1. The Review Panel revokes the certificate of Medical Assessor David McGrath dated 29 June 2024 and issues a new certificate determining that:

(a) the following injury caused by the motor accident:

• cervical spine - soft tissue injury, and
• lumbar spine - soft tissue injury,

is a THRESHOLD INJURY for the purposes of the Act.

(b) the following injury caused by the motor accident:

• right shoulder - right labral tear,

is a NON-THRESHOLD INJURY for the purposes of the Act, and

there is insufficient evidence for the Panel to determine if the left shoulder injury is a threshold injury or a non-threshold injury for the purposes of the Act.

1. Faisal Sultan (the claimant) was driving his new BMW sports car along Foothills Road in Balgownie. He says he was travelling at a speed of 30 to 40kmph. His mother was the front-seat passenger. The insured vehicle was parked on the side of the road. It suddenly pulled out in front of the claimant's vehicle which was impacted on the left side at the level of the front door. All 12 airbags in the claimant's vehicle deployed. Ambulance and Police Officers attended. The claimant's mother was taken to a hospital but he walked home a short distance.
2. The claimant alleges that he suffered injuries to his cervical and lumbar spine, as well as both shoulders, in the subject motor accident.
3. QBE (the insurer) identifies the owner and/or the driver of the at-fault vehicle for liability to pay to the claimant any damages and/or statutory compensation benefits under the Motor Accident Injuries Act 2017 (the Act).
4. The insurer denied liability to pay statutory benefits beyond 26 weeks on the basis that all of the claimant's alleged injuries relevantly are threshold injuries for the purposes of the Act.

1. As there is a dispute between the parties about whether the injury caused by the motor accident is a threshold injury under Schedule 2, cl 2(e) of the Act, the claimant was referred by the Commission to Medical Assessor David McGrath for assessment.
2. Medical Assessor McGrath certified on 29 June 2024 as follows:

The following injury caused by the motor accident:

• Cervical spine - soft tissue injury
• Lumbar spine - soft tissue injury
• Right shoulder - soft tissue injury
• Left shoulder - soft tissue injury

is a THRESHOLD INJURY for the purposes of the Act.

Medical Assessor McGrath found that no definitive tissue injury was identified in either of the shoulders or spine. He did not accept the right shoulder labral tear as causally related to the subject accident. He stated that imaging of the left shoulder was consistent with past injury and surgical intervention. He found there are no signs of acute injury in the left shoulder.

1. Medical Assessor McGrath stated that no radiological and medical imaging was brought to the assessment. The diagnostic scans were provided to the Panel in response to its direction.

1. The claimant sought a review of Medical Assessor McGrath's certificate, on the basis that the medical assessment was incorrect, within the meaning of s 7.26 of the Act, in a material respect. The claimant brought the application within the time prescribed by s 7.26(10)(a) of the Act and cl 34 of Procedural Direction PIC 7 (28 days).
2. The claimant's submissions identify the following material errors as necessitating review of the Medical Assessor's certificate:

(a) Medical Assessor McGrath failed to engage with the contemporaneous and other medical evidence provided, which resulted in a paucity of transparent reasoning in the Medical Assessor's certificate.

(b) Medical Assessor McGrath determined that the right shoulder labral tear is not accepted as causally related to the accident, due to the nature of the impact, the modern passive features of an expensive vehicle and the absence of focal shoulder pains at the time of the accident and later (claimant's underlining).

The claimant submitted that, in arriving at the causation finding, Medical Assessor McGrath failed to provide appropriate reasons as to how he arrived at his conclusion.

(c) In relation to the Medical Assessor's alleged failure to engage with cotemporaneous evidence, the claimant submitted that Medical Assessor McGrath relied solely upon a report dated 26 April 2023 by Dr Tej Dugal, a non-treating radiologist. It was submitted that, had Medical Assessor McGrath independently reviewed the radiological scans of the claimant's shoulders performed on

8 February 2023, he would have noted that the MRI demonstrates anterior, inferior and posterior labral tears with small adjacent para-labral cyst in the right shoulder.

(d) It was further submitted that Medical Assessor McGrath failed to independently review and determine, given the nature of the pathology and the claimant's complaints, whether the displaced posterior inferior labral tear was caused by the subject accident.

(e) It previously has been noted that Medical Assessor McGrath was not provided with the original diagnostic scans.

(f) The claimant's submissions were coloured by and predicated upon complaints about the alleged behaviour and language of Medical Assessor McGrath during his examination of the claimant. None of those matters are referred to by the President's delegate. They are not relevant to the Panel's consideration.

1. The claimant's review application was opposed by the insurer on various grounds.
2. In relation to the claimant's first ground for review, the insurer submits that Medical Assessor McGrath considered all of the documents provided in the application and reply. The material provided by the parties comprised almost 600 pages. The insurer submits that Medical Assessor McGrath was not required to provide comprehensive summaries of all the available medical evidence, and that he has not done so is not a basis to suspect his assessment was incorrect in a material respect. The insurer also submitted that the contents of Medical Assessor McGrath's certificate do not support the claimant's allegation that Medical Assessor McGrath "solely" relied on Dr Dougal's opinion, nor does it establish that Medical Assessor McGrath failed to have regard to all of the material before him.
3. In relation to the claimant's second ground for review, that Medical Assessor McGrath failed to provide "appropriate" reasons in relation to the determination that right shoulder pathology was not causally related to the subject accident, the insurer submitted that it was open to Medical Assessor McGrath to find that the pathology present in the claimant's right shoulder was not causally related to the accident and is more likely degenerative in nature. The insurer further submitted that it was also open to Medical Assessor McGrath, with reference to his clinical expertise, to accept that the deployment of all 12 airbags in the claimant's vehicle may have prevented the development of certain injuries.
4. The insurer submitted that the claimant failed to establish reasonable cause to suspect material error on the basis of the reasons provided in Medical Assessor McGrath's certificate.
5. President's delegate, Ratula Gupta, issued a Determination of an Application for Review of a Medical Assessment on 22 August 2024 which stated the satisfaction of the President's delegate that there is reasonable cause to suspect that Medical Assessor McGrath's assessment was incorrect in a material respect. The basis of that decision was stated to be that Medical Assessor McGrath failed to explain how the nature of the impact would not result in a right shoulder labral tear, and failed to explain what "modern passive features of an expensive vehicle" would negate the possibility of the claimant sustaining a right shoulder tear, as a result of the accident. Accordingly, the claimant's review application was accepted.
6. The Review Panel is to assess the following injuries:
   • cervical spine;
   • lumbar spine;
   • left shoulder, and
   • right shoulder,

which are the same injuries that were referred to Medical Assessor McGrath for assessment.

1. The Panel noted the letter dated 7 May 2022 from Dr Jansen, treating orthopaedic surgeon, to Dr Sayed Zafar. The Panel asked if the parties agree that the reference to a fall heavily onto the claimant's right outstretched hand probably is an error, noting that Dr Jansen performed an AC joint resection of the claimant's left shoulder?
2. Comparing the report dated 8 February 2023 of the MRI scan of the left shoulder to the earlier scan, to which Dr Jansen refers, it seemed to the Panel that there may be evidence of a change in the labral tear on the left side post-accident. The parties are encouraged to consider jointly qualifying an expert radiologist (such as Dr Korber) to examine the original scans. If there has been an increase in the left shoulder labral tear post-accident, that would be a non-threshold injury. The alleged injury to the right shoulder may then be irrelevant and further examination of the claimant may not be necessary. The parties were invited to make further submissions in relation to those matters.
3. The parties made no submissions in relation to the above observations by the Panel.

1. A medical assessment matter is determined in accordance with s 63 of the Act. The matter is determined at first instance by a Medical Assessor pursuant to and, on review, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
2. Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission, including proceedings before a Panel, reviewing a decision of a Medical Assessor.[1]
3. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the 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.[2]
4. The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[3]
5. All members of the Review Panel had no previous involvement with the claimant or with this matter.

1. The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on

28 November 2022 with various amendments commencing on 1 April 2023. From that date, the MAI Amendment Act provides that a "minor injury" is known as a "threshold injury" and "minor injuries" are known as "threshold injuries". 2. The definition of what constitute a minor injury has not been amended and continues to apply to a threshold injury. 3. Any reference in these reasons to "minor injury" is a reference to a "threshold injury" and any reference to the word "minor" referring to the injury alleged to have occurred in the accident is a reference to "threshold". 4. A threshold injury is defined in s 1.6 of the MAI Act and includes a "soft tissue injury" or "psychological or psychiatric injury that is not a recognised psychiatric illness". 5. Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the accident is a threshold injury for the purposes of the MAI Act. 6. Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:

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

5.4 Diagnostic imaging is not considered necessary to assess threshold injury.

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

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

1. comprehensive accurate history, including pre-accident history and pre-existing conditions;
2. a review of all relevant records available at the assessment;
3. a comprehensive description of the injured person's current symptoms;
4. a careful and thorough physical and/or psychological examination;
5. diagnostic tests available at the assessment.

Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination."

1. The parties have presented their respective bundles of documents upon which they rely. The Review Panel (Panel) has read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel, or a Panel Member, has not read it, nor taken it into consideration. The same principle applies to parties not referring to, nor specifically relying upon, a document in their own bundle and submissions.
2. The fact that evidence is not referred to in these reasons does not mean it has been overlooked. It is not required that each piece of evidence be mentioned. The Panel is not required to "analyse every piece of information from every opinion contained in a document with which it was provided". The Panel has come to its own conclusions and has taken its own history.

1. The claimant relied upon the following material which the Panel has considered:

The claimant submissions made to the President's delegate

Claimant's submissions in support of review of internal review decision

The claimant made detailed and extensive submissions in relation to his Physical Injuries which can be summarised as follows:

The opinions of Dr Antoun, Dr Azimi- Tabrizi and Dr Dougal, as relied on by the insurer, go against the weight of the evidence. They are the opinions of non-treating physicians who have formed their opinions without clinically assessing the claimant, without considering the extent of ongoing treatment the claimant has been receiving since the date of his injury to the present date, nor was consideration given to the clinical files of Dr Syed Adil Zafar, Phyxit Physiotherapy and Dr Jansen.

The injuries he sustained to his right and left upper extremities are non-threshold, as the evidence indicates that the claimant satisfies the definition of a non-threshold injury under s 1.6(2) of the Act and ought to be assessed as such.

Further, the injuries he sustained to his cervical spine and lumbar spine are non-minor, as the evidence indicate that the claimant satisfies a diagnosis of radiculopathy, as outlined in cl 5.9 of the Guidelines.

Based on the medical evidence, the claimant sustained non-threshold injuries, as a result of the subject motor accident.

Status post longhead biceps tenodesis. Rotator cuff tendons are intact. No significant fluid distension of subacromial/subdeltoid space.

Widening of the AC joints space presumably related to previous AC joint resection and further clinical correlation in this regard is recommended. Mild narrow oedema in relation to the distal clavicle.

Undisplaced tear posterior inferior labrum without any paralabral cyst formation.

Intact rotator cuff. Anterior inferior and posterior labral tears with small adjacent par labral cyst.

Insurer's Certificate of Determination - Internal Review with reasons and correspondence concerning manner of PIC determination

1. The insurer relied upon the following material which the Panel has considered:

Insurer's submissions in response to claimant's WPI application

Liability notice - termination of benefits after 26 weeks

• 27 January 2017 X-ray left shoulder;
• 27 January 2017 Ultrasound left shoulder;
• 18 August 2020 Ultrasound right shoulder, and
• 8 February 2023 MRI left shoulder and MRI right shoulder.

Mr Sultan was involved in an incident on 26 December 2022 with complaints of shoulder symptoms that have been confirmed on imaging with no acute or traumatic features only long-standing degenerative pathology, that does not correlate with the claimed timeframe or event.

Correspondence with reporting radiologist, Dr Arash Azimi-Tabrizi confirmed that there were no acute or traumatic features in both the left and right shoulder, with pathology that is similar in both shoulders, and consistent with long-standing features, that do not correlate with the claimed timeframe or event.

The MRI of the left and right shoulder have confirmed no acute or traumatic features only long-standing degenerative pathology, are similar in both shoulder and are not related to or a direct result of the claimed incident on 26 December 2022.

As there are no acute or traumatic features confirmed on imaging, Mr Sultan's claimed pathology are long-standing degenerative in nature, unrelated to the claimed event and the reported injuries considered soft tissue/musculoligamentous in nature, and expected to have resolved.

Under the Act, Mr Sultan's bilateral shoulder pathology have been confirmed on imaging as long-standing degenerative pathology, with no acute or traumatic features related to the claimed event, and are deemed as a threshold injury.

Review of the MRI shoulders performed on 6 February 2023.

MRI of the left shoulder is notable for large labral tear anterosuperiorly, across the twelve o'clock position as well as the posterior labrum. There is frame of the adjacent labrum, overall findings suggesting that the tear and labral frame and unlikely to be related to the incident described in the timeframe of approximately six weeks prior to the injury. The cuff tendinopathy, AC joint changes and acromial narrow oedema is also most likely on the basis of prior intervention and degenerate changes rather than having a traumatic appearance. The AC joint changes are likely post-operative.

Overall findings of right shoulder appear long-standing and predominantly demonstrating cuff tendinopathy without cuff tear, subacromial/subdeltoid bursal impingement and a global labral tear with paralabral ganglion cyst. The findings are not suggestive of a timeframe related to the incident.

Soft tissue injuries involving neck, back and both shoulders together with reported anxiety attacks.

Mr Kassir had reported a diagnosis of post-traumatic stress disorder. Mr Kassir stated that he had scored within parameters of the tests that show a post-traumatic stress disorder diagnosis, and it is further evident by diminished capacity he had reported in session, to both social and occupational function. Pre-existing conditions were denied. Mr Kassir had maintained that Mr Sultan maintains a PTSD diagnosis upon follow up review on 4 July 2023. However, based on the described event and functional ability, I am not convinced of the current diagnosis and would recommend further opinion.

1. The report of the Medical Assessors is as follows:

1. Mr Sultan attended the PIC rooms on the 14th of May 2025. He was assessed by medical assessor Les Barnsley and medical assessor Shane Maloney.
2. He indicated that prior to the motor vehicle accident he was working full time as a plumber. In 2022 he had had left shoulder surgery following a fall onto an outstretched arm in December 2021. He understands that he dislocated or partially dislocated the shoulder. He was recovering well from the surgery.
3. He described being involved in the previous motor vehicle accident some years ago from which he had made a full recovery. Other than some residual symptoms in the left shoulder he did not have any other shoulder problems. Specifically, there was no right shoulder symptoms prior to the motor vehicle accident in question.
4. On the 26th of the 12th of 2022 he was the seat belted driver of his BMW M4. His mother was a passenger in the vehicle. He was driving along a suburban road near his home when another vehicle pulled out in front of him and he had a front to side accident. His recollection is of a violent stop.
5. He recalls being forced forward against the seat belt over his right shoulder. All of the car's airbags deployed including the right curtain airbag and the steering wheel mounted airbag.
6. His mother was in the passenger seat and the accident resulted in multiple fractured ribs on her left side.
7. He recalls that the curtain airbags hit him on the side of the face and the right side of the head.
8. Immediately after the accident he was aware of pain in both shoulders and his neck and he also had some low back pain. He had some bruising over the anterior right shoulder.
9. He attended his local doctor 2 days later at which time his complaints were of bilateral shoulder pain, neck pain and some low back pain.
10. Approximately 6 weeks following the accident he was referred for some imaging studies. These demonstrated labral tears in both the left and right shoulder.
11. He had a corticosteroid injection into the right shoulder as well as some physiotherapy. He was also referred back to his usual shoulder surgeon, Dr Jansen. He understands that Dr Jansen recommended ongoing physiotherapy.
12. He has had ongoing symptoms of right and left shoulder pain. The right shoulder pain comes and goes is made worse by working in front of him or reaching with heavier tools.
13. He's had constant pain in the left shoulder which is located in the left deltopectoral groove. He experienced his left sided neck pain that radiates up into the head. He has some low back pain with no radiation. He is not had any lower limb neurological symptoms such as tingling or numbness .
14. Approximately 6 months ago he developed some intermittent tingling in the left first to third fingers.
15. He is currently being treated with topical anti-inflammatory gel to the shoulders and he takes up to two Panadol at night for pain.
16. He has had no further injuries to the neck or shoulder since the index motor vehicle accident, but he has had a fall which resulted in a meniscal injury in the left knee.
17. On examination he was179cm tall and weighed 84 kg.
18. Examination of the cervical spine demonstrated symmetrical rotation to 80% of expected. Lateral flexion was also symmetrical and 80% of expected range. Flexion and extension were both 80% of expected range.
19. There was no guarding or spasm on examination of the cervical musculature. There was some tenderness of the left paravertebral muscles.
20. Neurological examination of the upper limbs revealed normal power in all muscle groups on both sides. Biceps, triceps and supinator jerks were symmetrical and normal. There was no alteration in light touch sensation.
21. Arm circumference measured 10 centimetres above the lateral epicondyle was 31 centimetres on the right and 29.5 centimetres on the left. The medical assessors considered this difference was consistent with right handedness in a manual worker. Forearm circumference measured 10 centimetres below the lateral epicondyle was 29 centimetres on the right and 28.5 centimetres on the left.
22. Examination of the lumbar spine demonstrated no guarding or spasm but there was some left lower lumbar tenderness. Flexion and extension were normal. Lateral flexion of the lumbar spine was symmetrical and of normal amplitude.
23. Straight leg raising was to 60° on both sides. It was limited by hamstring and calf tightness on both sides. Sciatic stretch tests were negative on both sides.
24. Neurological examination of the lower limbs revealed normal power in both legs. Knee jerks and ankle jerks were both present and symmetrical. Sensation was intact across all dermatomes to light touch.
25. Circumference of the lower limb measured 10 centimetres above the upper pole of Patella was 44 centimetres on the right and 43 centimetres on the left. The medical assessors considered that this difference was related to the knee injury on the left side which would be expected to result in some quadriceps wasting. Maximum calf circumference was 34 centimetres on each side.
26. On examination of the shoulders, he was tender over the left acromioclavicular joint. Palpation of the right shoulder revealed right crepitus and tenderness over the glenohumeral joint. Passive range of movement was slightly larger on right abduction than active
27. On the left side there was tenderness over the left glenohumeral joint but no crepitus.
28. The range of movement in the shoulders was measured with a goniometer. It is reported in degrees in the following table.

1. The panel then considered whether injuries caused by the index motor vehicle accident were threshold or non-threshold according to the act.
2. The reported injuries to the cervical spine and lumbar spine would be non-threshold if there was evidence of radiculopathy or tears to ligaments, tendon, cartilage or menisci.
3. The panel did not find any evidence that there was any complete or partial tear to any of the ligaments, tendons or menisci in either the cervical or lumbar spines.
4. The panel then considered whether there was evidence of radiculopathy in either the upper or lower limbs. The panel notes that 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 length circumference; muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution; reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
5. The examination did not find two or more of the above signs in either the upper or lower limbs. Therefore, there was no radiculopathy present from either the cervical or lumbar spine.
6. The panel then considered the injuries to the shoulders. On the left side there had been a previously documented labral tear. The assessors were not provided with the relevant imaging studies to facilitate a direct comparison between the pre accident MRI study on the left side and the post accident MRI study on the left side.
7. On the right side the post-accident shoulder MRI demonstrated a labral tear. The panel notes that there has been discussion about the chronicity of this finding based on the finding of a paralabral cyst. Whilst the panel recognises that a paralabral cyst is a feature of longstanding labral pathology it does not exclude an aggravation or extension of a labral tear.
8. The panel also considered that, if there had been a prior labral tear, either from previous injury or degeneration, this would be more susceptible to further injury.
9. The panel therefore considered the question of causation of the right labral tear. In the accident Mr Sultan would have been subject to abrupt deceleration. This was against the restraint of the seat belt over the right shoulder and also the air bags. The panel therefore considered that the motor vehicle accident could have caused an injury to the labrum of the right shoulder.
10. The panel then considered whether the motor vehicle accident did cause an injury to the right shoulder. There was evidence in the contemporaneous notes, and from the history obtained at re examination, that he did not have symptoms in the right shoulder before the accident, but that he did develop them afterwards. The panel also noted at re examination he had limitation of movement in the right shoulder and crepitus. Taken together the symptoms and the physical findings would indicate that he did sustain an injury to the right shoulder in the motor vehicle accident.
11. The panel therefore considers that the injury to the right shoulder is non-threshold."

1. The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[4]
2. The Panel is not required to choose between medical opinions and is required to form its own opinions.[5] The Panel adopts the findings and opinions of the Medical Assessors who concur with one another.
3. The Medical Assessors have explained the basis and rationale of their assessments. As they were not provided with the relevant imaging studies to facilitate a direct comparison between the pre-accident MRI study on the left side and the post-accident MRI study on the left side, the Medical Assessors are of the opinion there is insufficient evidence to determine if any accident-related injury to the left shoulder is threshold or non-threshold. Having regard to the Panel's determination in relation to the right shoulder injury, the injury to the left shoulder is not critical.

1. For the above reasons, the Panel concludes the certificate issued by Medical Assessor David McGrath dated 29 June 2024 should be revoked. The new Certificate appears at the commencement of these reasons.

[5] Allianz Australia Group Limited v Keen [2021] NSWCA 287 and Insurance Australia Group Limited v Marsh [2021] NSWCA 31.