DETERMINATION OF REVIEW PANEL	
	
CITATION:	Insurance Australia Limited t/as NRMA Insurance v Coppola [2024] NSWPICMP 11	
		
CLAIMANT:	Antonio Coppola	
		
INSURER:	NRMA	
		
REVIEW Panel	 	
		
MEMBER:	Maurice Castagnet 	
		
MEDICAL ASSESSOR:	Geoffrey Stubbs	
		
MEDICAL ASSESSOR:	Neil Berry	
		
DATE OF DECISION:	8 January 2024	
		
CATCHWORDS:	MOTOR ACCIDENTS – Claimant suffered injury on 31 October 2017 when the insured vehicle made a right-hand turn into the path of the claimant’s vehicle, causing a “T-bone” collision; dispute about causation and permanent impairment assessment of injuries to the right shoulder and to the left shoulder; parties accepted previous assessments of other body parts whole person impairment (WPI) of 5%; claimant re-examined by Review Panel; finding that the injury to the right shoulder was caused by the motor accident and that the injury to left shoulder was not caused by the motor accident; assessment of right shoulder gave rise to WPI of 9%. Held – original assessment revoked on the basis that the Review Panel found a higher assessment of WPI for the right shoulder; replacement certificate issued.

DETERMINATIONS MADE:  	CERTIFICATE OF DETERMINATION
Issued under s 63(4) of the Motor Accidents Compensation Act 1999
The issue determined by the Review Panel is whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.
Determination
1.	The Review Panel revokes the certificate of Medical Assessor Alan Home dated 
22 November 2022.
2.	The Review Panel issues a replacement certificate determining that the following injuries caused by the motor accident give rise to a whole person impairment GREATER THAN 10% (14%):
•	cervical spine;
•	lumbar spine, and 
•	right shoulder.
3.	The injury to the left shoulder – left rotator tear, was not caused by the motor accident.

	

STATEMENT OF REASONS
BACKGROUND
1.	The claimant, Antonio Coppola, was injured in a motor accident on 31 October 2017 when a vehicle insured by NRMA, made a right-hand turn into the path of the claimant’s vehicle, causing a “T-bone” collision. 
2.	The claimant claimed that he sustained injuries to his cervical spine, lumbar spine, right shoulder, left shoulder, right knee and hips. He made a claim for damages against the insurer under the Motor Accidents Compensation Act 1999 (the MAC Act).
3.	As part of his claim, the claimant pursued damages for non-economic loss. According to s 131 of the MAC Act, no damages may be awarded for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by a motor accident is greater than 10%. 
4.	The insurer did not concede that the claimant had suffered whole person impairment (WPI) exceeding 10% for his physical injuries caused by the accident. 
5.	According to s 57 and sub-s 58(1)(d) of the MAC Act, such a disagreement constitutes a “medical dispute” about one of the “medical assessment matters” that may be referred to the Personal Injury Commission (Commission) for assessment.
6.	Pursuant to s 60 of the MAC Act, the claimant made that application to the Commission and the matter was referred to Medical Assessor Alan Home for assessment (the medical assessment). 
7.	On 22 November 2022, the Medical Assessor issued a certificate finding that some of the claimant’s injuries caused by the accident gave rise to a WPI of 13%. 
THE REVIEW APPLICATION 
8.	On 15 December 2022, pursuant to s 63(1) of the MAC Act, the insurer made an application to the President of the Commission to refer the medical assessment to a review panel for review. The review application was made within the time prescribed by s 63(7) of the MAC Act. 
9.	The President referred the application to a review panel (the Panel) for review, being 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.

CONDUCT OF THE REVIEW 
10.	According to s 63(3)) of the MAC Act and Schedule 1, cl 14F (2) of the Personal Injury Commission Act 2020 (the PIC Act), the Panel consists of two Medical Assessors and a Member of the Motor Accidents Division of the Commission. On this occasion, the Panel is constituted by Medical Assessor Geoffrey Stubbs, Medical Assessor Neil Berry and Member Maurice Castagnet. 
11.	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.
12.	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. The panel may determine the proceedings solely based on the written application.
13.	The review is not limited to only that aspect of the assessment that is alleged to be incorrect and is by way of a new assessment of all the matters with which the medical assessment is concerned.
RELEVANT LEGISLATION, GUIDELINES AND LEGAL PRINCIPLES
14.	Section 44(1)(c) of the MAC Act provides that the Authority may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.
15.	The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines adopt the fourth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA 4). Where there is any difference between AMA 4 and the Guidelines, the Guidelines are definitive.
16.	The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAC Act in determining issues of causation, particularly ss 5D and 5E of the CL Act. In Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13, Campbell J made the following observations at [65]:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
17.	These observations were made in the context where the review panel was constituted by three medical assessors. Nevertheless, the observations provide useful guidance to the presently constituted Panel. 
18.	Clause 1.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable in 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 the sole cause as long as it is a contributing cause, which is more than negligible.” 
19.	The Panel is required to determine the issues on the balance of probabilities. The resolution of causation does not require scientific certainty: Briggs v IAG Ltd (No 2).
MEDICAL ASSESSMENT UNDER REVIEW
20.	The Medical Assessor found that the motor accident caused injuries to the cervical spine, lumbar spine and right shoulder. As previously indicated, the Medical Assessor found that these injuries gave rise to a permanent impairment of 13%.
21.	In making that finding, the Medical Assessor attributed a WPI of 5% to the cervical spine, 0% to the lumbar spine and 8% to the right shoulder.
22.	The Medical Assessor found that the injury to the right knee had resolved and that the injuries to the left shoulder and hips were not caused by the accident.
23.	The parties have confirmed with the Panel that they accept the Medical Assessor’s assessment of a WPI of 5% for the cervical spine injury and a WPI of 0% for the lumbar spine injury.
24.	The claimant has confirmed with the Panel that the injuries to the hips and the right knee have resolved. There are therefore no assessable impairments for these injuries.
25.	Accordingly, the Panel proceeds with an assessment of the right shoulder injury and the left shoulder injury. 
MATERIAL BEFORE THE PANEL
26.	The documents filed by the parties and considered by the Panel are as follows: 
(a)	the insurer’s bundle filed on 13 July 2023 which includes the material that was before the Medical Assessor (221 pages);
(b)	the claimant’s bundle filed on 14 July 2023 which includes the material that was before the Medical Assessor (442 pages), and
(c)	the insurer’s additional bundle filed on 15 September 2023, which includes further submissions (44 pages).
INSURER’S SUBMISSIONS
27.	The insurer’s submissions may be conveniently summarised as follows: 
Severity of impact 
28.	Based on the history recorded by Canterbury Hospital and the Ambulance Service, the insurer submits that there cannot be any suggestion that the impact of the collision was at least moderate. 
29.	The insurer submits that there is no available evidence to support an assertion that the vehicles involved in the accident were written off due to the severity of the collision. 
Right shoulder Injury
30.	The insurer disputes that the claimant suffered any injury to the right shoulder in the accident for the following reasons: 
(a)	According to the opinion of Dr Frank Machart, the only injury the claimant suffered in the accident was an aggravation of pre-existing cervical spine which had resolved.
(b)	The ambulance report refers only to left lateral neck pain and central chest pain on inspiration. 
(c)	The records of Canterbury Hospital refer only to complaints in respect of the cervical spine and chest pain.
(d)	The insurer submits that there is no corroborating evidence of injury to the right shoulder.
(e)	According to the records of Norton Street Medical Centre, the claimant has an extensive pre-existing medical history which demonstrates chronic right and left shoulder pain. 
Left shoulder injury 
31.	The insurer disputes the claimant suffered an injury to the left shoulder in the accident for the following reasons:
(a)	The ambulance report did not record any history of symptoms and/or injuries to the left shoulder.
(b)	The records of Canterbury Hospital did not record any injuries to the left shoulder. 
(c)	The claimant’s personal injury claim form did not state any left shoulder injury. 
(d)	Whilst the claimant reported acute left shoulder pain to Dr Tringali on assessment following the accident, on 2 November 2017, the doctor did not certify any injury to the left shoulder in his medical certificate dated 29 November 2017.
(e)	When the claimant was assessed by Dr Machart on 18 August 2018, the claimant did not report any symptoms and/or injuries to the left shoulder. 
(f)	The claimant did not complain of left shoulder pain at the time of his initial assessment with Dr Herald. 
(g)	The claimant did not complain of any left shoulder injury upon assessment with Dr McGee-Collett.
(h)	The claimant was referred to Dr Herald for treatment of left shoulder symptoms in May 2022 (over four and a half years after the accident). There is no suggestion by Dr Herald that the claimant’s left shoulder symptoms were related to the accident. 
(i)	When the claimant was assessed by Medical Assessor Doron Samuell on 15 June 2021, the claimant did not report any left shoulder symptoms. 
(j)	The claimant reported an onset of left shoulder symptoms in the 18-month period prior to the assessment of Assessor Home (being over 3.5 years after the accident). Medical Assessor Home did not accept the claimant sustained an injury to the left shoulder.
CLAIMANT’S SUBMISSIONS
32.	The claimant’s submissions may be conveniently summarised as follows: 
Severity of impact 
33.	The claimant submits that the impact to the vehicles were not “minor” and both vehicles were written off. The impact of the collision was moderate and/or strong enough to warrant writing off both vehicles. 
Right shoulder injury 
34.	The insurer submits that there is no contemporaneous evidence that the claimant injured his right shoulder in the accident. However, the claimant says that he reported an injury to both shoulders to his treating doctor, Dr Tringali, two days after the accident on 2 November 2017. 
35.	The claimant notes that the insurer did not initially put medical causation of the right shoulder in issue. The insurer covered the cost of physiotherapy and other medical treatment relating to the neck, back and both shoulders for approximately one year after the accident. 
36.	The insurer submits that there a long and well-documented, history of pre-existing right shoulder symptoms. However, the claimant submits that at the time of the accident, he had not suffered from right shoulder symptoms for approximately ten years. The claimant also relies on the clinical notes of his treating doctor, Dr Tringali (Norton Street Medical Centre). The closest reference to right shoulder complaints prior to the accident is on 29 August 2007, approximately 10 years before the accident. Accordingly, the claimant submits that the available evidence supports that any right shoulder condition would have been asymptomatic at the time of the accident, and therefore in the absence of objective evidence of complaints in close proximity to the accident, its possible presence should be ignored as per clause 1.31 of the Guidelines. 
Left shoulder injury
37.	The claimant again relies on the clinical notes of his treating doctor, Dr Tringali (Norton Street Medical Centre) and submits there is an absence of left shoulder complaints for seven years prior to the accident, and two days after the accident, he complained of acute left shoulder pain.
38.	The only reference to a left shoulder complaint is on 21 September 2010, approximately seven years before the accident. 
39.	Accordingly, whilst it is possible the claimant may have had an underlying a left shoulder condition, any such condition would have been asymptomatic at the time of the accident. 
Permanent impairment
40.	In regard to permanent impairment, the claimant submits that whilst there may be a documented history of prior right and left shoulder pain, there is no medical evidence of an impairment of the right or left shoulder in the period leading up to the accident, and therefore, no deduction should be allowed for a pre-existing impairment in accordance with clause 1.31 of the Guidelines. 
SUMMARY OF THE EVIDENCE BEFORE THE PANEL 
41.	The evidence before the Panel that relates to the matters under review, may be conveniently summarised as follows.
Pre-accident medical records
42.	The clinical records of Norton Street Medical Centre (which includes records of the claimant’s general practitioner, Dr Rino Tringali) referred to the claimant being involved in a motor accident on 4 December 2006 when his vehicle was hit from behind. He was taken to Royal Prince Alfred Hospital where he was observed for head injury and neck pain which radiated to both shoulders. 
43.	The clinical records recorded the following entries in relation to treatment for those injuries: 
(a)	5 January 2007 – “L and R shoulder pain paraesthesia – intrascapular [sic] region.”
(b)	4 May 2007 – “…He complained of neck pain which radiated into the intrascapular [sic] area. The patient [sic] of the left and right shoulder pain with paraesthesia down the left upper limbs…”
(c)	8 May 2007 – “C4/5 Disc lesion-impingement – C6/7 L shoulder/arm paraesthesia.”
(d)	22 May 2007 – “Cervical pain – L shoulder > arm > paraesthesia.”
(e)	21 September 2010 – “Acute intrascapular [sic] pain – obesity – neck pain > L Shoulder upper limb.”
Claimant’s personal injury claim form
44.	In his personal injury claim form dated 30 November 2017, the claimant stated that he suffered injuries to his neck, lower back, both hips, chest, right knee, right shoulder and a psychological injury.
45.	The medical certificate of Dr Rino Tringali dated 29 November 2017 that accompanied the claimant’s personal injury claim form, documented the claimant’s complaints as: shock, headache, cervical pain, back pain, interscapular pain, right hip and left hip pain, right knee and post-traumatic depression.
Post-accident medical records
46.	The medical record of NSW Ambulance referred to the claimant’s injuries after the accident in the following terms:
“66 yo [male] driver of car that T-boned another car: 40kph. Seat belt worn. NIL airbags deployed (fitted). Relatively minor front end damage. Self-extricated. c/o [Left] lateral neck pain to central chest pain on inspiration…pain moving head up & down…”
47.	The clinical records of Norton Street Medical Centre show that the claimant reported the injuries he sustained in the accident to Dr Tringali on 2 November 2017, complaining of headache, cervical pain, acute left shoulder pain and right shoulder pain, back pain, left hip and right hip pain and chest pain over the seat belt area.
48.	On a further visit the next day, the claimant complained of acute cervical and left shoulder pain which referred down the left arm and hand, right shoulder pain, dizziness and back pain. 
49.	The claimant attended further consultations with complaints of right shoulder pain on 16, 29 and 30 November 2017, December 2017, January, February, March, April, May, June July, August, September, October and November 2018, February and May 2019, January, April, October, November and December 2021, May, October and November 2022, and May and June 2023. 
50.	On 29 October 2020, the claimant was referred by Dr Tringali to orthopaedic surgeon, Dr Jonathan Herald for “acute right shoulder pain – rotator cuff?”. Dr Herald recommended arthroscopic rotator cuff repair surgery. Approval for the procedure was declined by the insurer on 22 February 2021.
51.	The clinical records of the Norton Street Medical Centre show that next complaint about the about the left shoulder since 3 November 2017 was more than three years later on 30 December 2020. This was then followed by regular complaints of left shoulder pain in January, October and December 2021, March, May, June, September, October and November 2022, January, February, March, May and June 2023.
Imaging studies
52.	An MRI of the right shoulder performed on 22 May 2018 concluded that there was a bursal partial thickness tear of up to 30% or 40% of the tendon over an AP diameter of up to 20mm. This is a type 3 SLAP tear with associated subtle labral cystic changes inferiorly.
53.	An ultrasound of the right shoulder performed on 2 November 2020 concluded that there was a complete full thickness supraspinatus tendon tear with retractions of the muscle belly and bursal thickening and bunching in keeping with bursitis. 
54.	An ultrasound of the left shoulder performed on 4 May 2022 concluded that there was a complete rotator cuff tear bursitis and AC joint degenerative change. 
55.	An MRI of the left shoulder performed on 30 June 2022 concluded that there was supraspinatus tendinopathy with focal non-retracted tear moderate bursitis and advanced AC joint arthrosis. 
Medico-legal evidence
56.	The claimant was examined by orthopaedic surgeon, Dr Frank Machart on 18 August 2018 at the request of the insurer. In his report dated 31 August 2018, Dr Machart recorded that the claimant reported that at the time of the accident, he suffered pain in the neck, back, right knee and right shoulder. The claimant reported that prior to the accident he has suffered bouts of pain in the neck and back. Since the accident, the pain in these areas have become constant and his never out of pain.At the time of the examination, the claimant reported constant pain the cervical region, lower back, anterolateral aspect of the right knee and in the right shoulder.
57.	Dr Machart indicated that he has seen photographs of the damage to both vehicles. He thought there was a moderate amount of damage to the claimant’s vehicle although he was of the opinion that damage to the rear door of the insured vehicle would indicate that the speed of impact would have been less than 50-60Kph.
58.	Dr Machart found there was evidence of rotator cuff pathology and partial tear (in the right shoulder). However, he was of the opinion that this was unlikely the product of the accident because symptoms were not evident at the time of the accident – an injury to the right shoulder was not corroborated by the clinical records of Canterbury Hospital.
59.	The claimant was examined by orthopaedic surgeon, Dr Drew Dixon 25 September 2019 at the request of his solicitors. Dr Dixon provided a report on 26 September 2019.
60.	Dr Dixon recorded that the claimant reported that he sustained an acute whiplash injury with scapular pain, a seat belt injury to his chest and neck, back strain injuries with right buttock sciatica, an injury to his right shoulder which hit the window glass on impact, a seat belt injury to the right shoulder and left shoulder and direct contusion to his right knee.
61.	Dr Dixon recorded that the claimant reported pain and stiffness in his neck with right shoulder brachialgia with trapezial muscle pain and he localised the pain to the right cervical facet joint area with radicular complaint, with pain radiating down the arm with paraesthesia in the ulnar two digits intermittently. He reported recurrent occipital headaches.
62.	Dr Dixon recorded that the claimant reported difficulty elevating his right arm above shoulder height due to trapezial muscle and deltoid pain, difficulty reaching objects on high shelves and working overhead at home and difficulty with heavy lifting and carrying due to right shoulder brachialgia and low back pain. The claimant reported some upper trapezial muscle pain on the left with pain referred to the vertebra prominens spinous process.
63.	Dr Dixon was of the opinion that the claimant sustained injuries to the right shoulder and left shoulder that were causally related to the accident.
64.	Dr Dixon believed that claimant sustained direct injury to the right shoulder from hitting the side wall of the car and seat belt injury with post traumatic stiffness with subacromial bursitis clinically and rotator cuff tear and shoulder girdle weakness.
65.	Dr Dixon believed that the claimant sustained left shoulder stiffness due to upper trapezial muscle pain with difficultly fully elevating the arm as a result of the whiplash neck injury. Upon assessment on 25 September 2019, Dr Dixon attributed a WPI of 8% to the right shoulder injury and a WPI of 2% to the left shoulder injury.
66.	Dr Dixon commented that the claimant has had intermittent bouts of neck and back pain at the time of accident but did not suffer from symptoms in his shoulders at the time of the accident. Dr Dixon noted that the only reference to past right shoulder treatment was on 29 August 2007 (approximately 10 years prior to the accident) and one reference to the left shoulder on 21 September 2010 (approximately seven years prior to the accident).
RE-EXAMINATION
67.	The claimant was examined by Medical Assessor Stubbs on behalf of the Panel at the Commission’s Medical Suites on 26 September 2023.
68.	His examination report now follows.
Background
69.	The claimant is 72. He is divorced and lives in a single level apartment that he rents privately. He has been on the disability support benefit for incapacitating low back pain since 2002. There was initial injury when he was 19 years old serving is a conscript in the Italian army. He had a low lumbar laminectomy performed for this injury. He suffered an aggravation to this injury working as a crane chaser at the Cockatoo Island dockyard. This occurred around 1993 to 1994 and increased his symptomatology leading to incapacity. At that stage he only had low back pain.
70.	In 2006, he was involved in a motor accident and suffered from cervical pain diagnosed as whiplash. He was managed by his general practitioner Dr Tringali. He pursued a third-party claim that eventually settled. He then reported that he was free from any neck symptomatology. A CT scan of the cervical spine has been performed in 2015 for ongoing neck pain. He did not recall either the neck pain or the CT scan. He stated there was no history of problems in either shoulder or hips or knees before the subject accident. 
71.	At the time of the accident, he was already living alone. He had ongoing low back symptoms but was otherwise well and managing his activities of daily living.
The motor accident
72.	He was the driver of a 2002 Mazda sedan which struck a Subaru that was travelling in the opposite direction which attempted to make a right-hand turn across his path. The claimant does not know if airbags were fitted to his car. In any case they did not deploy. Police and the ambulance service attended the scene of the accident, and he was taken to the Canterbury Hospital.
73.	The hospital notes record neck and chest injuries, but no other injuries. The claimant recalls he was sore all over, but the neck and chest pain were the worst of his symptoms. He was discharged home and subsequently went to see his usual general practitioner, Dr Tringali, a day or two after the accident. Dr Tringali’s initial notes record neck, right shoulder and chest pain. The complaints of left shoulder and bilateral hip pain came much later.
74.	He was sent for physical therapy which went on for several months without improvement. The insurer declined responsibility for further treatment though the claimant has had some physiotherapy under Medicare since. He takes no anti-inflammatory agents for his pain as he does get gastrointestinal upset. When asked about the timeline, he reports that he was not immediately troubled by left shoulder pain. This started to come on after a few weeks when he had to use his left arm more for his activities of daily living because the right shoulder was painful and stiff. He is uncertain when the hip and knee pain developed, probably some months later. He says he made extensive use of a TENS machine that he already had for his low back pain. There was only modest temporary improvement and he struggled with activities of daily living. He was however able to replace his motor vehicle and continues to drive locally. Presently he is having no ongoing treatment.
75.	He sought consultations with Dr Jonathan Herald for both shoulders. Dr Herald advised that he need surgeries to both shoulders but this has been declined by the insurer. He also saw Dr McGee-Collett who did not think that surgery was appropriate to either his neck or low back. No treatment has been continued to the aching discomfort in the trochanteric region of both hips and no specific diagnosis has been made.
76.	In May 2018, seven months after the motor accident, he had MRI investigations of the right shoulder, cervical spine, and lumbar spine. In November 2020, he had an ultrasound of the right shoulder. He does not recall any worsening of the right shoulder pain or the investigation at that time.
77.	In May 2022 he underwent an ultrasound of the left shoulder and in June 2022 he underwent an MRI study of the left shoulder. Both studies showed a full thickness rotator cuff tear. This is nearly four years after the accident and apparently undertaken by increasing left shoulder symptoms beginning in the months following the accident. 
78.	His symptoms have worsened with time. He had a cholecystectomy for gallstones two years ago. This has increased his intolerance of nonsteroidal anti-inflammatory agents. The ache in the trochanteric region continues but his left knee, which was symptomatic for a while, has now settled down.
79.	He continues to have difficulty with overhead activity with the right shoulder which is more symptomatic than the left. He has ongoing neck stiffness with pain spreading into the shoulder blades and pain spreading in a non-dermatomal fashion down the right arm. The left shoulder pain remains limited by crunching and catching with use of the left arm at any level. His low back remained symptomatic but at much the same level as it was before the motor vehicle accident. He feels the neck symptoms have increased.
Clinical examination
80.	The claimant is 178cm tall and weighs 89kg. He walks without aid. He attended the examination alone. He has good English and was cooperative though quite defensive at times, if he felt threatened that the examiner would attempt more movement than he could tolerate. He can stand on either leg and tiptoe neither heel walk nor squat.
81.	Upper limbs: there is wasting of the supraspinatus and infraspinatus fossa on both sides. The deltoids have good bulk and strength. Pain is reported at mid arc with limitation of movement. Crepitus is noted on the right-hand side but not the left. Lift-off sign positive right and left. There is anterior tenderness consistent with impingement of the long head of biceps tendon in shoulder movement on both sides.
82.	The best-of-three shoulder movements are recorded in the table below. 
	Right	Left	
Flexion – figure 38	110° (5% UEI)	110°	
Extension	40° (0% UEI)	40°	
Abduction figure 41	80° (5% UEI)	90°	
ER mid abduction figure 43 	30° (1% UEI)	30°	
IR in mid abduction/spinal level	30° – lumbosacral junction (4% UEI)	30° mid lumbar region	
Adduction figure 41	20° (1%)	20°	
83.	Impingement signs are positive in both shoulders, worse on the right than the left, and shoulder abduction weaker on the right than the left. There is anterior shoulder tenderness, but O’Brien sign is negative in keeping apparently normal function of the long head of biceps tendon right and left.
84.	Calculations: the left shoulder is not normal; no deduction can be made for the existing impairment. The left shoulder was not injured in the accident and therefore its impairment assessment cannot be added to the overall impairment. There is a 15% UEI to the right shoulder which Table 3 translates into a 9% WPI.
85.	Imaging studies reviewed – the claimant had only reports available.
86.	The MRI of the right shoulder is reported as showing a partial thickness bursal sided rim rent type tear of the insertional footprint of the supraspinatus. The medical members of the Panel are of the view that insertional tears tend to be traumatic rather than degenerative. A SLAP 3 lesion is reported with accompanying label cysts and the rest of the shoulder also shows typically degenerative changes. The medical members of the Panel are of the view that this as an acute on chronic rotator cuff lesion.
87.	An ultrasound of 4 May 2022 of the left shoulder and an MRI of 30 June 2022 of the left shoulder revealed a full thickness rotator cuff tear on the left shoulder.
Causation
88.	Right shoulder – the Panel has viewed the photographs of both vehicles involved in the accident. The Panel is of the view that there was fairly significant damage caused to the claimant’s vehicle in the collision. The Panel notes that the photographs of the claimant’s vehicle show the left front wheel is turned markedly outwards. The medical members of the Panel are of the view that steering wheel feedback is a plausible mechanism for causing an injury to the right rotator cuff. The Panel finds that this mechanical strain could have caused and did cause the injury to the right shoulder – an acute on chronic rotator cuff tear.
89.	Left shoulder – the Panel notes the long delay between the accident and investigations of the left shoulder. A full thickness rotator cuff tear was found nearly four years after the accident. The medical members of the Panel are of the view that this late development would be more in keeping with the claimant’s age rather than an injury that could have been caused by the accident. The medical members of the Panel note that the forces transmitted by the steering would be in opposite directions between the shoulders. Whilst the claimant may have injured his right shoulder struggling to resist the turn of the steering wheel towards the left caused by impact, the medical members of the Panel are of the view that these forces would not be present in the left shoulder. 
90.	The medical members of the Panel are of the view that gradual onset of degenerative rotator cuff disease is more consistent with the mechanism of action and the history is of delayed onset of symptoms rather than any direct injury to the left shoulder. 
91.	The Panel acknowledges that the claimant complained of acute left shoulder pain a few days after the accident on 2 and 3 November 2017. There were no further complaints about left shoulder pain until 30 November 2017, more than three years later. On the basis of this evidence, the clinical judgment of the medical members of the Panel is that the early complaints of left shoulder pain in the few days after the accident, was more likely attributable to the neck injury rather than any direct injury to the left shoulder in the accident.
92.	Accordingly, the Panel finds that the injury to the left shoulder – left rotator tear, was not caused by the motor accident.
FINDINGS
93.	The Panel conducted a new assessment of all the matters with which the medical assessment is concerned. 
94.	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: See Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45] and Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21], [64]. 
95.	The Panel adopts the examination findings of the medical members of the Panel in relation to the injury to the right shoulder and the injury to the left shoulder. 
96.	Medical Assessor Home found that there was an assessable injury to the right shoulder caused by the motor accident and assessed this on a range of motion basis at 8% WPI. The Panel has also found that this is an assessable injury caused by the motor accident. However, based on the re-examination findings, the Panel’s assessment for this injury is a WPI of 9%.
97.	The Panel accepts that suffered a pre-existing right shoulder condition arising from a previous motor accident in December 2006. The evidence before the Panel, in particular the clinical notes of Dr Tringali (the general practitioner who has treated the claimant at least from the date of the 2006 accident to June 2023) reveals that there has been no complaints or treatment for this condition since May 2007.
98.	Clause 1.31 of the Guidelines requires a deduction of an impairment in the same region that existed before the motor accident if there is objective evidence of a pre-existing symptomatic permanent impairment in that region at the time of the accident. Given the evidence before the Panel, we are not satisfied that there is objective evidence of symptomatic permanent impairment to the right shoulder at the time of the motor accident.
99.	As previously indicated, the parties have accepted Medical Assessor Home’s finding that the injury to the cervical spine – aggravation of underlying cervical spondylosis, was caused by the motor accident, and assessed as a DRE Category 2, giving rise to a WPI of 5%. 
100.	The parties have also accepted Medical Assessor Home’s assessment that the injury to the lumbar spine – aggravation of underlying lumbar spondylosis, was caused by the motor accident, and assessed as a DRE Category 2, giving rise to a WPI of 0%. 
101.	Adding the WPI assessment of the Panel for the right shoulder of 9% to the accepted WPI accepted assessment of 5%, the Panel makes a finding of a total WPI of 14%. It follows that the degree of permanent impairment of the claimant as a result of the injury caused by the motor accident is greater than 10%. 
CONCLUSION
102.	As the Panel has made a different finding of WPI for the right shoulder injury to that found by Medical Assessor Home, it is appropriate to revoke the certificate of the Medical Assessor Home and to issue a replacement certificate. The new certificate of the Panel is attached to these reasons.