Review Panel Assessment of permanent impairment and treatment and care

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

Issued under Division 7.5 of the Motor Accident Injuries Act 2017

1. The Review Panel found the permanent impairment arising from injuries caused by this motor accident is different to that found in Medical Assessor Kuru's assessment certificate dated 7 September 2024;
2. Accordingly, the Review Panel revokes that certificate and issues a new certificate;
3. the Review Panel found that the accident caused the following injuries and assessed them as giving rise to 11% permanent impairment:
   • right shoulder - Acromio-clavicular joint dislocation, complete rupture of the superior and inferior AC joint capsule ligaments, complete rupture of the coracoclavicular ligaments, low grade tears and tendinosis of the lateral and posterior deltoid muscle fibers at the clavicular insertion, partial rotator cuff tear of the supraspinatus, Musculo-ligamentous strain injury, soft tissue injury;
   • left shoulder - supraspinatus tear
   • left leg - Musculo-ligamentous strain injury, soft tissue injury.
   • right leg - Degloving injury, full thickness skin laceration of the right pre-tibial area, Musculo-ligamentous strain injury, soft tissue injury.
   • cervical spine - Musculo-ligamentous strain injury, soft tissue injury.
   • skin scarring - Right leg, right knee.

The accident caused injuries with a permanent impairment of 11% which is greater than 10%;

1. the Review Panel revokes Medical Assessor Kuru's finding in the certificate dated

7 September 2024 and states that the following treatment and care: * left arthroscopic cuff repair requested by Associate Professor Mark Haber

RELATES TO THE INJURY CAUSED BY THE MOTOR ACCIDENT, and

1. the Review Panel finds the following treatment and care:
   • left arthroscopic cuff repair requested by Associate Professor Mark Haber

1. Sean Williams (claimant) was injured in a motor accident on 26 October 2022.
2. Mr Williams was riding his motor cycle in the left lane at about 50 km/h when a car turned in front of him from the right lane. He fell with his right leg pinned under the bike.
3. An ambulance took him to Royal Prince Alfred Hospital where he spent two days. The hospital surgically debrided the right leg wound. He had immediate pain in his right shoulder with an acromioclavicular joint dislocation and bruising over his right hip.
4. A dispute arose between the claimant and QBE (Insurance) Australia Limited, the insurer, about the degree of permanent impairment arising from the claimant's injuries and whether the accident caused an injury requiring treatment being left arthroscopic rotator cuff repair.
5. The parties were unable to resolve the disputes, and the claimant referred the matter to the Personal Injury Commission (Commission) for a Medical Assessor to resolve.
6. The Commission referred the following injuries for assessment:
   • right shoulder - acromio-clavicular joint dislocation, complete rupture of the superior and inferior AC joint capsule ligaments, complete rupture of the coracoclavicular ligaments, low grade tears and tendinosis of the lateral and posterior deltoid muscle fibres at the clavicular insertion, partial rotator cuff tear of the supraspinatus, musculo-ligamentous strain injury, soft tissue injury;
   • left leg - musculo-ligamentous strain injury, soft tissue injury;
   • right leg - degloving injury, full thickness skin laceration of the right pre-tibial area, musculo-ligamentous strain injury, soft tissue injury;
   • cervical spine - musculo-ligamentous strain injury, soft tissue injury, and
   • skin - scarring - right leg, right knee
7. The Commission also referred a dispute about treatment couched as follows:

Treatment description: Left Arthroscopic Rotator Cuff Repair"

1. Medical Assessor Robert Kuru assessed the claimant on 29 August 2024 and issued a certificate dated 7 September 2024. Medical Assessor Kuru assessed permanent impairment arising from the claimant's injuries as 9%.
2. Medical Assessor Kuru found that the accident did not cause the left shoulder condition so surgery on that body part did not relate to an injury caused by the accident and accordingly, it was not reasonable or necessary.
3. The claimant applied for review under s 7.26 of the Motor Accident Injuries Act 2017 (the MAI Act). The applicant relied on the Medical Assessor failing to provide reasons as to why the accident did not cause the left shoulder condition. There were no submissions regarding the Medical Assessor's permanent impairment assessment in that body part.
4. The President of the Commission's delegate instituted this Review Panel to review Medical Assessor Kuru's assessment (the Review) in a decision dated 6 November 2024.
5. Following rule 128(1) of the Personal Injury Commission Rules, 2021 (the PIC Rules) the Panel 'is to conduct and determine the proceedings in accordance with procedures determined by the panel'.
6. The Panel met for the first time on 13 February 2025.
7. The Panel discussed the paucity of the left shoulder history. The certificate referred for review and the medicolegal reports which did not attempt to drill down in detail about when the left shoulder complaints first appeared and links with the accident.
8. The Panel noted:

(a) there is a line in Dr Wallace's report to left shoulder symptoms in December 2022 and the claimant being referred for physiotherapy;

(b) the claimant refers to Associate Prof Haber's approving of a nexus with the accident, but there is no reasoning apart from saying the accident could have caused the injury;

(c) despite the treatment dispute being focused on the causation issue the claimant has not provided a statement setting out the history;

(d) the Panel noted a scan taken on 9 October 2023, which appeared to be taken for comparison with the frankly injured right shoulder showing the left shoulder was torn but without symptoms;

(e) there is no history about whether left shoulder is alleged to be a frank injury or if the claimant was over relying on his left shoulder due to the right shoulder injury and whether there was a nexus with his employment, and

(f) further, there is no evidence about whether he returned to kickboxing and weight training since the accident.

1. The Panel sought submissions about whether the dispute is focused on the treatment issue or whether the parties also require a fresh assessment of permanent impairment; excluding or including the left shoulder.
2. The Panel agreed that if the parties agreed the only dispute to resolve is the left shoulder treatment issues, then the review could be accomplished by Medical Assessors Dixon and Assem interviewing the claimant together on Teams video to obtain the claimant's history in respect of the left shoulder. The Panel would rely on s 7.25 MAI Act to affirm the Medical Assessor Kuru's permanent impairment if that were the case.
3. The claimant submitted in response to the Panel's directions that a review of the permanent impairment is required because Medical Assessor Kuru made findings based on an incorrect medical history, did not provide clear reasons and did not apply the Motor Accident Guidelines[1] (Guidelines) correctly in respect to assessing permanent impairment.
4. The claimant also submitted it was appropriate to conduct an examination to measure the claimant's present range of motion.
5. The insurer agreed with the claimant's submissions and that it was appropriate to include an assessment of the left shoulder's permanent impairment if the Panel finds that the accident made a material contribution to that condition.
6. Senior Medical Assessor Dixon agreed to examine Mr Williams on the Panel's behalf. There was delay due to changes in the claimant's and the Medical Assessor's availability. The examination took place on 17 October 2025.

1. The Panel must conduct the Review in accordance with s 7.26 of the MAI Act. Section 7.26(5A) provides that two Medical Assessors and a legally qualified Member assigned to the Motor Accidents Division of the Commission will constitute a Panel.
2. The Review is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned: s 7.26(6) MAI Act.
3. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (Rules) are made pursuant to Part 5 of the PIC Act. The Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.
4. Version 10 of the Motor Accident Guidelines (Guidelines), effective from 15 September 2025, applies to the Review.

1. If there is a dispute about whether the degree of permanent impairment of an injured person is sufficient for an award of damages for non-economic loss, damages may not be awarded unless the degree of permanent impairment has been assessed by a Medical Assessor under Division 7.5: s 4.12(1) MAI Act.
2. The method of assessing the degree of impairment is dealt with in s 7.21, which is in the following terms:

"7.21 Assessment of degree of permanent impairment

(1) The assessment of the degree of permanent impairment of an injured person for the purposes of this Act is to be made in accordance with the Motor Accident Guidelines. The assessed degree of permanent impairment is to be expressed as a percentage.

(2) Impairments that result from more than one injury arising out of the same motor accident are to be assessed together to assess the degree of permanent impairment of the injured person...

(4) A medical assessor may decline to make an assessment of the degree of permanent impairment of an injured person until the Medical Assessor is satisfied that the impairment caused by the injury has become permanent."

1. Pre-existing impairment is addressed in cls 6.31-6.33 of the Guidelines. Clause 6.34 deals with subsequent injuries.
2. Parties should note that the terms "permanent impairment" and "whole person impairment" (WPI), which appears often in medical reports mean the same thing.
3. The Guidelines state as follows with respect to causation of injury:

6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.

6.6 Causation is defined in the Glossary at page 316 of the AMA 4 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."

1. It is necessary for the Panel to consider whether the accident caused or contributed to the diagnosed conditions: Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372 at [75]. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible: Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 at [50]. Further, the provisions of the Civil Liability Act 2002 apply, in particular s 5D and

s 5E. 2. In respect to resolving treatment disputes the Panel must follow s3.24 MAI Act.

"Entitlement to statutory benefits for treatment and care

(1) An injured person is entitled to statutory benefits for the following expenses (treatment and care expenses) incurred in connection with providing treatment and care for the injured person -

(b) reasonable and necessary travel and accommodation expenses incurred by the injured person in order to obtain treatment and care for which statutory benefits are payable,

(c) if the injured person is under the age of 18 years or otherwise requires assistance to travel for treatment and care, reasonable and necessary travel and accommodation expenses incurred by a parent or other carer of the injured person in order to accompany the injured person while treatment and care for which statutory benefits are payable is being provided.

(2) No statutory benefits are payable for the cost of treatment and care to the extent that the treatment and care concerned was not reasonable and necessary in the circumstances or did not relate to the injury resulting from the motor accident concerned.

(3) The Motor Accident Guidelines may provide for -

(a) circumstances in which the cost of treatment and care is taken to be reasonable for the purposes of this section, and

(b) circumstances in which treatment and care is taken to be reasonable and necessary for the purposes of subsection (2).

See Part 7 and Schedule 2 for provisions relating to disputes about whether treatment and care, or the cost or treatment and care, provided or to be provided to an injured person is reasonable and necessary."

1. The same principles of causation apply to treatment disputes as to permanent impairment.

1. Medical Assessor Kuru's certificate dated 7 September 2024 noted that the claimant's evidence consisted of an application for personal injury benefits recording right shoulder and right shin injuries.
2. Medical Assessor Kuru accepted all the referred injuries were caused by the accident, except for the left shoulder condition. He did not state why he decided that. Accordingly, the left shoulder arthroscopic rotator cuff repair was not reasonable and necessary treatment.
3. He assessed the accepted body parts with permanent impairment as follows:

(a) right shoulder with 6% permanent impairment;

(b) left leg was 0%;

(c) right leg permanent impairment degloving injury 1%;

(d) cervical spine 0%, and

(e) right leg scarring 2%.

1. The bulk of the documentary evidence before the Panel consists of the bundles filed by the parties in accordance with the Panel's directions. The Panel has considered this material.

1. The insurer's evidence consisted of Dr Keller's report dated 5 August 2024 concluding Mr Williams was not at MMI and declining to assess permanent impairment. Dr Wallace's report dated 12 August 2024 assessed 7% permanent impairment for the right shoulder injury and scarring of the right shin.
2. Dr Wallace concluded there was no objective evidence of injury that the accident caused a cervical spine or left shoulder injury as a result of the accident.
3. On examination, there was no swelling, deformity, or tender areas at his cervical spine. The examination showed no left shoulder tenderness with normal strength in abduction and external rotation.
4. Dr Wallace noted there was a dislocation of acromioclavicular joint at his right shoulder with tenderness at the anterior aspect of the rotator cuff. There was a 19 cm scar inferior to the patella of his right shin.
5. Dr Sam Perla and Dr Tony Antoun provided a report 17 January 2023 detailing the claimant's diagnosis was then a soft tissue injury to the right lower leg with a possible AC joint shoulder injury.
6. Consultant musculoskeletal physiotherapist Dr Andrew Leaver performed an independent physiotherapy assessment on 7 September 2023. The report noted that the claimant 'reportedly sustained injury of his right knee, right hand and right AC joint.'

1. The claimant attended Royal Prince Alfred Hospital on 26 October 2022. The principal diagnosis reported in the discharge referral, dated 28 October 2022, included a full thickness skin laceration to the right pre-tibial area.
2. On 4 November 2022, Dr David Leaf referred the claimant to the Barangaroo Orthopaedic and Sports Injury Clinic reporting that the claimant was suffering from a right AC joint disruption, right shoulder stiffness and right knee pain and stiffness.
3. Dr Leaf's initial certificate of capacity dated 7 November 2022, noted: '1 Deep laceration + nerve damage R leg 2 R ACJ + Disruption'.
4. Dr Leaf's certificate of capacity 11 November 2022 diagnosed right knee, right hand, and right AC joint injury.
5. Dr Leaf's letter to Dr Sam Perla, dated 17 January 2023, reported that the claimant 'has two injuries from the MBA of 26/10/22' including a grade 3 dislocation of the right acromio-clavicular joint; and a right knee laceration with de-gloving.
6. MyHealth Barangaroo's clinical notes as of 27 January 2023, showed an active history of lumbar back pain, lumbar disc prolapse and AC joint disruption. The notes refer only to the right leg, right knee, and right AC joint injuries.
7. On 9 March 2023, an Allied Health Recovery request listed a diagnosis of: '1. R) Grade III Acromioclavicular Separation/Deconditioning; 2. R) Shin Degloving/deconditioning +/- central sensitization of lower limb'.
8. On 12 October 2023, Mr Daniel Camiel reported on findings in relation to the shoulder dynamometry, the claimant's right shoulder, and shin.
9. On 5 February 2024 Associate Professor Mark Haber performed a right shoulder arthroscopic rotator cuff repair.
10. Dr Leaf's certificate of capacity dated 26 March 2024, noted 'post op L side shoulder injury symptomatic' as a factor affecting the claimant's recovery.
11. On 29 May 2024, an Allied Health Recovery request listed the claimant's diagnosis of right shoulder arthroscopic rotator cuff repair and right shin degloving and deconditioning.
12. Associate Professor Haber's further reports on subsequent scans confirm the presence of left shoulder rotator cuff changes including tears.
13. Associate Professor Haber's report dated 29 April 2024 recommends left shoulder surgery and opines that this accident 'was a substantial contributing factor to the current condition and need for surgery'.
14. On 7 June 2024 Associate Professor Haber performed a left shoulder arthroscopic rotator cuff repair.

1. The claimant submitted an undated application for personal injury benefits, the claimant alleged accident-related injuries to his hip, shoulder and ligaments resulting from a landing on his right side. He also reported a degloving of the right shin.

1. There is no history before the accident supporting the claimant having any injuries to the referred body parts.
2. The claimant submitted that Medical Assessor Kuru did not engage with the causation test; did not provide reasons for finding that the accident did not contribute to the left shoulder injury; nor engaged with the medical evidence and the accident circumstances.
3. Medical Assessor Kuru did not engage with the opinion in Dr Haber's letter dated

1. The insurer made submissions in the permanent impairment and treatment disputes on

14 November 2023, 31 July 2024, 23 August 2024, and 18 October 2024. The most recent submissions addressed the claimant's application for review and refuted that Medical Assessor Kuru made any errors. 2. Relevantly the earliest submissions do not dispute liability for the referred injuries to assess permanent impairment, but stated the right shoulder was at that stage not stable enough to assess permanent impairment. 3. The submissions dated 31 July 2024 referred to a treatment dispute in relation to left shoulder surgery. The insurer submitted that the requested left arthroscopic rotator cuff repair (which had already taken place) was not reasonable and necessary in the circumstances and was not related to the accident. 4. The onus of proof pursuant to s 5D of the Civil Liability Act 2002 (NSW) is on the claimant to satisfy the Panel that the accident caused the injury. The claimant did not establish a sufficient causal link between the accident and the claimant's left shoulder condition as required under s 3.24(2) of the Act. 5. Apart from Associate Professor Haber the treating medical records do not record a left shoulder diagnosis that might have resulted from the accident. 6. Associate Professor Haber's opinion that the subject accident was 'a substantial contributing factor' to the left shoulder condition and the need for surgery is an outlier. 7. Associate Professor Haber did not provide any further explanation as to how the left shoulder condition was caused by, or related to, the accident. 8. Associate Professor Haber did not explain why a severe condition being a partial to almost full thickness rotator cuff tendons tear was not identified by treating medical practitioners or why the claimant did not mention it earlier. 9. In the insurer's supplementary submissions dated 23 August 2024 soon before Medical Assessor Kuru's examination addressed permanent impairment. 10. Although the claimant told Dr Keller he had symptoms to his right leg and left lower limb, Dr Keller and Dr Wallace only diagnosed the right leg laceration. 11. Dr Wallace assessed the right shin scar contributed 2% to the permanent impairment, while the right shin sensory loss has contributed 0%. He diagnosed 5% permanent impairment in the right shoulder. 12. Dr Keller reported the right knee laceration had healed. 13. The Panel noted that in submissions in response to the Panel's directions after its first meeting that the insurer agreed with the claimant that the review should include a fresh assessment of permanent impairment, including the left shoulder.

1. Mr Williams attended the appointment at the Commission's medical suites on

1. This 33 year old claimant was hit by a car while riding his motorcycle in the left lane when a car turned in front of him from the right lane. He fell from his bike with his left leg pinned under the motorcycle.
2. There was no head injury nor loss of consciousness. He was taken by ambulance to Royal Prince Alfred Hospital where he had surgical debridement of a degloving wound to his right leg. He had significant pain in his right shoulder with AC joint dislocation and some bruising of his right hip.

History of symptoms and treatment following the accident

1. He had ongoing pain and stiffness of his right shoulder and was referred to Dr Harper who recommended non operative treatment. The claimant then he sought a second opinion from Associate Professor Haber who recommended surgical intervention on the basis of there being a partial thickness rotator cuff tear.
2. The claimant elected to have conservative management but eventually had arthroscopic right rotator cuff repair on 5 February 2024. Although this eased the severe pain in his right shoulder, he still had persistent difficulty with heavy lifting and overhead activity with residual pain in the right shoulder with noticeable deformity.
3. He subsequently developed pain in his left shoulder and had arthroscopic rotator cuff repair of the left shoulder in June 2024.

1. He continues with a physiotherapy directed exercise program and is taking Palexia for pain relief and has review by his local doctor as required and his shoulder specialist as referred.

1. At the time of the accident, he was a laboratory technician with National Measurement Institute until December 2023 but is now working at UTS in the Mascot laboratory doing nanotechnology/atomic force microscopy which is high resolution work.
2. He is presently studying Myosin Muscle Strands at the molecular level.
3. He has a BSC in Nanotechnology.
4. His current work restriction is that he has reduced capacity for work in that he is working less than 40 hours/week. His previous employments had been as a field technician for Nascence Entertainment and Whitehead Cooper Williams for three years as a bookkeeper.

1. On examination at the Commission's medical suites on 17 October 2025 he was 191 cm tall and weighed 114 kg.
2. There was obvious deformity of his right shoulder with subluxation of the AC joint and wasting of the right shoulder girdle and some drooping of the shoulder.
3. There was difficulty with elevating his right arm with active abduction 130 degrees, forward flexion 150 degrees, extension 40 degrees, adduction 30 degrees, external rotation 70 degrees and internal rotation 40 degrees and shoulder girdle power on the right was grade four out of five and there was tenderness at the subluxed AC joint. There was tenderness in the biceps groove.
4. He had a symmetrical range of motion of his cervical spine and the supraclavicular brachial plexuses were non-tender and there was no tenderness of the facet joints. There was mild tenderness of the trapezius muscles and the cervical foraminal compression test and brachial plexus stretch tests were negative. There was no neurological deficit in either upper limb. His reflexes were symmetrical and his grip strength, thenar power and intrinsic power of both hands was grade five out of five.
5. There was 1 cm of wasting of wasting of his left arm, 10 cm above the elbow at 35 cm, compared with 36 cm on the right and no wasting of either forearm at 30 cm bilaterally,

10 cm below the elbow crease. 6. There was stiffness on elevation of his left shoulder with active abduction 140 degrees, forward flexion 160 degrees, extension 40 degrees, internal rotation 50 degrees, external rotation 80 degrees and adduction 40 degrees. His arthroscopic portals were visible but non-tender and his shoulder girdle power on the left was grade four plus out of five. There was no winging of either scapula on resisted protraction. 7. On examination of his lower extremities there was a circumferential scar below his knee of some 17cm which was healed with some adherence and hypertrophic change with colour change and he reported a small area of sensory change distal to the scar in the distribution of the saphenous nerve. His sensory loss descended in the upper pre-tibial region below the scar and was grade four out of five. 8. The range of motion of his right knee was 0 degrees through to 120 degrees and that knee was stable and the range of motion of his left knee was 0 degrees through to 120 degrees and that knee was stable. There was 2 cm of residual swelling of his right leg with the calf measuring 45 cm and on the left 43 cm. There was no wasting of either thigh measuring

50 cm, 15 cm above the patella. 9. His normal gait was satisfactory with a very slight limp on toe walking and heel walking was satisfactory and his squat test was associated with some pain in the right knee on arising from the squat position. 10. There was no ligamentous laxity of the knee nor retropatellar rub.

1. His investigations include an MRI of the right shoulder on 12 December 2022 which showed a complete rupture of the superior and inferior AC joint capsule of ligaments and a complete rupture of the coracoclavicular ligaments.
2. There was no evidence of rotator cuff tear however ultrasound of the right shoulder on

4 December 2023 showed a partial thickness supraspinatus tear and ultrasound the left shoulder on 25 March 2024 showed a partial to almost full thickness supraspinatus tear. 3. The operative findings at arthroscopy of the right shoulder on 5 February 2024 at Macquarie University Hospital showed a rotator cuff tear which was repaired with bony anchors and he was then managed in a sling for six weeks and following surgery, was having physiotherapy. 4. A progress ultrasound of the left shoulder on 29 April 2024 showed an almost full thickness supraspinatus tear and an ultrasound of the right shoulder done on the same date showed an intact supraspinatus repair.

1. In summary this claimant was involved in a significant motorbike accident when a car turned in front of his motorcycle and he fell sustaining a degloving injury to his right leg below the knee and AC joint dislocation of his right shoulder and subsequent supraspinatus tear of the right shoulder. He subsequently required arthroscopic debridement of the right shoulder with rotator cuff repair on 5 February 2024 followed by physiotherapy treatment.
2. There was no objective evidence that the claimant suffered any injury to his cervical spine or left shoulder at the time of the accident and a CT of the cervical spine done at RPAH showed no abnormality.
3. The claimant told me today that when he was having physiotherapy for the right shoulder, the physiotherapist had been treating both shoulders in the convalescent period within six weeks of the subject accident.
4. He had an ultrasound guided cortisone injection of the right shoulder without sustained benefit in May 2023 and it was not until later ultrasounds was rotator cuff tear demonstrated in the right shoulder as well as subsequently in the left shoulder that required rotator cuff repair.
5. When he was assessed by Dr Ray Wallace, it was reported in the IME report for QBE on

12 August 2024 that claimant had noted left shoulder pain in December 2022, some two months post injury, for which he was referred for physiotherapy. 6. The treating surgeon, Dr Haber mentioned the left shoulder in April 2024, some 18 months post injury and then arranged an ultrasound examination of the left shoulder which was carried out on 29 April 2024, which showed a partial supraspinatus tear and he subsequently had arthroscopic debridement of the left shoulder with rotator cuff repair on 7 June 2024. He was discharged with his arm in a sling and then continued with physiotherapy treatment. 7. Medical Assessor Kuru's certificate dated 7 September 2024 noted that he felt that there was not a causal nexus between the accident and the appearance of symptomatic condition in the left shoulder.

1. The impairment for the post traumatic stiffness of the right shoulder is from Pie Charts 38, 41 and 44, Pages 43 to 45, AMA IV, 10% upper extremity impairment. Although there is AC dislocation which cannot be reduced completely which is from Table 23, Page 60 of AMA IV, yielding 40% of the AC joint which is 40% of 25% UEI from Table 18, Page 58, thereby giving 10% UEI. However, under the Guidelines this cannot be combined in the presence of restricted range of motion so the right shoulder is assessed as 6% permanent impairment.
2. As for the scar on his right leg; it is clearly visible and adherent and shows colour contrast with pigmentary change and is hypertrophic. It is visible in summer clothing and readily localised by the claimant. That scar assessed from TEMSKI Table 6.18, Page 136, 2% permanent impairment.
3. For the sensory loss in the distribution of the saphenous nerve is assessed from Figure 59, Page 63 and Table 68, Page 89, AMA IV, 25% of 1%, giving 0% permanent impairment.
4. The impairment for his cervical spine is from Table 73, Page 110, DRE I, 0% WPI.
5. This gives a total from the Combined Values Chart of 8% permanent impairment.
6. It was not clear from the documentation that there was a causal nexus between the accident and the left shoulder injury except for on enquiry, the claimant's response during the examination was that the physiotherapist was treating that shoulder within six weeks of the accident and Dr Haber was aware of it within two months of the accident.
7. The claimant feels that he did not report it at the time but was aware of it subsequently, as noted in the above paragraph. There were no subsequent post - accident injuries. There may have been overuse while favouring the significant right shoulder injury.
8. If the Panel accepts the nexus between the accident and the left shoulder it would be assessed from Pie Charts 38, 41 and 44, as 5% upper extremity impairment which equates to an additional 3% permanent impairment.
9. Dr Ray Wallace's report notes that the claimant claims to have noted the left shoulder pain in December 2022, some two months post injury and today, when enquiry was made of the claimant, he said he was having physiotherapy for that shoulder as well, although there was no mention of the left shoulder condition by his treating surgeon until April 2024. There did not appear to be sufficient physiotherapy notes confirming treatment of his left shoulder, however, these may be incomplete.
10. The physiotherapist, Esham Popal, was managing the claimant and did note on 25 July 2023 that the claimant was having a functional strength maintenance program throughout his physio sessions and he was booking in for the strength and fitness training for his injury for his right leg and his GP had recommended access to a gym to continue with the physiotherapy.

1. The claimant presented in a straightforward manner without embellishment. He was of the reasonable belief that the left shoulder was being treated by the physiotherapist just eight weeks after the accident.
2. He was also consistent in respect of his symptoms in the other referred body parts.

1. The determination as to permanent impairment is made in accordance with the AMA 4 Guides and the Guidelines version 10. Permanent impairment is defined in the AMA 4 Guides (p 315) as follows:

"Permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment. A permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment."

1. It is now over three years since the accident. The claimant's injuries are stable so his permanent impairment is considered to be unlikely to change substantially by more than 3% in the next year with or without medical treatment.

1. The Panel met again on 4 November 2025 to discuss Senior Medical Assessor Dixon's examination report.
2. The Panel decided to adopt Senior Medical Assessor Dixon's examination report with its conclusions as evidence.

1. The Panel considered that the mechanism of the accident was sufficient to cause all of the referred injuries including the left shoulder. It was noted that some of the injuries' symptoms had resolved since Medical Assessor Kuru's assessment.
2. In respect to the left shoulder the motor accident need only be a material contribution to the need for treatment: AAI Limited v Phillips.[2] That case considered the words "whether any such treatment relates to the injury caused by the motor accident" where they appear in s 58(1) of the Motor Accidents Compensation Act 1999. Those words are almost identical to the wording in Schedule 2 of the MAI Act.
3. The Panel considered the insurer's argument that Associate Professor Haber's opinion was an outlier and did not explain why the left shoulder condition had been recorded earlier. The claimant's explanation that the left shoulder had been treated soon after the accident and the knowledge that clinicians' note taking can vary in detail from practice to practice satisfied the Panel that it should give weight to the claimant's explanation.
4. The Panel concluded that it was possible that the left shoulder condition could have become symptomatic because the claimant had to switch reliance to the left when the dominant right shoulder was injured.
5. The issues of consistency of complaint about the left shoulder was noted, as well as the accident mechanism being such that it was also medically possible the accident could have injured the left shoulder traumatically as well.
6. The claimant's complaints were contemporaneous enough to satisfy the Panel that the accident caused the referred injuries.
7. The Panel found the accident materially contributed to the left shoulder because it accepted the claimant's explanation that he had been treated in that body part soon after the accident.
8. In respect to the insurer's submissions on including the left shoulder when assessing permanent impairment, the Panel considered that the examination findings, the persistence, and the severity of the claimant's traumatically injured right shoulder condition and the need for the left shoulder to compensate for the right shoulder made it probable that the accident caused conditions in both shoulders.
9. Further, the Panel considered that it was keeping with the object of the MAI Act, especially

s 1.3 (2)(g) encourage the early resolution of motor accident claims and the quick, cost effective and just resolution of disputes to deal with the left shoulder's permanent impairment in this review.

Reasonable and necessary in the circumstances

1. Mr Williams must establish that the treatment is both "reasonable and necessary." This is a more onerous test than the NSW workers compensation legislation which requires a worker to establish that the treatment is "reasonably necessary."
2. Workers compensation jurisdiction decisions provide some guidance though as when Grove J stated in Clampett v WorkCover Authority of NSW:

"22 I return to the expression 'reasonably necessary' in s60. Dictionaries stipulate that 'necessary' has relevant definition as 'indispensable, requisite, needful, that cannot be done without' - (Shorter) Oxford English Dictionary, 3rd Ed and 'that cannot be dispensed with' - Macquarie.

23 The essential issue is what effect flows from conditioning such qualities as 'reasonably'. The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word 'necessary' if it stood alone. In order to contemplate such moderation, it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker's home, having regard to the nature of the worker's incapacity, is reasonably necessary. In contemplation of what might be "reasonably necessary" there is this statutory obligation specifically to have regard to the nature of the worker's incapacity. It provides emphasis towards moderating the meaning of 'necessary' in this context."[3]

1. This draws the distinction with motor accidents legislation which requires two steps of considering whether there is a rationale for the treatment related to injury suffered in the subject accident; then addressing whether it is necessary.
2. However, key decisions address the criteria of reasonableness in the context of the workers compensation jurisdiction. The late learned Deputy President Bill Roche listed these relevant considerations in Diab:[4]

the actual or potential effectiveness of the treatment, and

the acceptance by medical experts of the treatment as being appropriate or likely to be effective."

1. Decision makers in the Commission's Motor Accident Division have applied those paragraphs of Diab as relevant considerations, which assist to establish whether proposed treatment is reasonable and necessary.[5]
2. The words "in the circumstances" in the context of whether the treatment is "reasonable and necessary" must refer to the claimant's particular circumstances. This follows Schedule 2 of the MAI Act which refers to treatment "provided or to be provided to the claimant".
3. The test of "reasonable and necessary in the circumstances" does not direct attention to the relationship between the accident and the treatment. That issue arises from considering whether treatment "relates to the injury caused by the accident."
4. The insurer does not provide detailed submissions on whether the proposed treatment is reasonable and necessary.
5. The cost of the treatment was included in the evidence. It was substantial, as it involves surgery in private hospital, time off work and rehabilitation.
6. Noting Senior Medical Assessor Dixon's opinion - based on his clinical expertise as an orthopaedic surgeon about the treatment - it was reasonable and necessary to obtain improvement as conservative treatment did not assist his recovery.
7. Considering whether the benefits of surgery exceeded the risks of failure and an adverse outcome, the weight goes towards the surgery because there was improvement.
8. The Panel agreed that these points were in favour of surgery.
9. Noting the claimant's circumstances, the Panel finds the claimant has established that Associate Professor Haber's surgery was reasonable and necessary.

The Panel found the following injuries WERE caused by the accident:

• right shoulder - acromio-clavicular joint dislocation, complete rupture of the superior and inferior AC joint capsule ligaments, complete rupture of the coracoclavicular ligaments, low grade tears and tendinosis of the lateral and posterior deltoid muscle fibres at the clavicular insertion, partial rotator cuff tear of the supraspinatus, musculo-ligamentous strain injury, soft tissue injury;
• left shoulder - supraspinatus tear;
• left leg - musculo-ligamentous strain injury, soft tissue injury;
• right leg - degloving injury, full thickness skin laceration of the right pre-tibial area, musculo-ligamentous strain injury, soft tissue injury;
• cervical spine - musculo-ligamentous strain injury, soft tissue injury, and
• skin - scarring - right leg, right knee.

1. All of the calculated impairment is the outcome of the accident and there is no

1. The degree of permanent impairment of the injuries caused by the motor accident was calculated as follows:

* %WPI = percentage whole person impairment/permanent impairment

1. For these reasons, the Panel concludes that the accident has caused injuries which create the need for treatment and the proposed treatment was reasonable and necessary. This is a different decision to Medical Assessor Kuru.
2. The Panel revokes Medical Assessor Kuru's certificate dated 7 September 2024 regarding causation and whether medical treatment was reasonable and necessary.
3. The Panel also found the permanent impairment arising from injuries caused by this accident is different to that found in Medical Assessor Kuru's assessment certificate dated

7 September 2024. 4. Accordingly, the Review Panel revokes that certificate and issues a new permanent impairment certificate. 5. The Review Panel found that the motor accident caused the following injuries and assessed them as giving rise to 11% permanent impairment: * right shoulder - acromio-clavicular joint dislocation, complete rupture of the superior and inferior AC joint capsule ligaments, complete rupture of the coracoclavicular ligaments, low grade tears and tendinosis of the lateral and posterior deltoid muscle fibres at the clavicular insertion, partial rotator cuff tear of the supraspinatus, musculo-ligamentous strain injury, soft tissue injury; * left shoulder - supranspinatus tear; * left leg - musculo-ligamentous strain injury, soft tissue injury; * right leg - degloving injury, full thickness skin laceration of the right pre-tibial area, musculo-ligamentous strain injury, soft tissue injury; * cervical spine - musculo-ligamentous strain injury, soft tissue injury, and * skin - scarring - right leg, right knee 6. The accident caused injuries with a permanent impairment greater than 10%.

[2] [2018] NSWSC 1710 at [29] (Phillips).

[3] [2003] NSWCA 52 (Clampett) at [22]-[23], Meagher & Santow JJA agreeing.

[4] Diab v NRMA Ltd [2014] NSWWCCPD 2 (Diab) at [88].

[5] See Sarwary v Allianz Australia Insurance Limited [2023] NSWPICMP 125.