DETERMINATION OF REVIEW PANEL	
	
CITATION:	Insurance Australia Limited t/as NRMA Insurance v Panuganti [2023] NSWPICMP 203	
		
CLAIMANT:	Diwakar Panuganti	
		
INSURER:	Insurance Australia Ltd t/as NRMA	
		
REVIEW Panel	 	
		
PRINCIPAL MEMBER:	John Harris	
		
MEDICAL ASSESSOR:	Michael Couch	
		
MEDICAL ASSESSOR:	Wing Chan	
		
DATE OF DECISION:	11 May 2023	
		
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; the claimant suffered injury from a rear end collision; the claimant suffered various injuries; claimant re-examined; injuries to cervical and lumbar spine found to be threshold injuries; right shoulder; absence of right shoulder complaint for 14 months; modest rear end collision unlikely to injure shoulder; rotator cuff pathology explained by age; finding made that right shoulder not injured; Held – claimant suffered threshold injuries to cervical and lumbar spine; original assessment revoked.	
DETERMINATIONS MADE:  	Medical Assessment – Threshold injury
Review Panel Assessment of Threshold Injury
Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017
The Review Panel revokes the certificate dated 24 October 2022 and certifies that the injuries caused by the motor accident are THRESHOLD INJURIES for the purposes of the Motor Accident Injuries Act 2017.	

REASONS
BACKGROUND 
1.	Mr Diwakar Panuganti (the claimant) alleges that he suffered injury in a motor accident on 1 March 2019 when the insured vehicle failed to stop and collided with the rear of the claimant’s vehicle (the motor accident). 
2.	An application for personal injury benefits was subsequently made in late May 2020.
3.	The insurer is liable to pay to Mr Panuganti any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the motor accident. 
4.	The issue presently in dispute are whether Mr Panuganti’s physical injury is classified as a “threshold injury” within the meaning of the MAI Act. Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
5.	A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
ORIGINAL MEDICAL ASSESSMENT
6.	The dispute was referred to Medical Assessor Herald who issued a Medical Assessment Certificate dated 24 October 2022 (the Medical Assessment Certificate). Medical Assessor Herald concluded that Mr Panuganti sustained soft tissue injuries to the cervical and lumbar spine and right elbow which are a minor injury for the purposes of the MAI Act and a rotator cuff tear to the right shoulder which was a non-minor injury.
7.	The Medical Assessor’s examination findings showed “features of a rotator cuff tear” of the right shoulder. The examination findings included tenderness over the greater tuberosity and a palpable rotator cuff defect. The Medical Assessor observed grade 4 power in the supraspinatus muscle, a positive belly press test and positive signs of biceps tendinitis.
8.	The Medical Assessor’s reasons on causation of injury to the right shoulder were:
“Diagnosis and reasons 
He has features of aggravation of underlying cervical and lumbar spondylosis with radiculopathic symptoms to the right upper limb and right lower limb. He does however have associated with that features of a rotator cuff tear of his right shoulder. His right elbow had a late presentation of olecranon bursitis which has subsequently resolved and does not seem to be related to the motor vehicle accident.”
9.	Whether a person has only suffered threshold injuries as a result of a motor vehicle accident affects the entitlement to both statutory benefits and damages. 
10.	Statutory benefits by way of loss of earnings and treatment and care expenses cease after 26 weeks if “the person’s only injuries resulting from the motor accident were threshold injuries”. An injured person otherwise cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were threshold injuries”.
AMENDMENTS TO MINOR INJURY 
11.	The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2023 with various amendments commencing on 1 April 2023. From 1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”. 
12.	The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury. 
13.	The Medical Assessment Certificate was issued when the relevant term was “minor injury” which, because of the amendment, is now described as a threshold injury. The submissions were filed when the term was “minor injury”. Accordingly, we have used the terminology used by the parties and the original Medical Assessor for the legislation then in force. 
14.	Accordingly, an injury which does not fall within the definition of a threshold injury (“a non-threshold injury”) means that a claimant has an entitlement to claim damages and, subject to other exclusions, receive statutory entitlements beyond either the 26 week or 52-week limitation period.
THE REVIEW
15.	The application for referral of the medical assessment to a review panel was made by the insurer within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.
16.	The President’s delegate referred the medical assessment to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.
17.	Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new
review provisions apply. 
18.	The review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Person Injury Commission (the Commission).
19.	Part 5 of 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.
20.	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.
21.	The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned. 
22.	The parties filed respective bundles of documents for the Panel’s consideration. 
23.	On 20 February 2023 the Panel issued the following further direction.
“The Review Panel notes the findings by Medical Assessor Herald which found that the motor accident caused a non-minor injury to the right shoulder and the other injuries were minor injuries.
The issue in dispute raised on the submissions is limited to whether the right supraspinatus tear was caused or aggravated by the motor accident. 
The parties are to advise by close of business, 24 February 2023:
1.	Whether the Panel’s analysis of the only issue for determination is correct; and
2.	Whether the Panel can determine the matter on the papers.”
24.	The claimant agreed that the only issue for determination was whether the motor accident caused a non-minor injury to the right shoulder.
25.	The parties opposed the matter being determined on the papers.
26.	The insurer submitted that it was not appropriate for this matter to be determined on the papers. A physical examination was required in the absence of any radiological investigations to express an opinion as to causation. Otherwise, the insurer re-iterated that there was a 15-month delay in symptoms, such as that a physical examination is appropriate to determine whether any presentation is consistent with the delayed onset of symptoms.
27.	The claimant confirmed that the principal issue in dispute was as per the Panel's directions dated 20 February 2023. The claimant submitted that the review application was accepted by the President's delegate on the basis that the President's delegate was satisfied that there was reasonable to cause to suspect that the medical assessment was incorrect in a material respect and, as such, the claimant's minor injury dispute should be determined following re-examination of the claimant. The claimant agrees that the matter should proceed to re-examination for determination of whether the claimant sustained minor or non-minor injuries.
28.	The claimant otherwise submitted that Medical Assessor Herald, on page 5, paragraph 14 of his report, proposed MRI scans and X-ray scans of the claimant's cervical spine, lumber spine and right shoulder to determine future course of treatment and the claimant queries whether these scans could assist the Panel in determining the dispute.
29.	The Panel does not organise the claimant’s future course of treatment and its powers are limited by the express provisions under the MAI Act, particularly to undertake a new assessment (s 7.26(6)) and to either confirm or revoke the certificate (s 7.26(8)). 
30.	The Review Panel does not have any statutory power to organise and collect evidence which is in the domain of the parties, although at times, Panels request the parties to provide relevant materials to assist in its determination. Further, a Panel is not required to respond to a parties’ request as to how that party presents their case.
STATUTORY PROVISIONS
31.	A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “minor psychological or psychiatric injury”. Within these reasons we have referred to either a soft tissue injury or threshold injury interchangeably, although the latter is a wider concept as it also includes a minor psychological or psychiatric injury. 
32.	Section 1.6(2) of the MAI Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
33.	Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines minor injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder.
34.	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 motor accident is a minor injury for the purposes of the Act. Version 9 of the Guidelines commenced on 15 January 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 minor 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 minor psychological or psychiatric injury caused by the motor accident. 
5.4 	Diagnostic imaging is not considered necessary to assess minor injury.
5.5 	A diagnosis for the purpose of a minor 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 minor injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)	a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)	a review of all relevant records available at the assessment
(c)	a comprehensive description of the injured person’s current symptoms
(d)	 a careful and thorough physical and/or psychological examination
(e)	diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
35.	Clauses 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a minor injury. An injury resulting in radiculopathy will not be classified as a minor injury. 
36.	Clause 5.7 of the Guidelines provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”

37.	Radiculopathy is defined in cl 5.8 of the Guidelines as follows:
“Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a)	loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b)	positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c)	muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d)	muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e)	reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
38.	Neurological symptoms that do not meet the assessment criteria for radiculopathy means that the injury will be assessed as a minor injury.
39.	Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act. 
SUBMISSIONS
Claimant’s submissions dated 4 April 2022 
40.	The claimant filed a short submission alleging that he suffered injuries in the subject motor accident to:
-	cervical spine including radiculopathy;
-	right shoulder strain;
-	right elbow strain;
-	lumbar spine including radiculopathy, and
-	psychological injury. 
41.	The claimant noted that it was “not appropriate” for the solicitor or claims officer to make submissions upon the diagnosis of injury and relied upon the “medical evidence obtained to date” which demonstrated “the injuries and diagnosis of same”. 
Insurer’s submissions dated 26 April 2022
42.	The insurer submitted that the initial certificate of capacity followed an assessment by telehealth, and it was difficult to see how radiculopathy was diagnosed without a proper neurological examination. Dr Lim did not record any specific symptoms of radiculopathy and it is uncertain how the diagnosis was made. 
43.	The claimant was and is under the care of Dr Narayanan, nephrologist since 2016 with respect to pre-existing renal disease. Those reports list symptoms which do not relate to the motor accident. 
44.	The insurer noted that the claimant had neck and back problems since late 2004. The motor accident was mentioned to the general practitioner on 3 March 2004 in the context of neck and back pain. These conditions were not mentioned again until November 2019 when physiotherapy was recommended. 
45.	It was submitted that any neck injury was of short duration and a soft tissue injury.
46.	The claimant did not injure the right shoulder as it was not mentioned until it was referenced in the certificate of capacity dated 19 May 2020. Alternatively, the injury was only a strain and did not satisfy the meaning of non-minor injury.
47.	The insurer submitted that the claimant had a pre-existing lumbar spine condition. Whilst the back was mentioned on 33 March 2019, it was not mentioned again until 11 November 2019. At that time there was no reference to the motor accident.
48.	The claimant advised Dr Narayanan on 7 March 2019 that he had “no particular symptoms to report”.
49.	Despite the reference by Dr Lim to radiculopathy, there is no evidence that the claimant experienced two objective signs as defined in the Guidelines. Further, there is no evidence of injury to the nerves of a complete or partial rupture of tensons, ligaments, menisci or cartilage. Any injury to the lumbar spine was a minor injury. 
Insurer’s submissions dated 14 November 2022
50.	These submissions were filed seeking a review of the Medical Assessment. The insurer noted that the claim form was lodged on 11 June 2020 and the first record of right shoulder symptoms post-accident was in May 2020.
51.	The insurer otherwise submitted that there were various errors made by the Medical Assessor in finding that the right shoulder was injured in the motor accident and that the injury was non-minor. 
MATERIAL BEFORE THE REVIEW PANEL
Pre-accident medical records
52.	The claimant’s pre-accident medical history includes various references to the back (1 November 2016, 9 January 2017, 21 May 2017), right shoulder (9 January 2017, 18 April 2017) and neck (2004 and 2007).
53.	On 26 February 2019 Dr Massoud noted “low back pain … for long time”.
54.	The claimant otherwise has a long history of Type II diabetes since the late 1990’s.
Contemporaneous evidence
55.	The claimant attended his general practitioner on 3 March 2019. The doctor recorded a history of a motor accident “last Friday” and that the claimant had “pain of neck and lower back”.
56.	Subsequent attendances with the general practitioner on 20 May 2019, 15 July 2019, 16 July 2019, 23 July 2019 and 10 September 2019 do not mention either the motor accident and/or back and neck pain. Right shoulder symptoms are not mentioned in any medical record throughout 2019.
57.	On 8 November 2019 the general practitioner noted back and neck pain and that the claimant required physiotherapy. 
58.	The claimant first attended “Workers Doctors” on 15 May 2020. A certificate of capacity dated 19 May 2020 noted the claimant was initially seen on 15 May 2020. The doctor diagnosed cervical spine radiculopathy, right shoulder strain, right elbow strain and lumbar strain radiculopathy. The precise signs for the “radiculopathy” are not set out.
Medical evidence
59.	Various consultation with Dr Naravanan, renal specialist post-accident does not refer to the injuries alleged to have been suffered in the motor accident. Specifically, on 7 March 2019 the claimant advised Dr Naravanan that he “has been well with no particular symptoms to report”.
Radiology
60.	An X-ray and ultrasound of the right elbow dated 19 February 2021 showed an olecranon bursitis with no joint effusion.
Motor accident material
61.	The accident was referred to police on 3 March 2019. The police were advised that the claimant and his wife sought medical treatment for a back injury.
62.	Photographs of the claimant’s vehicle show damage to the rear passenger side.
Claim form
63.	The claim form is dated 27 May 2020 and alleges injuries to the neck, right arm, right shoulder, right elbow, abdomen, back, both legs and nervous shock. The mechanism of the motor accident is confirmed in the claim form, that is the claimant was stationary at red lights and when his vehicle was struck by the insured vehicle.
REEXAMINATION
64.	The examination report is as follows:
“Mr Diwakar Panuganti came by taxi and he attended the assessment by himself on the 20 April 2023. The interpreter, Mr Dipakkumar Bhatt, was present for the entire duration of the assessment. Medical Assessor Couch, tested positive for COVID-19. To expedite the assessment and not delay the matter, Assessor Couch participated in the assessment via telephone link for the duration of the assessment. Assessor Couch’s positive test for COVID-19 and his participation by telephone was explained to Mr Panuganti and the interpreter.
History of the accident
Mr Panuganti stated that the accident occurred in the night at about 11.30 pm. He was driving a Toyota Prado vehicle which was stationary waiting to make a right-hand turn. His Toyota Prado was hit in the rear, passenger side, by another vehicle. He said that after the collision, he had pain in his chest and placed his left hand on the right pectoral and right supraclavicular area of his chest, pain in the back of his neck, pointing to the midline of the back of his neck and the right suprascapular area of his upper back. In addition, he said that he had localized pain in the middle of his lower back and pain in the right hip area. He said he had no symptoms in his left shoulder, left hip, left knee and both feet after the collision.
No police or ambulance attended the scene of the accident. Assessor Chan said to Mr Panuganti that the Panel members had viewed the photographs of the damage to the rear passenger side of his Toyota Prado. Mr Panuganti was able to drive home in his Toyota Prado. Mr Panuganti did not present himself to any hospital after the collision.
Mr Panuganti said he consulted his GP at Minto Mall Medical Centre the day after the motor vehicle accident. He complained to his GP that he had pain in the right upper pectoral and right shoulder pointing to the right supraclavicular area of his right chest, the right suprascapular area of his upper back, in the midline and base of the cervical spine. He also complained to his GP that he had localized pain in the lower back, the right hip area and the anteromedial and medial aspect of his right knee. Mr Panuganti did not complain of any symptoms in his right elbow after the subject accident. He said his GP prescribed him analgesic and referred him to have x-rays. 
Assessor Chan brought to Mr Panuganti’s attention the clinical notes of his GP on the 3.3.19, the first consultation that he had after the subject accident. The clinical notes of the 3.3.19 stated that he had complained of ‘pain of neck and lower back’, and the examination findings were ‘Neck tender, restriction present, L3/L4/L5 tender and restricted’. Assessor Chan said to Mr Panuganti that there was no mention in the GP’s clinical notes that he had complained of pain in his right shoulder or the right knee. He replied that he had complained to his GP that he had pain in his right shoulder- pointing to the right suprascapular and supraclavicular area. 
The clinical notes of his GP on the 3.3.19 stated that x-ray of the cervical and lumbar spine were ordered by his GP, and his GP had not referred him to have any imaging or x-ray of the right shoulder. 
Assessor Chan said to Mr Panuganti after the 3.3.19 consultation, Mr Panuganti saw his GP at Minto Mall Medical Centre on the 20.5.19, 16.7.19, 23.7.19, 10.9.19 and 19.9.19, and there was no mention in the GP’s clinical notes that he had any complaints in his neck, lower back, right shoulder and right knee in all these subsequent consultations. Mr Panuganti did not comment about his neck or lower back being not mentioned in the clinical notes but said that he did mention to his GP about his right shoulder and right knee pain. 
Assessor Chan told Mr Panuganti that it was not till the 8.11.19 consultation, that his GP’s clinical notes mentioned that he had ‘Back pain, Neck pain, stiffness; Need Physio, booked for care plan’. Mr Panuganti said he did not have physiotherapy at that time as he could not afford to pay for the physiotherapy.
The Panel noted that Panuganti consulted Dr Eric Lim, by telehealth on 19.5.20. Assessor Couch asked Mr Panuganti how he came to see Dr Lim at Workers Doctors. He replied that a friend of his worked in the Workers Doctors clinic where Dr Lim is and recommended him to see Dr Lim. The first time a record complaint complained about his right shoulder and right elbow pain was mentioned was in Dr Lim’s clinical notes of the 15.5.20 telehealth consultation (not a video consultation).
Right clavicle
With regard to his right clavicle, Mr Panuganti added that he had pain and swelling in the medial aspect of the right clavicle, pointing to the swelling at the right sternoclavicular area of his chest. He alleged that the swelling had started after the subject accident. 
Mr Panuganti was reviewed by Dr Calvache-Rubio(by video call) of the Workers Doctors on 3.7.20, 22.7.20, 11.8.20. The Panel noted that the clinical notes of Dr Calvache-Rubio on the 3.7.20 stated the examination findings (by video call) were ‘R) shoulder pain discomfort, Restricted movement in abduction, flexion, and internal and external rotation, frozen shoulder?’. There was no mention in Dr Lim or Dr alvache-Rubio or the Minto Mall Medical Centre clinical notes that he had swelling in the medial aspect of his right clavicle. 
The Panel noted that Mr Panuganti was examined by the physiotherapist on 7.7.20. The physiotherapist documented that he had ‘pins and needles/numbness: R little finger occasionally; Weakness in the R hand; Radiculopathy: nil reported’ and the physiotherapist’s examination findings of the right shoulder were ‘R shoulder flexion=90 deg, abduction= 70 deg, elbow flexion=80% pain at elbow’ [bundle, A1, p884]. There was no mention by the physiotherapist that he had any swelling in the medial aspect of the right clavicle.
Assessor Chan asked Mr Panuganti when Dr Jonathan Herald examined his shoulders on the 9.9.22 if he was undressed to expose his shoulders and chest. Mr Panuganti confirmed that he was undressed. The Assessor said to him that there was no mention in Dr Herald’s report that he had a swelling in the medial aspect of his right clavicle.
Right knee
With regard to the pain and swelling in Mr Panuganti’s right knee (which was not listed as an injury in PIC’s referral of Mr Panuganti to Assessor Herald or the Review Panel), there was no mention that he had any symptoms in his right knee in Minto Mall Medical Centre and Workers Doctors clinical notes. 
The Panel noted that Dr Lim had referred him to a psychologist for counselling. The clinical notes of Workers Doctors stated that Mr Panuganti had counselling by ‘telehealth’ with psychologist on the 22.5.20, 29.5.20, 4.6.20, 11.6.20, 18.6.20, 30.7.20, 27.8.20 and 24.9.20. 
Dr Lim also referred Panuganti to have physiotherapy treatment which he had on the 7.7.20 and 14.7.20. The physiotherapist’s clinical notes were part of Workers Doctors clinical notes. In appeared that the physiotherapist who Dr Lim had referred him to see were in-house physiotherapist in Workers Doctors practice.
The Panel noted that Mr Panuganti had complained of pain in his right elbow to his GP on the 11.2.21 (Dr Rizkalla [bundle A1, p555]. Dr Rizkalla referred him for an x-ray of the right elbow which he had on the 19.2.21 which revealed that he had olecranon bursitis and medial epicondylitis of the right elbow. [A1, p211]. On the 9.5.21, he had ‘right elbow bursa aspirated, Nil infection’ by his GP [bundle A1, p552]
On 13.12.21, he was found to have atrial fibrillation [bundle A1, p548] and was anti-coagulated with warfarin which was stopped for medical reason on 12.6.22 [bundle A1, p536].
Past Medical History
Mr Panuganti had pain in his neck in 2005 and 2007.	
In 2013, Mr Panuganti fractured his left hip and had surgery, open reduction and internal fixation to his left hip. 
On 9.1.17, Mr Panuganti saw his GP, Dr Dogra at Minto Mall Medical Centre with ‘right sided lower back pain few days after some gardening’ [Claimant’s bdle, p76]. Dr Dogra treated him with ‘exercise stretches’ and Panadeine Forte analgesic. Dr Massoud in the same practice, saw him on the 30.1.17 whence he presented with chest pain. He had a chest x-ray which was reported as ‘normal’ by Dr Massoud. There was no mention that he had right shoulder pain in this consultation. [Claimant bld, 77]
On 18.4.17 Mr Panuganti saw Dr Dogra with ‘Right sided shoulder chest and back pain 10 days, Getting worse, Diff breathing, Started slowly after the garden work’[Claimant’s bdle, p73]. Dr Dogra stated in the clinical notes ‘Respiratory - No rhonchi, no creps. No respiratory distress’ and referred him for a Chest x-ray. There was no mention of any examination of his right shoulder or the back. Dr Dogra reported on the 19.4.17 that the chest x-ray was ‘normal, pain is slightly better, more with movement, nil cough’. Dr Dogra reviewed him on the 22.4.17 and stated in the clinical notes ‘Polymyagia. No back pain, No neck pain’. Based on these clinical notes, he had pain in his right shoulder, chest and back from his gardening in January 2017 and in April 2017. [Claimant bdle, p72]. There was no further mention in Minto Mall Medical Centre’s clinical notes that he had any symptoms in his right shoulder from April 2017 to just before the subject accident.
In 2016, 2017 and on 26.2.19 [Claimant’s bdle, p67], Mr Panuganti had complained of pain in his lower back .
Mr Panuganti had other medical illness such as diabetes, hypertension and stage 5 renal failure and had a shunt created in his right forearm by Dr Farmer on 19.11.16 in anticipation that he would have renal dialysis for his renal failure. For the past six months, three times a week, Monday, Wednesday and Friday he had renal dialysis at Liverpool Health Area Dialysis Centre.
Current Symptoms
Mr Panuganti said that he had constant localized pain in the midline of the posterior aspect of the lower cervical spine with no radiation to the either upper limb.
Mr Panuganti confirmed that he has pain in the right supraclavicular and suprascapular area and not in the right deltoid area by pointing to the respective parts with the left index finger.
Mr Panuganti said that currently, he had no complaint or pain in his right elbow and right hand. 
He complained that he had constant pain in his lumbar spine. The pain in his lumbar spine was localized with no radiation to his lower limbs. He could walk for about 100 metres or sit down for one hour. He had no pain in his right hip and right foot.
Mr Panuganti complained that he had pain in the anteromedial and medial aspect of his right knee all the time.
Medications
Mr Panuganti’s Lyrica was stopped on account of his renal failure, and he takes Panamax 2 tablets twice a day for pain relief. 
Dr Lim prescribed Melatonin to help him to sleep.
He had other medications which he took to manage his diabetes, blood pressure and renal failure.
Examination
Mr Panuganti walked into the consulting room favouring his right leg and without any walking aid. He is of average physique. He sat through the assessment without expressing any discomfort.
Cervical spine
Mr Panuganti had normal curvature in his cervical spine. Active flexion and extension of his cervical spine was half the normal range. Active rotation and lateral flexion of his cervical spine to the right and left side was a quarter of the normal range. He had reduced range of movement but no asymmetry in the range of movement in his cervical spine. 
He had hyperesthesia on palpation of the paracervical areas and right suprascapular area. There was no spasm or guarding in the paracervical muscles. Touch sensation and tendon reflexes were present and equal in both upper limbs. Power was normal and equal in both upper limbs. The girth of the arm measured at 10 cm proximal to the lateral epicondyle was 30 cm in the right and left arm. The girth of the forearm measured at 10 cm distal to the lateral epicondyle was 25 cm in the right and left forearm. Hence there was no signs that met the criteria for radiculopathy of the cervical spine in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’ 
Lumbar spine
He had normal lordosis in his lumbar spine. There was no tenderness, muscle spasm or guarding in the paralumbar muscles of the lumbar spine. He walked favouring his right leg as he had pain in his right knee.
Active flexion of the lumbar spine was a quarter of the normal range and there was hardly any active extension of the lumbar spine. Lateral flexion of the lumbar spine to the right side was half the normal range and to the left side was one third of the normal range. Hence, there was asymmetry in the range of movement of the lumbar spine.
Touch sensation, tendon reflexes and muscle power were present, normal and equal in both lower limbs. The girth of the right thigh measured at 10 cm from the upper pole of the patella was 43 cm in the right thigh and the left thigh. The girth of the calf measured at 12 cm from the lower pole of the patella was 35 cm in both lower limbs. Hence, there was no wasting of the muscles in the right lower limb when compared to the left lower limb, despite he had pain in his right knee. The sciatic stretch test performed with him sitting on the couch with the legs hanging on the side of the couch was negative in both lower limbs. Hence there were no physical signs that met the criteria for radiculopathy of the lumbar spine in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’. 

Shoulder and clavicle
There was a prominent swelling in the medial aspect of the right clavicle. The swelling was not tender nor warm to touch. It had a solid feel, not fluctuant and was not pulsatile. It measured 3cm by 5cm. The Panel noted that Mr Panuganti had Chest x-ray on the 6.5.22 [A1, p607] and CT chest on the 16.5.22 [A1,p604] and there was no mention of any abnormality of the right sternoclavicular junction in both of these imaging.
Mr Panuganti is right hand dominant. On inspection, Mr Panuganti had a normal contour in the right and left shoulder with no wasting of the right and left shoulder girdle muscles. There was no tenderness in the glenohumeral joint and the acromioclavicular joint. The active range of movement of the shoulders was measured with a goniometer. The best readings for each plane of motion of the right and left shoulder were recorded in the table below. 
Shoulder Movements	RIGHT	LEFT	
Flexion	90	170	
Extension	30	60	
Abduction	80	170	
Adduction 	15	 40	
Internal Rotation	70	90	
External Rotation	35	90	
He had a full range of movement in the uninjured left shoulder. The range of movement in all planes of motion in the right shoulder was restricted. He gave the reason that he had pain in his right shoulder which had restricted the right shoulder movement. The range of movement in his right shoulder was noted to be consistently reduced in all planes of motion. As he was unable to abduct his right shoulder to 90 degrees, the internal and external rotation of hie right shoulder was conducted with his right arm at zero degrees of abduction.
Mr Panuganti had no tenderness in his right elbow. On active movement, he had full flexion and extension, pronation and supination in his right elbow.
Right knee
Mr Panuganti’s right knee appeared larger than the left knee. Mr Panuganti was able to flex his left knee to 140 degrees and his right knee to 110 degrees. The right knee felt warm to touch compared to the left knee. There was tenderness on the medial aspect of the right knee. There was no effusion in the right knee. The girth of the right knee was 42 cm and the left knee was 39 cm. There was no tenderness in the left knee. 
Causation
Cervical spine
Mr Panuganti had past history of neck pain. The Panel had noted the minor damage to the rear passenger side of the Toyota Prado and he was able to drive away after the accident. Immediately after the accident he had complained of pain in his neck which was documented in the clinical notes of his GP on the 3.3.19. The clinical notes of his GP on the 3.3.19 stated ‘neck tender, restriction present’ and there was no mention that he had any neurological signs in his upper limbs. 
At the next consultation with his GP on the 20.5.19, two and a half months after the subject accident, and on subsequent consultations with his GP on the 20.5.19, 16.7.19, 23.7.19 10.9.19 and the 19.9.19, there was no mention that he had any complaint in his neck. 
Based on the contemporaneous clinical notes of his GP, the Panel concluded that he had sustained soft tissue injury to the cervical spine causally related to the accident and the soft tissue injury had settled down. Hence there were no complaints of his cervical spine after his first consultation with his GP on the 3.3.19 and subsequent consultations. 
Lumbar spine
Mr Panuganti has a history of pain in his lumbar spine on the 26.2.19, a few days before the subject accident. After the subject accident, he complained of pain in the lower back and the clinical notes of his GP on the 3.3.19 stated ‘L/L4/L5 tender and restricted’ and there was no mention that he had any neurological sign in his lower limbs. 
At the next consultation with his GP on the 20.5.19, two and a half months after the subject accident, and on subsequent consultations with his GP on 20.5.19, 16.7.19, 23.7.19 10.9.19 and the 19.9.19, there was no mention that he had any complaint in his lumbar spine.
Based on the clinical information, the Panel concluded that he had sustained soft tissue injury to the lumbar spine causally related to the subject accident and the soft tissue injury had settled down. Hence there were no further complaints of his lumbar spine after his first post- accident consultation with his GP on the 3.3.19.
Right shoulder and right elbow
Mr Panuganti had pain in his right shoulder two years before the subject accident in April 2017 which happened after he did some gardening. There was no further mention in the GP’s clinical notes that he had any right shoulder symptoms in the subsequent consultations on the 22.4.17, 21.5.17, 23.5.17, 15 6.17 and 23.10.17.
In the Application for personal Injury benefits form, Mr Panuganti stated in the section ‘an illness or injury affecting the same or similar parts of the body at the time of the accident’ of the claim form that he had ‘Pre-existing kidney problem’ [Claimant’s bdle, p17]. 
After the subject accident, he had consulted his GP on the 3.3.19 and a further 12 consecutive consultations in the following 13 months from 3.3.19 to 23.4.20, and there was no documented complaint of pain in his right shoulder and his right elbow in his GP’s clinical notes. 
The first documented complaint of pain in his right shoulder and right elbow was when he consulted Dr Lim on telehealth on the 19.5.20 fifteen months after the subject accident.
If Mr Panuganti had sustained an injury to his right shoulder or elbow, it would have been obvious to the GPs who he saw in the Minto Mall Medical Centre in the immediate days or the week after the day of the subject accident, this was not the case. The Panel concluded that Mr Panuganti did not sustain any injury to his right shoulder or right elbow at the subject accident.
Swelling in the medial aspect of the right clavicle.
With regard to the swelling in the medial aspect of the right clavicle, which was not listed for assessment by the Panel, there was no documented record of the swelling in the Minto Mall Medical Centre’s GP clinical notes from the 3.3.19 to the 23.4.20. His cervical spine, right shoulder and lumbar spine was examined by the physiotherapist on the 7.7.20. There was no mention in the physiotherapist’s clinical notes that he had a swelling in the medial aspect of his right clavicle. 
The Panel had reviewed the chest x-ray report dated 19.4.17 [A1,p 213] and 23.4.17 [A1, p220] before the subject accident. There was no report of any abnormality in the medial aspect of the right clavicle in these reports.
The Panel had reviewed the chest x-ray report of the 6.5.22 [A1, p607] and the Chest CT Scan report dated 16.5.22 [A1, p 604]. There was no report of any abnormality in the medial aspect of the right clavicle or in the right upper region of his chest in these reports. 
There was no mention in Assessor Herald’s Certificate dated 24.10 22 that there was any swelling in the medial aspect of his right clavicle.
Based on the medical evidence, the Panel concluded that the swelling in the medial aspect of his right clavicle was not causally related to the subject accident.
Right knee 
The pain and swelling of the right knee was not listed for the Panel to consider. There was no mention of swelling in his right knee in the clinical notes of Minto Mall Medical Centre from the 3.3.19 to 8.11.19. Hence, there was no contemporaneous medical evidence that the swelling was causally related to the subject accident. As the right knee swelling was not listed for the Panel’s assessment, no determination of its causal relationship to the subject accident by the Panel is required.
REASONS
65.	The review is a new assessment of all matters with which the medical assessment is concerned. 
66.	The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen and Insurance Australia Ltd v Marsh. 
67.	The Panel adopts the reasoning in David v Allianz Australia Ltd that radiculopathy can be present at any time to establish that it is not a threshold injury for the purposes of the MAI Act.
68.	We adopt the reasoning in Lynch v AAI Ltd that the claimant bears the onus of proof in establishing that any injury is not a threshold injury for the purposes of the MAI Act.
Cervical spine and low back injury
69.	We agree with the insurer’s submissions that there is an absence of evidence establishing that there was a non-threshold injury to the back or neck.
70.	We accept that low back and neck symptoms were mentioned at the first consultation with the general practitioner within days of the motor accident. There is otherwise a longstanding history of low back pain. 
71.	Similar to the opinion of the Medical Assessor, we cannot identify in the material any examination features or pathology that would suggest that the injury is not a threshold injury.
72.	There is no evidence of traumatic injury involving an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.
73.	There is no evidence of radiculopathy as defined in cl 5.8 in either the clinical notes or on the examination recorded by the original Medical Assessor or in the recent examination undertaken by Medical Assessor Chan.
74.	The definition of radiculopathy in cl 5.8 requires specific findings. A general comment of radiating pain does not establish an objective sign of radiculopathy as it is non-specific and does not satisfy the definition in cl 5.8. Further these symptoms are not reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution”.
Right shoulder 
75.	The accident occurred in circumstances described by Mr Panuganti in his claim form and as recorded by the police. This was a modest rear end collision. The photographs show minor damage consistent with the fact that the cars were driven away following the motor accident. 
76.	In QBE Insurance (Australia) Ltd v Shah the Court referred to the absence of any discussion of a “biomechanical, anatomical, orthopaedic or other scientific reasoning to support the putative traumatic causation”. 
77.	To the extent that the medical experts on the Panel have expertise to comment on causation, a minor rear end collision is unlikely to cause or aggravate a shoulder tear. Medical Assessor Herald gave no reasons on this issue when he concluded that the shoulder tear was caused by the motor accident.
78.	The absence of reference of a contemporaneous recorded complaint is relevant but not determinative of injury. There is no reference to right shoulder symptoms in the clinical notes in 2019.
79.	We note that the claim form was completed over 14 months after the motor accident in May 2020 and alleges injury to the right shoulder. 
80.	Mr Panuganti consulted Dr Narayanan, the treating renal specialist, shortly after the motor accident. There is an absence of record of right shoulder symptoms at that time although that is explicable on the basis that the claimant may not have mentioned the symptoms to a doctor treating him for kidney related issues.
81.	Consistent with the examination findings of Medical Assessor Herald, we accept that there are features of a rotator cuff tear. However, it is medically common that someone in the late 50’s will show shoulder symptoms due to underlying degeneration of the rotator cuff. The claimant’s age is consistent with having underlying degeneration of the rotator cuff. 
82.	For these reasons, we are not satisfied that the any right shoulder rotator cuff tear was caused or aggravated by the motor accident.
Right elbow
83.	There is an absence of contemporaneous complaint, absence of pathology and lack of explanation how the right elbow was injured in the motor accident. Furthermore, a finding of bursitis (inflammation) does not satisfy the definition of the injury being a non-threshold injury.
CONCLUSION
84.	For these reasons the Panel concludes that the certificate issued by Medical Assessor Herald is revoked. The new certificate is attached at the commencement of these Reasons.