structural injury, namely an intervertebral disc injury to the spine is not consistent with the biomechanical forces in the accident.
6. The insurer provided submissions dated 6 June 2025 in respect of the permanent impairment dispute.[10]
7. The insurer noted the pre-existing history of lower back injury and the prior motor vehicle accident in March 2020. In particular the insurer noted:
   • Dr Kwak noted reduced sensation on left L4 and L5 in October 2019;
   • on 6 December 2019 Dr Kwak recorded a "history of back pain on and off 10/7 back pain". He reported tingling in the left sciatic distribution and backs spasms whilst mowing. He referred the claimant to Dr Kwon Kang and requested a CT scan of the lumbar spine;
   • the results of the CT scan of the lumbar spine dated 6 December 2019;
   • on 27 March 2020 the claimant reported his involvement in a motor vehicle accident one week ago which "twigged" his back;
   • on 11 June 2020 Paul Monaro physiotherapy reported since 1 May 2020 the claimant had undergone eight treatments of his neck, lower back and left leg symptoms after the March 2020 accident with only temporary improvement;[11]
   • an MRI scan of the lumbar spine of 12 June 2020 demonstrated mild annular fissuring demonstrated at the lower four lumbar levels and early disc degeneration at L4/5 and L5/S1;
   • on 24 July 2020 Dr Kwak reported pain with limited range of movement;
   • the claimant underwent a CT guided left L5 perineural injection on

21 August 2020, and * on 21 February 2022 the claimant was stressed, collapsed at work and was taken to hospital for vestibular neuritis. 8. The insurer relies upon the decision of the First Review Panel to assert that the annular tear and the changes shown on the MRI scan of the lumbar spine were pre-existing and not caused by the accident. 9. The insurer relies upon a Collision and Biomechanical Report of Dr Andrew McIntosh dated 22 October 2024. Dr McIntosh reported that pre-existing injury is a risk factor in injury likelihood and symptom presentation following a low severity car crash. He opined the closing speed was likely less than 15 kmph and that the claimant's injuries were not consistent with what he considered to be the likely biomechanical forces in the accident. He concluded there was no mechanism for shoulder injury where there was no direct or indirect blunt force loading of the shoulders in the incident. He concluded there was a very low likelihood of soft tissue injury of the cervical spine within the crash severity of the collision. Further the thoraco-lumbar spine would have been well supported by the seat and seat belt and the loads applied to the spine would have been very low magnitude and unlikely to cause injury. 10. The insurer relies upon the opinion of Dr Machart who assessed 0% WPI as a result of the accident. He found a strong element of pain behaviour and even accepting there were injuries to the cervical and lumbar spine he concluded they would be soft tissue injuries and attract a 0% WPI.

1. The claimant provided submissions dated 21 May 2025 in support of the permanent impairment dispute.[12]
2. In respect of causation of the shoulder injury the claimant submits that the records of

Dr Lee of 3 June 2022 show that the shoulder is shaded as one of the body parts in which the claimant felt pain. Dr Lee also recorded restriction of motion. 3. Furthermore, consistent with the opinion of Dr Chieng the claimant submits that when he saw Dr Lee for a follow up review on 11 June 2022 his shoulder was listed as a body part in which he feels pain, and it was rated as 9 on a scale of 10. 4. The claimant submits that he began experiencing pain and a restricted range of motion in his right shoulder from right after the accident. The claimant submits the opinion of

Dr Herald should be preferred to the opinion of Dr Machart. 5. In relation to the cervical and lumbar spine the claimant submits the opinion of Dr Herald should be preferred to the opinion of Dr Machart. 6. In relation to the prior accident it is submitted the claimant had fully recovered and therefore should not be subject to a deduction for a pre-existing symptomatic permanent impairment. 7. When considering the report of Dr McIntosh, the claimant submits as per Insurance Australia Limited T/as NRMA Insurance v Mangogna the contents of that report must be weighed against the rest of the existing evidence.[13] 8. The claimant provided submissions dated 7 October 2024 in response to the insurer's application for review.[14] Those submissions address the question of whether Medical Assessor Shahzad was incorrect in a material respect in his certificate and do not address the substantive issue to be determined by the Panel.

1. In the application for personal injury benefits dated 3 June 2022 Mr Kang described the accident as follows:

"On the red light, [1], [2], [3] cars were stopped. Mine was [2] and there was [1] in front of mine, [3] was behind of mine. All the sudden, I felt my back part of car was hit and felt pain on my neck and back. Someone was knocking my door glass and that was driver of [4]. [4] didn't stop the car on red light, so [4] hit [3], then [3] hit mine and I hit [1]. The driver of [1] just left as he thought his car looked okay. I exchanged detail with [3] & [4]. Next day I felt worse on my neck and back. I contacted to my insurer to fix my car and met my GP."[15]

"I feel hard to move my neck. I feel pain on my back. I feel numbness in my hand."

1. The claimant consulted Dr Kyung-Hee Janet Kwak on 6 December 2019.[16] She reported as follows:

whilst driving - had tingling L sciatic distribution

1. On examination Dr Kwak did not detect any abnormalities on straight leg raising, she found normal sensation and concluded it was likely muscle spasm with underlying sciatica.
2. On 27 March 2020 Dr Kwak reported the claimant was a driver involved in a motor vehicle accident one week earlier when he was hit from behind.[17] He reported he twigged his back at the time.
3. On 3 April 2020 Dr Kwak reported Mr Kang had ongoing lower back pain and spasm radiating to the buttocks and to the hamstrings, worse on the left.[18] Dr Kwak reported range of movement was limited by pain.
4. In a report dated 11 June 2020 Paul Monaro of Concord Sport & Spine reported the claimant had attended his physiotherapy practice on 1 May 2020 and had eight sessions of treatment for his neck, lower back and left leg symptoms including numbness in the left foot after an accident on 30 March 2020.[19] Mr Monaro reported no change in the claimant's symptoms, and he still complained of numbness on the medial border of the right foot and low back discomfort.
5. On 12 June 2020 Dr Kwak reported Mr Kang had been undergoing physiotherapy twice a week for four weeks and had sciatica with bending, driving, sitting and persistent pain.[20]
6. Dr Kwak recording the following findings on examination on 12 June 2020 and on

1. The claimant had a CT Guided left L5 perineural steroid injection on 21 August 2020.
2. On 9 October 2020 Dr Kwak reported Mr Kang had ongoing paraesthesia from the left buttock to the toe and a reduced left ankle reflex.[21] She referred Mr Kang to the Royal Prince Alfred Hospital neurosurgery clinic.
3. Entries on 25 November 2020 and 11 December 2020 were for unrelated complaints.
4. On 16 February 2022 the claimant attended the emergency department of Royal Prince Alfred Hospital for acute vestibular syndrome (likely vestibular neuritis). [22]

1. The clinical records commence on 21 February 2019 and conclude on 24 February 2022. There are no entries relevant to the lumbar spine or right shoulder.

1. In a certificate of capacity/certificate of fitness dated 2 June 2022 Dr Hajeong Lee, GP diagnosed the following injuries:

"Neck/trapezius/Whole Back/R+L hip/pelvis/ anterior neck and upper chest/. Injuries to be further reviewed.

1. severe neck pain with left side SPURLING test positive, and decreased sensation on medial R forarm [sic].
2. back pain decreased sensation on left medial foot/leg and medial left lower leg, righ [sic] sole, weakness on left knee. SLUMP tst [sic] positive on left side."[23]
3. Dr Lee identified a history of previous lumbar disc pathology but noted the accident caused new and extended symptoms. He recommended physiotherapy and medication. Mr Kang was certified unfit for work until 9 June 2022.
4. On a diagram dated 3 June 2022 Dr Lee shaded areas to the clavicle, back of the neck, both shoulders at the back, thoracic and lumbar spine, left front thigh and left front shin and paraesthesia over the left and right feet and underneath the left foot.[24] There is a note saying the paraesthesia over the top of the left foot was old. Examination of the right and left shoulder notes "ROM with pain".
5. Mr Kang commenced physiotherapy with Kevin Oh of Rapid Therapy on 3 June 2022. The clinical notes show treatment of the left side of the neck and upper back and radiation down the L ULs (left upper limbs) and L LLs (left lower limbs). In the consultation on

16 November 2022 the additional notation appears "SLAP lesion MRI / R shoulder".[25] 6. On 11 June 2022 Dr Lee circled areas to the back and sides of the neck, the upper and lower thoracic spine and lumbar spine on a diagram.[26] 7. On 9 October 2022 Dr Kwak reported ongoing paraesthesia in the left buttock to the toe and lightly reduced left ankle reflex. He was referred to the Royal Prince Alfred Hospital Neurosurgical Clinic for review. 8. Dr Lee provided a report dated 6 May 2023. In relation to the cause of injury to the right shoulder he stated:

"- During the collision his right shoulder muscles must be suddenly and forcefully contracted against sudden relative movements between his body and the vehicle.

- This can torn labrum by pulled labrum (SLAP tear) forcefully [sic]

- He did not had any shoulder injuries prior to the accident

- His right shoulder injury was a direct cause of the motor vehicle accident

- On initial presentation on 2/6/22 he reported 'shoulder pains on a diagram provided and physical examination performed on the same day reported shoulder pains'( ...).

- In initial certificate these seems to be interpreted as trapezius pain and cervical radicular pathologies. Shoulder pains, trapezius pains and cervical radicular pains are often mimics each other."[27]

1. Dr Lee also stated the superior/anterior labral tear (SLAP) was a non-minor (threshold) injury where labrum are connecting and supporting structures of the shoulder and a partial tear of that structure, by definition, would be a non-minor (threshold) injury.

1. Mr Kang saw Dr Bak on 22 October 2022 on referral from Dr Lee. He reported:

"He was hit from behind whilst standing at a traffic light. He developed pain symptoms in his neck, shoulder girdle and back. He has been experiencing left forearm paraesthesia and some vague radicular symptoms in his left lower limb. He has ongoing left side lower back pain, neck pain and shoulder girdle pain symptoms."[28]

1. On examination Dr Bak reported the claimant's neck movements were normal but his spinal movements were limited due to pain. He reported there was no radicular feature present. He also reported shoulder movements were slightly limited due to pain symptoms. Dr Bak reported the MRI scan of the lumbosacral spine hadn't changed much since 2020 with disc changes at the levels of L4/5 and L5/S1. He recommended a CT guided injection at the level of C5/6.
2. Dr Bak reviewed the claimant on 25 February 2023.[29] He reported a minimal response to the cervical spinal injection. He noted Mr Kang was having physiotherapy. He suggested because of the chronic nature of the pain problem Mr Kang should be reviewed by a specialist pain clinic.

1. Mr Kang saw Dr Chien on 14 December 2022 in respect of his right shoulder.[30] He reported when the car was rear ended by another vehicle Mr Kang "had his hands on the steering wheel and braced himself with his arms. On impact he had immediate right shoulder and neck pain".
2. Dr Chien reported the MRI demonstrated a right supraspinatus tendinopathy and SLAP tear and right lateral epicondylitis. He felt the main symptoms were from the cuff tendinosis and less so the labral tear. He arranged a subacromial corticosteroid injection.
3. In relation to causation Dr Chien stated:

"... the sudden acceleration and deceleration of the vehicle and the forceful contraction of his shoulder muscles would have caused injury. The supraspinatus contraction causing tendinitis while forceful biceps contraction would have pulled the labrum causing the tear."

1. On 19 January 2023 the claimant underwent an ultrasound right shoulder injection.
2. Dr Chien reported to Littles Lawyers on 22 February 2023. He confirmed his earlier opinion that the mechanism of injury was consistent with the diagnosis, and he noted that prior to the accident Mr Kang did not have any symptoms in his shoulder and was fully functional. He further stated:

"Mr Kang has torn his right shoulder labrum. This is a specialized cartilage histologically similar to a meniscus. There are both made up for fibrocartilage. As per the definition of a 'minor injury', a torn meniscus or labrum does not fit in with a 'minor injury'.

Furthermore, Mr Kang also has rotator cuff tendinosis. Tendinosis. Tendinosis is basically small multiple tears of a tendon that cannot be clearly visualized as opposed to a full thickness tear. It is usually the precursor to a visible tear if it does not heal. Again, tendon tears do not count as 'minor injuries'".

1. Dr Chien reviewed Mr Kang on 17 May 2023.[31] He considered the labral tear and biceps tendinosis had worsened and become more symptomatic. He noted alternative modes of treatment had failed and recommended surgery.
2. On 12 June 2024 Dr Chieng reviewed the claimant.[32] He noted he had not undergone surgery, but his right shoulder and elbow symptoms had worsened whilst his right knee had improved. He recommended further investigations.
3. On 10 July 2024 Dr Chien reported the SLAP tear had worsened, now involving a larger portion of the labrum.[33] He also noted early osteoarthritis in the glenohumeral joint had developed as well. He recommended operative fixation of the labrum and stated the only alternative was to wait until the shoulder becomes severely arthritic and perform a total shoulder replacement, not ideal in someone under 70.

"At L4/5. A diffuse disc bulge combined with mild facet arthrosis leads to mild central canal narrowing and potential irritation of the descending L5 nerve roots. No further central canal narrowing is evidence and there is no definite evidence of neural impingement."[34]

Findings: Lumbar spine normal in alignment. No fracture or bony lesion is demonstrated. Conus terminates at L1. Conus and cauda equina are normal in appearance.

L2/3: Disc signal and height is maintained. There is subtle anterior annular fissuring with mild bone stress response. No posterior disc pathology or mechanical neural impingement.

L3/4: Disc signal and height is maintained. There is anterior annular fissuring with mild bone stress response. No posterior disc pathology is demonstrated. No foraminal or canal stenosis.

L4/5: Disc dehydration and mild concentric disc bulging. No focal disc protrusion is demonstrated. Mild anterior annular fissuring with mild bony stress response. Annular fissuring at L4/5 with disc bulge contacts the left L5 nerve root in the lateral recess. Mild bilateral foraminal stenosis and mild canal stenosis. Early right facet joint arthritis without bone stress or synovitis.

L5/S1: Mild loss of disc height. Mild posterior disc bulging. Central posterior annular tear without focal disc protrusion. No mechanical neural impingement is demonstrated. Early bilateral facet joint arthritis without synovitis or bone stress.

Conclusion: Mild annular fissuring demonstrated at the lower four lumbar levels. No focal disc protrusion. Early disc degeneration L4/5 and L5/S1.

Annular fissuring at L4/5 with disc bulge contracts the left L5 nerve root and would be a potential site of irritation as a cause for left sciatica...."[35]

MRI lumbar spine, 10 August 2022 incorrectly dated as 1 June 2022

"Technique: MRI assessment has been performed utilising sagittal T1, T2 STIR sagittal T2, T2 FS sequences on the 1.5 Tesla Siemens MRI unit.

Findings: Lumbar spine alignment shows mild reduced lordosis. Lower thoracic cord, conus medullaris and cauda equina nerve roots are normally distributed. No fracture or marrow contusion is seen.

Assessment of the individual disc levels shows at L1/2, L2/3 and L3/4 no disc protrusion or neural compression.

L4/5 shows disc dehydration. A small disc bulge is noted without neurocentral compression. There is mild foraminal stenosis. Left-sided extraforaminal annular tear is evident. Facet joints do show mild facet joint effusions.

L5/S1 shows disc desiccation and a small subligamentous disc bulge with posterocentral annular tear. No central canal compromise is seen. Exiting nerves pass freely. Facet joints are mildly arthritic.

No pars defects are seen and paraspinal soft tissues are normal.

Conclusion: MRI of the lumbar spine does demonstrate at L4/5, a broad-based disc bulge with a left extraforaminal annular tear. Mild foraminal stenosis is seen abutting but not deviating the existing L4 nerve roots. L5/S1 is desiccated with a posterocentral annual tear. Mild facet joint arthropathy is seen."[36]

"Findings: Subacromial/subdeltoid bursa shows a small volume of fluid. Assessment of the rotator cuff shows and intact teres minor tendon. Infraspinatus shows mild articular fraying and low-grade enthesopathic cyst at the attachment. Supraspinatus is intact. No cuff tear is seen. There is no denervation or atrophy.

There is no deltoid dehiscence. Coracoacromial ligament is intact. AC joint is intact.

Long head of biceps is normally located with intact bicipital anchor. Subscapularis is normal.

Assessment of the labrum and capsule demonstrates signal hyperintensity of the anterosuperior labrum and the labrum superiorly across the 12-o'clock position extending to the posterior labrum suspicious for a SLAP tear. Articular surfaces are maintained. Capsule is intact. No fracture is noted. Axillary contents are normal.

Conclusion: MRI of the right shoulder does demonstrate signal hyperintensity of the labrum anterosuperiorly across the bicipital anchor in keeping with a SLAP tear without destabilisation of the bicipital anchor. No cuff tear is noted."[37]

"No bony injury or bone stress of the left hemipelvis or left hip.

Minimal spurring along the lateral margins of the acetabular roof from 12 to 10 o'clock. No degenerative change of the left hip, otherwise preserved cartilage throughout.

Subtle oedema of the trochanteric bursal space, borderline for trochanteric bursitis."[38]

"Moderate cartilage wear of the right glenohumeral joint. There is thickening of the glenohumeral joint capsule at the axillary recess. There is also oedema within the rotator interval. These findings can be seen adhesive capsulitis.

There is a fairly large superior labral tear from approximately 3 o'clock to 9 o'clock and there does appear to be fraying and possible small tear at the biceps anchor at the insertion, but without flipped fragment or bucket handle tear.

Rotator cuff tendinopathy with low-grade partial supraspinatus tendon tear anteriorly."[39]

1. Dr Machart assessed the claimant for the insurer and provided a report dated

28 August 2024.[40] 2. Dr Machart reported the claimant informed me he had no physical issues before the accident. He reported neck pain, low lumbar pain and right shoulder pain and stiffness. 3. In respect of the lumbar spine, he reported the claimant was tender on the lower half of the lumbar spine, there was no spasm, movement was diminished by a third and radicular signs were not evident. 4. In respect of the cervical spine he reported tender paraspinal muscles, movement reduced by a third and reportedly painful at extremes. There was no asymmetry, no radicular symptoms, no spasm and no deformity. 5. In respect of the right shoulder not reported tenderness and withdrawing. All movements were reported to be painful and diminished including the asymptomatic left shoulder. He reported the following range of motion:

1. Dr Machart suggested the medical documentation from the GP did not indicate injury to the right shoulder at the time of the accident.
2. Dr Machart noted the initial focus was on the cervical and low lumbar spine with injuries to the right shoulder, hips and right knee added subsequently. He reported a strong element of pain behaviour. He concluded he was unable to corroborate separate injuries occurred concordant with the mechanism of injury. He reported the substantially diminished movement of the right shoulder was not supported by the contemporaneous evidence and he was not satisfied there was sufficient correlation between the right shoulder injury and the accident.
3. Dr Machart concluded from the contemporaneous evidence the claimant sustained soft tissue injuries to the neck and back.

1. Dr Herald assessed the claimant and provided a report dated 3 February 2025.[41]
2. In relation to past medical history Dr Herald reported the claimant was involved in a motor vehicle accident in 2020 and sustained a back injury which had completely healed prior to the accident. He noted left eye cataract surgery, asthma and diabetes.
3. Dr Herald reported the claimant sustained injuries to his right shoulder, neck, lower back and knee in the accident.
4. On examination of the cervical spine he found only 25% of normal range of motion, midline tenderness with right sided muscle guarding. He noted Spurling's test was positive with radicular complaints down his right arm. Both upper limbs were intact to tone, power and reflexes.
5. On examination of the lumbar spine Dr Herald found 50% of normal range of motion, bilateral muscle spasms, left more so than right. He noted an unsteady gait. Straight leg raise was possible in the left leg at 30°. The lower limbs were intact to tone, power and reflexes.
6. Examination of the right shoulder demonstrated tenderness over the greater tuberosity and over the region of long head of biceps tendon. He found range of motion of the right shoulder was flexion 80°, extension 40°, abduction 70°, adduction 50°, internal rotation 60°, external rotation 30°. He found active range of motion was equal to passive range of motion.
7. Dr Herald concluded the claimant had pre-existing degenerative disease within his cervical spine and his lumbar spine, but it was relatively asymptomatic at the time of the accident. He concluded the claimant had sustained an aggravation of that pre-existing condition. He also found the claimant had sustained a SLAP lesion caused by the accident. He noted the claimant now has features of a chronic pain syndrome.
8. Dr Herald assessed a 5% WPI of the lumbar spine, 5% WPI of the cervical spine and 9% WPI of the right shoulder giving rise to a total WPI of 18%.

Report of Dr Andrew McIntosh biomechanical engineer

1. Dr McIntosh provided a reported dated 22 October 2024 at the request of the insurer.[42]
2. Dr McIntosh concluded the change in velocity of the claimant's vehicle for the rear collision was less than approximately 11 kmph and the change in velocity of the claimant's vehicle for the frontal collision was less than 8 kmph. He concluded generally low magnitude biomechanical forces acted on the claimant.
3. In relation to the rear collision Dr McIntosh concluded the likely change in velocity of the claimant's vehicle is less than the recognised thresholds for the onset of thoraco-lumbar spine injury in rear end motor vehicle collisions.
4. In relation to the rear collision Dr McIntosh concluded that the range of movement of the claimant's cervical spine during the collision would have been less than the normal range of motion and loads applied would have been tolerated with a low likelihood of injury. However, he noted a proportion of vehicle occupants may suffer a whiplash associated disorder/soft tissue injury.
5. In relation to the frontal collision Dr McIntosh reported it was of low severity and the loads applied to the claimant's cervical and thoraco-lumbar spines would have been of low magnitude and less than human injury tolerance values and many normal activities.
6. Whilst Dr McIntosh agreed with Dr Chien that an impact load, including a motor vehicle collision, is a potential cause of a SLAP tear, he stated:

"I have considered his injury mechanism, which also includes sudden/forceful contraction of shoulder muscles. I agree that a driver might contract the shoulder muscles. No acute injury was included in the initial certificates of capacity, including a dislocation or subluxation. In my opinion, the actual forces acting through the Claimant's right shoulder, including any forces related to muscle contraction, would have been low magnitude and unlikely to cause a SLAP tear or other right shoulder musculoskeletal disorder."

1. Dr McIntosh concluded that the claimant's injuries were not consistent with the likely biomechanical forces in the accident. He found that a soft tissue injury to the cervical spine of a closed period and anterior chest minor soft tissue injury arising from seatbelt forces were consistent with the likely biomechanical forces in the accident. He concluded soft tissue injury to the cervical spine of prolonged duration, soft tissue injury to the thoraco-lumbar spine of prolonged duration, structural or disc injury to the spine, bilateral hips/pelvis/knees and right shoulder injury was not consistent with the likely biomechanical forces in the accident.

1. Mr Kang was re-examined by Medical Assessor Barnsley at the Commission's medical suites at 3.00pm on 13 February 2026. A Korean interpreter was present (NAATI number CPN51S77W). Mr Kang was accompanied by his wife. A chaperone was also present.
2. Medical Assessor Barnsley confirmed that Mr Kang understood the reason for the re-examination. The function and composition of the medical review panel was explained to Mr Kang. The non confidential nature of the assessment was disclosed. It was also explained to Mr Kang that the Medical Assessor would not be involved in his treatment in any way. The need to focus in on certain areas was explained as was the types of questions to be asked and the type of examination that would be required. Mr Kang was also made aware of the fact that the panel had access to some of his medical records. It was explained that inconsistencies within the examination and between different findings or history would be brought to his attention to allow him to explain.

1. Mr Kang was asked about his past medical history. He explained that in 2020 he had been involved in a motor vehicle accident in which he hurt his low back (2020 accident). He recalls being stationary in a car that was hit from behind. He said he experienced low back pain and was treated with extensive physiotherapy. He doesn't recall any back pain prior to that. That pain then settled.
2. His attention was drawn to the notes of his local doctor (Concord Family Doctors) of

6 December 2019. This details some back pain with tingling in a left sciatic distribution.

Mr Kang stated he could not recall this. He specifically denies any prior problems with his neck, back or shoulders in the period immediately before the accident in June 2022.

1. On 1 June 2022 Mr Kang was the driver of a Nissan Micra. He was wearing a seat belt. He was second in a line of traffic at a red light. The car behind him was struck by a third vehicle from behind. This shunted the car behind him into his vehicle and pushed it into the car in front. He recalls holding onto the steering wheel and stated that his arms were straight. The impact was unexpected and he recalls being forced backwards and then forwards. Neither ambulance nor police attended but he indicated that he was immediately aware of pain in the left lower back around the right shoulder and in the left lower neck.

History of symptoms and treatment following the accident

1. Mr Kang said he saw Dr Lee the next day. He stated that he had pain in all of these areas and it was managed with analgesics. He was referred to Dr Hae Sung Bak, rheumatologist and Dr Chien, orthopaedic surgeon. He also had physiotherapy.
2. Medical Assessor Barnsley brought to the claimant's attention that the original certificate of capacity of Dr Lee dated 2 June 2022 did not mention the shoulder (although it is noted Dr Lee did confirm his belief that the shoulder pain was caused by the accident in a subsequent report dated 6 May 2023). It was also pointed out that the Application for personal injury benefits signed by the claimant on 3 June 2022, two days after the accident, also made no mention of shoulder pain. Mr Kang said that he was "not thinking properly" at that time which is why he didn't mention the shoulder. He also stated that his body was tense, and he did not know which body parts were painful.
3. Mr Kang said his low back pain has persisted. He feels it has been getting worse over time. He described numbness and pins and needles in the left leg affecting the calf, the top of the foot and the big toe. He also describes a shooting pain radiating from the buttock down the length of the leg to the feet. He indicated all these symptoms had been present from the time of the accident. He saw Dr Chien and had been treated with analgesics, physiotherapy and at one stage he had an injection. The records show this injection was a peri-radicular injection at the left L5 nerve root. Mr Kang felt it was no help.
4. His neck pain has persisted since the accident. It has remained localised to the left lower part of the neck although he did indicate a broader area at times.
5. A few weeks after the accident Mr Kang began to experience a sense of weakness in the thumbs and index fingers and an electric sensation in the 5th digits. He was treated with physiotherapy for a year. He had an injection at C5/6 organised by Dr Hae Sung Bak but it is unclear from Dr Bak's notes what the precise target was. The claimant was also not sure exactly what structure was injected. In any event it was of no help.
6. Mr Kang stated that the right shoulder was present immediately after the accident. When asked specifically he can't remember if he was gripping the steering wheel at the time of the accident. Unfortunately, his right shoulder pain has persisted. He indicated that he had early loss of movement in the shoulder. The note of Dr Bak in October 2022 was put to him in which it was stated that he had a near full range of movement. Mr Kang did not know why this was the case.
7. His shoulder pain has become worse over time. He has noted crepitus on joint movement. He stated that it felt like the shoulder will pop out if he moves it. He said that he has had persistent restriction of his shoulder movements.
8. Mr Kang was asked specifically about symptoms elsewhere. He initially denied other symptoms but during the examination of his left shoulder he stated that he had experienced some left shoulder symptoms although these had started sometime after the accident. In recent months since he has returned to work, he has had some left elbow pain and some upper thoracic pain.
9. Mr Kang is currently working as a disability support worker 38 hours a week. This involves personal care of clients. He stated that he does this exclusively with his left hand and he has assistance from colleagues.
10. He is currently taking Prochlorperazine Pantoprazole, Diclofenac and Prodeine (Paracetamol and Codeine) as well as using some Korean pain patches and various liniments.

1. On examination Mr Kang held his neck rigid throughout the assessment. Similarly, he held his right arm fixed by his side with no spontaneous movements. He also held his back rigidly and walked with a shuffling stiff legged gait. He frequently grimaced and complained of pain.
2. He was 177 cm tall and weighed 87 kg. He was able to stand on his heels and toes with an assistant steadying him by holding his hands.
3. On examination of the lumbar spine flexion was markedly restricted to less than 25% of normal, and extension was similarly restricted to less than 25% of normal. All movements were accompanied by complaints of pain. Lateral flexion was to 50% of expected and was symmetrical. On palpation of the lumbar musculature there was no guarding and no spasm.
4. On examination of the lower limbs from a neurological viewpoint, Mr Kang had great difficulty climbing onto the couch and required assistance from his wife to remove his shoes and get onto the couch. He completed the first phase of the examination with his legs straight on the couch sitting with his hips flexed at right angles. Passive extension of the left foot (to assess sciatic tension) was negative but produced low back pain. When he was gently assisted in lowering to a supine position, straight leg raising on the left was 15 degrees with complaints of pain in the leg. This was inconsistent with the observed sitting posture which would be expected to stretch the sciatic nerve more than a supine straight leg raise. This inconsistency was brought to Mr Kang's attention. He said, "I think it is different in the seated position". There were no features to suggest a positive sciatic nerve test in the lower limbs.
5. Power in the lower limbs was globally decreased on the left side with complaints and non-verbal manifestations of pain such as grimacing and reaching for his back. There was no myotomal weakness. Knee jerks were present symmetrically as were ankle jerks. Light touch sensation was intact across all lower limb dermatomes.
6. Measurements of the lower limb circumference were made 5cm above the upper pole of the patella and 10cm distal to the lower pole of the patella, and are recorded in centimetres in the following table:

1. An assessment of the cervical spine flexion was 15% of normal, extension was also 15% of normal. Lateral flexion was symmetrical and significantly reduced to 15% of expected. Right and left rotation or also decreased to 25% of expected but were symmetrical. There was no guarding or spasm on palpation of the cervical spine although there was some tenderness over the left lower neck.
2. Neurological examination of the upper limb demonstrated give way weakness in both arms with no myotomal loss. Give way weakness occurs where there is initial application of muscle contraction which then is relaxed. It is a non-physiological, non-pathological finding. On assessing reflexes, the biceps jerks, supinator jerks and triceps jerks were all present. Light touch sensation was normal over all dermatomes in the upper limbs.
3. Measurements of upper limb circumference were made 10cm above the lateral epicondyle and 10cm below the lateral epicondyle and are recorded in centimetres in the following table:

1. This small difference is within measurement error and would be consistent with the claimant being right-handed.
2. Shoulder movements were assessed with a goniometer and are recorded in the table below in degrees. Two measurements were made to confirm reproducibility. The Medical Assessor considered that a third measurement was not appropriate as all movements resulted in complaints of increased pain.

1. The panel noted that a number of practitioners had examined Mr Kang. The results of their shoulder movements are tabulated below. There is considerable variation between examiners. This was brought to Mr Kang's attention. He explained that "as time passes your body changes". He also stated that if he had remained at home and had received treatment he would have got better.

1. Medical Assessor Barnsley noted several inconsistencies in both the history and the clinical examination. He observed a number of pain behaviours and a formed a strong impression of voluntary restriction of movement.
2. Inconsistencies in the range of movement of the shoulders are apparent from the table set out in paragraph 144 above. There was also inconsistency in range of movement as measured by Medical Assessor Barnsley, including the medically inexplicable complete loss of adduction of the right shoulder. The claimant reported that this was due to pain.

1. Following the examination by Medical Assessor Barnsley the Panel met on

27 February 2026 to consider its determination. 2. In considering causation the Panel refers to the test for causation set out in the Guidelines. However, the Panel also notes in Briggs v IAG Limited Trading as NRMA Insurance Wright J reminded us that the relevant legal test in relation to causation does not require scientific certainty.[43] His Honour stated at [70]-[72]:

"70. This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce [2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):

'138 Whether the Hospital's negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce's worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:

'An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference'.'

1. The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 as follows, at 242:

'... it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant's contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.'

1. Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140]."

1. The panel considered that the mechanism of the accident, specifically the forward and backward movement inherent in a rear end then frontal impact would have the potential to cause or aggravate neck pain. This conclusion is consistent with the opinion of

Dr McIntosh, biomechanical engineer who noted a proportion of vehicle occupants may suffer a whiplash associated disorder/soft tissue injury from a rear end collision. Therefore, the first component of causation is met in respect of injury to the cervical spine. 2. Whilst Paul Monaro, physiotherapist reported on 11 June 2020 that the claimant had attended eight sessions of treatment for his neck, lower back and left leg he also reported that Mr Kang continued to complain of numbness associated with the right foot and low back discomfort. 3. One day after the accident Dr Lee, GP reported complaints of severe neck pain and in the Application for personal injury benefits completed on 3 June 2022, Mr Kang reported he felt worse on his neck and back the day after the accident. On 3 June 2022 Mr Kang commenced treatment with Mr Oh, physiotherapist to the left side of the neck, the upper back and in respect of pain radiating down the left upper limbs and the left lower limbs. Thereafter there were consistent complaints of pain and restriction of movement of the cervical spine and Medical Assessor Barnsley reported Mr Kang asserted his neck pain had persisted since the accident. 4. Given Dr McIntosh, biomechanical engineer noted a proportion of vehicle occupants may suffer a whiplash associated disorder/soft tissue injury from a rear end collision and having regard to the contemporaneous and consistent complaint of symptoms relating to the cervical spine the Panel is satisfied that the accident did cause or contribute to the injury sustained by the claimant to the cervical spine. 5. On examination Mr Kang had complaints of neck pain without evidence of dysmetria, guarding or spasm. There were neurological complaints in the upper limbs but no clear evidence of radiculopathy. The Panel finds the claimant sustained a soft tissue injury to the cervical spine caused by the accident.

1. In considering the question of causation of injury to the lumbar spine the first question is whether the accident could have caused or contributed to the occurrence or worsening of a lumbar spine condition.
2. Dr McIntosh, biomechanical engineer expressed the view that injury to the thoraco-lumbar spine of prolonged duration, or structural or disc injury to the spine was not consistent with the likely biomechanical forces in the accident.
3. However, the Panel notes that the relevant legal test in relation to causation does not require scientific certainty and, in any event, finds that Dr McIntosh's conclusion does not exclude the possibility of the accident causing or contributing to the occurrence or worsening of a soft tissue lumbar spine condition.
4. Mr Kang had a significant history of pre-accident back pain. On 6 December 2019

Dr Kwak reported a history of back pain on and off, and on examination concluded

Mr Kang had muscle spasm with underlying sciatica. A CT scan of the lumbosacral spine the same day reported a diffuse disc bulge at L4/5 combined with mild facet arthrosis leading to mild central canal narrowing and potential irritation of the descending L5 nerve roots. 5. Following a motor vehicle accident in March 2020 Mr Kang reported he twigged his back and on 3 April 2020 Dr Kwak recorded ongoing lower back pain and spasm radiating to the buttocks and hamstrings. 6. On 12 June 2020 and 24 July 2020 Dr Kwak noted restriction of movement, paraesthesia, reduced reflexes and reduced sensation at the L4/5 level. Mr Kang had a left L5 perineural steroid injection on 21 August 2020. On 9 October 2020 Dr Kwak reported paraesthesia from the left buttock to the toe and a reduced left ankle reflex. 7. The Panel notes there is no reported complaint relating to the lumbar spine between October 2020 and the accident on 1 June 2022. 8. The accident occurred on 1 June 2022 and on 2 June 2022 Dr Lee noted injury to the whole back. In his certificate of capacity/certificate of fitness dated 2 June 2022 Dr Lee identified the claimant's history of previous lumbar disc pathology but noted the accident caused new and extended symptoms. 9. In the Application for personal injury benefits dated 3 June 2022 the claimant described pain in his back. 10. On 10 July 2020 the claimant underwent an MRI of the lumbar spine which reported disc dehydration and mild concentric disc bulging, but no focal disc protrusion. However, annular fissuring at L4/5 with the disc bulge was said to contact the left L5 nerve root. Similar findings were made in an MRI of the lumbar spine of 10 August 2022 which demonstrated a broad-based disc bulge at L4/5 with a left extraforaminal annular tear. 11. The claimant was reviewed by Dr Bak, rheumatologist on 22 October 2022. He reported there were no radicular features present and noted the MRI of the lumbosacral spine hadn't changed much since 2020. 12. The Panel notes the history of prior injury associated with clinical findings of back pain and left sided sciatica. Given the MRI scan of 10 July 2020 prior to the accident showed damage at the L4/5 level which was unchanged at the time of the post-accident MRI scan of 10 August 2022 the Panel is of the opinion, the annular tear and the changes shown on the MRI scan were pre-existing and not caused by the accident. The Panel concurs with the view of the First Review Panel in concluding that the signs of radiculopathy were present pre-accident and are not causally related to injury sustained in the accident. 13. Notwithstanding the opinion of Dr McIntosh and given the legal test for causation does not require scientific certainty the Panel, having regard to the consistent history of complaint post-accident and the opinion of Dr Lee that the accident caused new and extended symptoms, finds the accident caused the claimant to sustain a soft tissue injury to the lumbar spine.

1. In considering the question of causation of injury to the right shoulder the first question is whether the accident could have caused or contributed to the occurrence or worsening of a right shoulder condition.
2. The insurer relies upon the opinion of Dr McIntosh, biomechanical engineer who opined that there was no mechanism for shoulder injury where there was no direct or indirect blunt force loading of the shoulders in the accident.
3. However, in considering whether the accident could have caused or contributed to injury to the right shoulder the Panel notes Dr Lee supported injury to the right shoulder on the basis the right shoulder muscles would be suddenly and forcefully contracted against sudden movements between his body and the vehicle and Dr Chien opined that the sudden acceleration and deceleration of the vehicle would have led to forceful contraction of the shoulder muscles. The Panel agrees that if the claimant was holding onto the steering wheel with his arms straight at the point of impact the accident could have caused or contributed to the right shoulder injury.
4. Where the relevant legal test in relation to causation does not require scientific certainty and given the medical opinion of Dr Chien and Dr Lee the Panel finds that the mechanism of the accident could have caused or contributed to the occurrence or worsening of a right shoulder condition.
5. The second question is whether the accident did, in fact, cause or contribute to injury to the right shoulder.
6. The Panel notes there is no history of prior injury or complaint relating to the right shoulder.
7. Whilst Dr Lee did not refer to the right shoulder in his certificate of capacity/certificate of fitness dated 2 June 2022 on a diagram dated 3 June 2022 Dr Lee shaded each shoulder and reported "ROM (range of movement) with pain".
8. Medical Assessor Barnsley asked Mr Kang why he made no mention of shoulder pain in the Application for personal injury benefits completed on 3 June 2022, two days after the accident given the certificate of capacity of Dr Lee of 2 June 2022 also did not refer to the right shoulder. Mr Kang's response that he was not thinking properly at that time, his body was tense and he did not know which body parts were painful was less than helpful.
9. However, it is well established that a lack of available contemporaneous evidence is not decisive or determinative on the question of causation. In the recent decision of Bath v Allianz Australia Insurance Limited Price AJA reminds us that by treating the absence of documented contemporaneous complaints as decisive the Panel fails to exercise its jurisdiction.[44]
10. Mr Kang underwent an MRI of the right shoulder on 8 November 2022 which demonstrated a SLAP tear. He was referred to Dr Chien on 14 December 2022 in respect of his right shoulder. He reported Mr Kang had torn his right shoulder labrum which he considered was caused by the sudden acceleration and deceleration of the vehicle and the forceful contraction of the shoulder muscles. He was satisfied the mechanism of injury was consistent with the diagnosis noting that prior to the accident Mr Kang had no symptoms in his shoulder which was fully functional.
11. When he was examined by Medical Assessor Barnsley Mr Kang initially stated he recalled holding onto the steering wheel and that his arms were straight. He described the impact as unexpected, and he recalled being forced backwards and then forwards. However, he subsequently stated he couldn't remember if he was gripping the steering wheel at the time of the accident. Whilst the evidence given by the claimant at the time of the examination about gripping the steering wheel is equivocal the Panel accepts that if his arms were straight, he had the potential to sustain injury to the right shoulder. Given the claimant informed both Dr Chien and Medical Assessor Shahzad that his hands were on the steering wheel and he braced himself with his arms at the time of the accident the Panel finds, on the balance of probabilities, that the claimant was gripping the steering wheel and braced his arms at the time of impact.
12. The Panel refers to the inconsistencies demonstrated by the claimant on range of motion testing of the right shoulder. These inconsistences are set out in the table in paragraph 144 above. Medical Assessor Barnsley reported the claimant was not able to satisfactorily explain the reason for these inconsistences.
13. In Allianz Australia Insurance Limited v Bell[45] Price AJA stated cl 6.41 of the Guidelines refers to "inconsistences between the medical assessor's clinical findings" and inconsistency in reporting is solely relevant to the issue of causation. Medical Assessor Barnsley noted the claimant displayed marked pain behaviors on examination.
14. However, in concluding the claimant sustained a SLAP tear of the right shoulder caused by the accident, the Panel is not solely dependent on the history provided by the claimant but has had regard to the objective evidence provided by the MRI of 8 November 2022 which demonstrated a SLAP tear. Furthermore, there has been a consistent history of pain and restriction of movement, albeit inconsistent, of the right shoulder and there was no pre-accident record of right shoulder symptoms. There is no evidence to suggest the claimant's right shoulder was not fully functional at the time of the accident and there is no record of any intervening event.
15. The Panel finds on the balance of probability and given that scientific certainty is not required that the claimant sustained a SLAP lesion which is a superior labral tear of the right shoulder caused by the accident.

1. Impairment is assessed as at the time of the assessment (see cl 6.21 Guidelines) based on an interview with the claimant, a clinical examination and a consideration of the medical records (cl 6.18 Guidelines).

1. Mr Kang has complaints of neck pain without evidence of dysmetria, guarding or spasm.
2. For radiculopathy to be present, two or more of the following features need to be present:
   • loss or asymmetry of reflexes;
   • positive sciatic nerve root tension signs;
   • muscle atrophy and/or decreased limb circumference;
   • muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
   • reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
3. There are neurological complaints in the upper limbs, these appear to follow the C6 dermatome, being the symptoms experienced in the thumb and index finger. He has some additional symptoms in the 5th digits. These seem separate. There was no numbness across the entire hand.
4. Mr Kang does not have radiculopathy as defined in the Guidelines however he has radicular symptoms in the right C/6 dermatome.
5. The Guidelines do not indicate how to address concurrent multiple radicular symptoms but does recommend that where there is uncertainty about a Diagnosis-Related Estimate (DRE) classification the higher level should be used.
6. Under the DRE method of assessment as per cl 6.111 of the Guidelines DRE II requires there to be:

(a) pain with guarding; or

(b) non-uniform range of motion - dysmetria; or

(c) non-verifiable radicular complaints defined in table 6.8 as

(i) symptoms (shooting pain, burning sensation, tingling), and

(ii) which follow the distribution of a specific nerve root but no objective clinical findings such as loss or diminished sensation, loss of diminished power or loss or diminished reflexes.

1. Mr Kang demonstrates non-verifiable radicular symptoms, and his soft tissue injury of the cervical spine meets the criteria for DRE cervicothoracic category II which attracts a 5% WPI.

1. Mr Kang has complaints of low back pain without evidence of dysmetria, guarding or spasm.
2. Medical Assessor Barnsley assessed all five signs of radiculopathy. Whilst Mr Kang demonstrated global weakness in the left lower limb there was no myotomal weakness, knee and ankle jerks were present symmetrically and light touch sensation was intact across all lower limb dermatomes. In accordance with cl 6.141 of the Guidelines the Panel finds that the global weakness demonstrated by Mr Kang of his left lower limb is due to pain, inhibition or other factors and does not constitute weakness due to spinal nerve malfunction. The Panel finds Mr Kang does not have radiculopathy where he does not manifest on examination two of the relevant features required by the Guidelines to establish radiculopathy.
3. Further, whilst there are neurological complaints in the lower limbs, these do not follow a single dermatome and therefore do not meet the criteria for non-verifiable radicular symptoms.
4. Where Mr Kang has low back pain or symptoms but no guarding or non-verifiable radicular complaints or dysmetria the Panel finds the soft tissue injury of the lumbar spine meets the criteria for DRE lumbosacral category I which attracts a 0% WPI.

1. The Panel has concluded that the claimant sustained a SLAP lesion which is a superior labral tear of the right shoulder caused by the accident.
2. However, the claimant's shoulder movements were highly inconsistent both with the range observed by other medical examiners and at the time of the examination by Medical Assessor Barnsley where Mr Kang held his right arm fixed against his side and demonstrated a complete loss of adduction. This Panel does not consider the claimant's range of motion was plausible where it was not consistent with the diagnosed injury and considers it can only be caused by pain, inhibition or other factors.
3. The Panel finds that range of motion is not a reliable and valid method of objectively determining the level of impairment in accordance with cl 6.40 of the Guidelines and proposes to assess the impairment by analogy in accordance with cl 6.24 of the Guidelines.
4. An analogous condition would be mild (inconstant during active range of motion) crepitation of the right acromioclavicular joint which equates to 10% joint impairment under Table 19 on page 59 of the AMA 4 Guides. In accordance with Table 18 on page 58 of the AMA 4 Guides 10% of 15% equates to 1.5% WPI which is rounded to 2% WPI.
5. The Panel finds the claimant has sustained a 2% WPI of the right upper extremity as a result the injury to the shoulder.

Table 19 on page 59 and Table 18 on page 58 AMA 4 Guides

1. Applying the Combined Tables the Panel finds the claimant has sustained a 7% WPI caused by the accident.

1. The Panel makes no adjustment for the effects of treatment.

1. The Panel revokes the certificate of Medical Assessor Shahzad dated 14 August 2025 and determines that the accident was a cause of the following injuries which give rise to a permanent impairment of 7%:
   • cervical spine - soft tissue injury;
   • lumbar spine - soft tissue injury, and
   • injury to the right shoulder - slap tear.

[13] Insurance Australia Limited T/as NRMA Insurance v Mangogna [2023] NSWPICMP 588.

[43] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.

[44] Bath v Allianz Australia Insurance Limited [2026] NSWSC 165 at [21] - [22].

[45] Allianz Australia Insurance Limited v Bell [2025] NSWCA 187 at [105]- [111].