DETERMINATION OF REVIEW PANEL	
	
CITATION:	El-Rifai v QBE Insurance (Australia) Limited [2024] NSWPICMP 126	
		
CLAIMANT:	Omar El-Rifai	
		
INSURER:	QBE Insurance (Australia) Ltd 	
		
REVIEW Panel	 	
		
MEMBER:	Ray Plibersek	
		
MEDICAL ASSESSOR:	Margaret Gibson	
		
MEDICAL ASSESSOR:	Ian Cameron	
		
DATE OF DECISION:	6 March 2024	
		
CATCHWORDS:	MOTOR ACCIDENTS – Claimant was driving a car and wearing a seatbelt when he was rear-ended by another car; Held – original medical certificate regarding threshold injuries caused by the motor accident to claimant’s spine, shoulders and right knee affirmed; original medical certificate regarding proposed treatment and care of right shoulder surgery revoked; proposed treatment and care does not relate to the injury caused by the motor accident and is not reasonable and necessary in the circumstances; on review, the Panel found that the injuries to the claimant’s cervical spine, thoracic spine, lumbar spine left and right shoulders and right knee are all soft tissue injuries caused by the motor accident and are threshold injuries. 
 	
DETERMINATIONS MADE:  	CERTIFICATE OF DETERMINATION
1.	The Review Panel affirms the certificate of Medical Assessor Alexander Woo dated 
10 June 2023 regarding the listed threshold injuries.
2.	The Review Panel revokes the certificate of Medical Assessor Alexander Woo dated 
10 June 2023 regarding treatment and care and issues a replacement certificate determining that: 
(a)	The following treatment and care of a: 
•	right shoulder surgery proposed by Dr Vijay Maniam,
does not relate to the injury caused by the motor accident.
(b)	The following treatment and care of a:
•	right shoulder surgery proposed by Dr Vijay Maniam,
is not reasonable and necessary in the circumstances.

STATEMENT OF REASONS
introduction
1.	On 7 May 2020, Mr Omar El-Rifai (the claimant) was driving a Holden sedan wearing a seatbelt when he was rear-ended by another car on Sydney Olympic Drive, Lidcombe. 
2.	After the accident Mr Omar El-Rifai was taken to Concord Hospital. 
3.	QBE Insurance (Australia) Ltd (the insurer) is the relevant insurer with liability to pay any damages to Mr El-Rifai under the Motor Accident Injuries Act 2017 (MAI Act).
4.	By letter dated 30 October 2020 the insurer wrote to the claimant and advised that it had issued a liability notice determining that the claimant’s injuries were minor.
5.	On 31 March 2021 the insurer also issued a liability notice declining surgery for the claimant’s right shoulder as proposed by Dr Vijay Maniam. 
6.	In an email dated 14 May 2021 the claimant sought an internal review of this decision. The insurer determined its internal review decisions on 4 and 11 June 2021.  The outcome of the internal review was that the minor injury determination was confirmed and the decision to decline the surgery was confirmed. 
7.	The claimant sought a medical assessment of his shoulders, right knee and spinal injuries. The claimant was medically assessed by Medical Assessor Woo on 25 May 2023 who issued a certificate dated 10 June 2023. 
8.	Under recent legislative amendments, a “minor injury” is now known as a “threshold injury” and “minor injuries” are now known as “threshold injuries”.
9.	Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter, including “(e) whether the injury caused by the motor accident is a threshold injury for the purposes of the Act”. 
10.	A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.
11.	On 7 July 2023 the claimant filed an application with the Personal Injury Commission 
(Commission) seeking a Panel review of the certificate of Medical Assessor Woo. 
1.	
2.	
3.	ASSESSMENT UNDER REVIEW
12.	The dispute was initially referred to Medical Assessor Woo who assessed Mr El-Rifai and issued a certificate dated 10 June 2023.
13.	The injuries referred for assessment included: cervical spine, lumbar spine, left and right shoulders and right knee.
14.	Medical Assessor Woo medically examined the claimant on 25 May 2023. He referred to the history of the motor accident, the history of symptoms and treatment following the motor accident, detailed the current symptoms and set out the current and proposed treatment.
15.	Medical Assessor Woo certified that the following injuries were caused by the motor accident given the history of the accident, mechanism of injury, clinical and medical imaging findings. He found that the claimant had the following injuries:
(a)	cervical spine – soft tissue injury with aggravation of pre-existing degenerative changes;
(b)	left shoulder – soft tissue injury; 
(c)	right shoulder – soft tissue injury with aggravation of pre-existing labral tear; 
(d)	thoracic spine – soft tissue injury; 
(e)	lumbar spine – soft tissue injury with aggravation of pre-existing degenerative changes (pars interarticularis defect at L5 with spondylotic grade 1 anterolisthesis and disc bulges at L3/4 and L4/5), and
(f)	right knee – soft tissue injury (joint effusion – resolved).
16.	Medical Assessor Woo found that the aggravation of degenerative changes would have subsided within three to six months following the subject motor accident.
17.	Medical Assessor Woo also certified that the following treatment and care will not improve the recovery of the injured person: the right shoulder surgery with Dr Vijay Maniam, orthopaedic surgeon. Medical Assessor Woo wrote that the rationale or indication for surgery was based on the MRI findings of labral tear following the motor accident. Medical Assessor Woo found no evidence that there was pre-existing labral tear in the right shoulder as revealed by MRI in 2014. He said there are no medical records available to assess his right shoulder condition prior to the subject motor accident. The claimant’s right shoulder symptoms are more likely related to ongoing degenerative changes in the labrum and acromioclavicular joint. Medical Assessor Woo was not satisfied that the right shoulder surgery recommended by Dr Vijay Maniam will improve his recovery. The claimant’s symptoms are likely to persist due to ongoing degenerative changes. His symptoms are likely related to the development of a chronic pain syndrome.
REVIEW PROCEDURE
18.	An application for review of the medical assessment of Medical Assessor Woo was lodged on 7 July 2023 which is within 28 days of the date on which the certificate was made available to the parties.
19.	On 16 August 2023 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel). The delegate’s reasons were that she accepted the submission that Medical Assessor Woo incorrectly characterised the injury “Right shoulder – soft tissue injury with aggravation of pre-existing labral tear” as a threshold injury.
20.	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. 
21.	The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission. Accordingly, the President’s delegate referred the matter to this Panel to assess. 
22.	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.
23.	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.
24.	The review is by way of a new assessment of all matters with which the medical assessment is concerned. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
25.	The Panel issued Directions to the parties dated 17 October 2023 directing that it intended to re-examine the claimant. 
THRESHOLD INJURY (formerly minor injury) – STATUTORY PROVISIONS
26.	The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented on 28 November 2022 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”. 
27.	The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
28.	Any reference in these reasons to “minor injury” is taken to be a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”. 
29.	A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “psychological or psychiatric injury that is not a recognised psychiatric illness”. 
30.	Sub-section 1.6(2) of the MAI Act defines a “soft tissue injury” as:
“[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.”
31.	Section 1.6 of the MAI Act provides that Regulations may be made to exclude or include a specified injury from being a threshold injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
32.	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 threshold injury for the purposes of the MAI Act. 
33.	Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3	The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident. 
5.4	Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5	A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6	The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(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.”
34.	In respect of injury to the neck or spine cls 5.7, 5.8 and 5.9 of the Guidelines provide:
“5.7	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.
5.8	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.
5.9	Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury.”
4.	ASSESSING THE CAUSATION OF INJURIES
35.	The difficult issue of how Medical Assessors are required to assess the causation of injuries in a motor accident has been recently considered in a number of cases. Some of these recent cases are referred to below. 
36.	In Briggs v IAG Limited trading as NRMA Insurance (No. 2) his Honour Justice Wright stated at [35]:
5.	“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of injury
6.	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 AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
7.	6.6	Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows: 
8.	'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: 
9.	1.	The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination. 
10.	2.	The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
11.	This, therefore, involves a medical decision and a non-medical informed judgement. 
12.	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.’”
37.	In Briggs v IAG Limited trading as NRMA Insurance (No. 2), Wright J set out some fundamental principles of how Medical Assessors are required to approach the question of causation in accordance with the Guidelines (in the context of errors made by the second review panel). His Honour said, at [75]-[77]:
“75. This being so, it was necessary for the panel to consider whether the motor accident did cause or contribute to Mr Brigg’s condition. This required, not a consideration of material derived as a result of an internet search for ‘all past and recent high-quality research articles pertaining to MRI imaging of the lumbar spine, with a focus on injury, degeneration and pain’, but rather a consideration of the material referred to in cl 5.6 of the Guidelines, namely all the evidence available to the panel including all relevant findings derived from: 
(1) 	a comprehensive, accurate history, including pre-accident history and pre-existing conditions;
(2) 	a review of all relevant records available at the assessment;
(3) 	a comprehensive description of the injured person’s current symptoms; 
(4) 	a careful and thorough physical examination; and
(5) 	diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination. 
76. 	In Mr Briggs’s case that would include, without attempting to be exhaustive: 
(1) 	Mr Briggs’s age, circumstances and relevant medical history at the time of the motor accident, including whether there was any previous history of lumbar spine pain;
(2) 	the particular nature and extent of the accident and the forces that would have been operative on Mr Briggs as a result of the accident; and
(3) 	Mr Briggs’s circumstances and relevant medical history including the MRI results and results of other medical examinations and testing, after the motor accident. 
77. 	In light of all that material and in accordance with cll 6.6 and 6.7 of the Guidelines, the panel should then have made ‘a non-medical informed judgement’ as to whether it was likely that the motor accident caused or contributed to Mr Briggs’s injury in question.”
38.	In Briggs v IAG Limited trading as NRMA Insurance (No. 3), her Honour Harrison AsJ found that a third review panel’s decision on causation was based wholly on its findings that radiological changes cannot be scientifically proven to be traumatically caused. Her Honour found that in conducting its assessment the third review panel failed to take into account all of the relevant evidence referred to by Wright J in the above passage from Briggs (No. 2). Her Honour then stated: 
“42. 	The third review panel failed to take into account all relevant evidence as required by clause 5.6 of the guidelines, and in light of all that material and in accordance with cls 6.6 and 6.7 of the guidelines, the panel failed to make ‘a non-medical informed judgement’ as to whether it was likely that the motor accident caused or contributed to the plaintiff’s injury.
43.	In relation to the finding as to causation of the injury to the lumbar spine, the third review panel asked itself the wrong question and applied the wrong test. In the same way that the second review panel had fallen into error, the third review panel failed to address the question of causation on the balance of probabilities, instead requiring that the claimant establish causation of the disc injury to the level of medical certainty, rather than on the balance of probabilities.”
39.	In Briggs v IAG Limited trading as NRMA Insurance (No. 3), her Honour Harrison AsJ referred again to the decision of Wright J in Briggs (No. 2) where his Honour cited the following cases and commented: 
“71. 	The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWLR 238 as follows, at 242:
 … it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.
72. 	Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].
73. 	The second review panel did not address the question of whether on the balance of probabilities the motor vehicle accident caused the annular tear even though there might be no scientific certainty. Furthermore, the second review panel’s reasoning did not reflect the approach to determining causation in cll 6.6 and 6.7 of the Guidelines, which in my view is consistent with the legal principles I have outlined.
74. 	For the reasons set out above, the review panel failed to deal with the issue of causation according to law, and, in doing so, constructively failed to exercise its jurisdiction.”
EVIDENCE BEFORE THE REVIEW PANEL
13.	Application for Personal Injury Benefits
40.	The Application for Personal Injury Benefits dated 27 July 2020 notes the reported injuries as including: neck pain, middle back pain, lower back, right and left shoulder pain and right knee.
14.	Police and ambulance reports
41.	The New South Wales ambulance report dated 7 May 2020 included the following record: 
“…PT states he was rear-ended by another car whilst driving at approximately 50 km/h. PT exchanged details and once back in car noticed worsening head pain and called 000 . On examination minimal damage to taillights and back of car, nil airbag deployment. PT was restrained driver.”
42.	The ambulance notes describe that the claimant denied loss of consciousness and denied cervical spine pain. The claimant complained of lateral neck pain and a frontal headache. The PEARL measure was GCS 15. The claimant self-extricated from the car. 
43.	Police did not attend and there were no police reports.
15.	Hospital reports
44.	The emergency department (ED) discharge referral from the Concord Emergency Department dated 7 May 2020, states that Mr El-Rifai “presented with headache and neck pain post slow speed MVA …..there were no significant injuries”.
45.	The ED report from Concord Hospital states that he had CT scan of the cervical spine done due to tenderness in the C5/C6 area. This did not show any fracture. He also had a chest 
X-ray and no thoracic spine fracture was identified. 
46.	The claimant was discharged on 8 May 2020.

Treating medical evidence
Pre-accident treating records 
47.	There were some medical records available for the claimant’s medical history prior to motor vehicle accident.
48.	In bundles of documents the parties produced over 400 pages of clinical and treating medical records for the claimant prior to and after the subject motor vehicle accident. The Panel has reviewed all the treating medical records produced by both the claimant and the insurer.
49.	There appear to be two prior motor vehicle accident recorded as causing injuries affecting the claimant’s neck, shoulders, knee and lumbar spine. The possible motor accidents are recorded as occurring in 2012. The claimant appears to have given an account of the accidents to his treating orthopaedic surgeon Dr Vijay Maniam.  From his handwritten notes Dr Maniam appears to note that a motor accident occurred on 4 July 2012. The notes are not clear to read but it appears that the claimant’s car was stopped and turning left and was hit by another car. The notes read no hospital C5/L5/both shoulders, left knee and neck pain. There appears to be another accident dated 5 August 2012 on the M5. The notes read vehicle was stationary, rear-ended, write off, no hospital. Injuries to neck, shoulder, low back, off from work then return full-time.
16.	Post-accident treating records 
50.	There are numerous certificates of capacity and clinical records available from the claimant’s treating general practitioner (GP) Dr Nayef Kanawati from before and after the subject accident. There are also about 35 pages of handwritten medical records and notes from 
Dr Kanawati but these are unclear and unable to be read by the Panel. 
51.	In certificate of capacity/certificate of fitness dated 22 July 2020 there is a note that Mr El-Rifai was in a previous motor accident referred to as occurring in 2012.
52.	There is a report from Dr Kanawati to the insurer dated 18 August 2020.  Dr Kanawati writes that the claimant had a previous motor vehicle accident in 2012 with injuries to his cervical spine, lumbar spine, both shoulders and right knee. No details of these injuries are provided other than simply listing the injuries. Dr Kanawati reported that the injuries in the 2020 subject motor accident were soft tissue injuries to the cervical spine and lumbar spine. There was tendinitis in both shoulders and both knees. Dr Kanawati wrote that he expected the time for medical recovery to take from three to six months.
53.	There is a report from Dr Vijay Maniam, dated 23 March 2021, who is the claimant’s treating orthopaedic surgeon. Dr Maniam wrote that Mr El-Rifai has suffered from right shoulder problems in the past with initial complaint made about the right shoulder on 16 April 2014. 
Dr Maniam's opinion at that stage was there was a problem with the subacromial or subdeltoid bursitis. An MRI of the right shoulder on 18 December 2014 revealed a fraying posterosuperior labrum and bursitis. Rotator cuff tendons are intact and no evidence of any overt labral tear. An MRI dated 3 December 2020 exhibited an abnormal superior glenoid labrum and a SLAP Type II tear. Dr Maniam wrote that in his opinion the mechanism of the injury to the right shoulder was the axial load from the motor vehicle accident. 
54.	There are six reports prepared by Dr Simon McKechnie who is the claimant’s treating neurosurgeon. These reports are dated between 24 August 2021 and 5 September 2022.
55.	In the report dated 24 August 2021 Dr McKechnie notes that the claimant complained of pain throughout his body, particularly the neck, right shoulder and lower back. Dr McKechnie refers to an MRI of the right shoulder which demonstrates a slap tear with stenosis at C3/C4 and C5/C6 levels. In a report dated 9 November 2021 Dr McKechnie notes that the reported pain is in the lower back and is largely mechanical in nature. He reports no obvious neurological deficits. Dr McKechnie writes that he would not recommend fusion surgery given the absence of nerve root impingement. In further report dated 16 December 2021 
Dr McKechnie records no neurological deficits and again recommends against any surgical intervention. In a report dated 5 September 2022 Dr McKechnie writes that the claimant is still complaining of pain and is waiting for right shoulder surgery. Dr McKechnie again recommends against any neurosurgical intervention at this time he emphasised the need to continue with physiotherapy and strengthening exercises.
17.	REVIEW OF THE RADIOLOGY
56.	There are a large number of X-rays, MRIs and CT scans reporting on the claimant’s cervical, thoracic and lumbar spine and also both shoulders and knees. All of these show a long-standing history prior to the subject motor accident of various complaints about his shoulders, knees and spine.
57.	There is a CT scan of the claimant's right cervical and lumbar spine dated 22 April 2013 which showed: moderate bilateral foraminal narrowing due to uncovertebral joint arthropathy at C5/C6; bilateral pars interarticularis defects at L5/S1 with anterolisthesis; and possible L5 nerve root compression due to disc protrusion at L4/L5. 
58.	On 19 July 2013 an MRI of the claimant’s lumbar spine reported on a: Grade I spondylolisthesis at L5/S1 with bilateral pars defects of L5; suspected small 4mm disc cyst at the right central margin; small left central disc protrusion at L4/5 abutting the left L5 nerve root, and a small left foraminal disc protrusion at L3/4.
59.	On 15 December 2014 there is an MRI scan of the lumbar spine. This scan reported: disc desiccation at L3/4, early anterior and posterior osteophyte formation; bilateral facet joint degeneration, and early profile posterocentral disc protrusion without definite nerve root impingement at L4/5. No nerve root compromise at L3/L4. No nerve root impingement at L4/L5. No compromise of the exiting L5 roots was seen. No definite impingement of the transfers in S1 nerve roots.
60.	There is an MRI of the claimant's right shoulder dated 18 December 2014. This report shows fraying of the posterosuperior labrum consistent with a localised labral injury. Small glenohumeral joint effusion without synovitis. Trace of fluid in the subacromial subdeltoid bursa. Intact rotator cuff.
61.	There is a CT scan of the cervical spine taken in Concord Hospital on 7 May 2020. This found normal cervical spine alignment. There was no fracture or dislocation. There was a fused secondary ossification on the left C1 similar in appearance to 2012. There were small anterior endplate marginal osteophytes at the C4/C5 level. There was no disc bulge spinal canal or for mineral stenosis at any level. The conclusion was that there was no cervical spine fracture or dislocation.
62.	An X-ray of the thoracic spine at Concord Hospital on 7 May 2020 found vertebral body heights maintained. No fracture. Alignment is within normal limits injury.
63.	On 24 July 2020 there is a report of MRIs of the claimant’s right knee, cervical spine and lumbar spine. The MRI of the right knee shows essentially a normal appearance. It is an unremarkable MRI study of the knee joint with no evidence of meniscal or cruciate tear. The MRI of the lumbar spine shows some spondylitic changes but with no significant nerve root compression at the L3/L4 and the L4/L5 level there are mild disc bulges with no significant nerve root compression. The MRI of the cervical spine shows mild spondylitic changes with a small disc bulge at the C3/C4 level with moderate compression of the right C4 nerve roots. At the C4/C5 level there is a mild disc bulge with no significant nerve root compression. At the C5/C6 level there is a mild disc bulge with moderate compression of the C6 nerve more on the left side.
64.	There is an ultrasound dated 22 July 2020 of the claimant's left and right shoulders. These ultrasounds show no tears and no rotator cuff tear. There is bursitis without evidence of shoulder impingement. The report recommends that the claimant may benefit from a steroid injection.
65.	There is an MRI of the claimant's right shoulder dated 12 August 2020.  The report is by 
Dr Jeoffrey Sacks and was included with Dr Maniam's clinical notes. The findings from 
Dr Sacks are supraspinatus tendon, infraspinatus tendon, subscapularis tendon all normal. There is no labral tear or degeneration. No abnormality in the joint. Dr Sacks impression is: no rotator cuff tear or tendinosis; no fracture or bone bruise; no labral tear; and no subacromial subdeltoid bursitis. 
66.	There is an MRI of the claimant's right shoulder dated 2 December 2020. The conclusion of this scan is the presence of a SLAP tear Type II. Mild arthritis in the AC joint. Otherwise unremarkable study of the right shoulder joint.
18.	SUBMISSIONS
19.	Claimant’s submissions
67.	The claimant’s solicitors provided written submissions dated 7 July 2023 and 
24 February 2022.
68.	In its submissions the claimant’s solicitors contended that Medical Assessor Woo found the claimant's right shoulder suffered an aggravation of a pre-existing labral tear which the claimant submits is a cartilage. Consequently an aggravation of a pre-existing labral tear is in fact an aggravation of a pre-existing cartilage tear. Thus, any aggravation should be considered as a further tear of the cartilage. Clause 1.62 clearly provides that a partial rupture of a cartilage is not a soft tissue injury. Consequently an aggravation of a pre-existing cartilage tear or a further tear of the cartilage is not a soft tissue injury. Thus the Medical Assessor has wrongly concluded that the partial cartilage tear in the right shoulder is not a threshold injury.
69.	The claimant submits that Medical Assessor Woo erred in finding that the claimant's neck mid back and lower back injuries are threshold injuries because the claimant had previously clearly displayed signs of radiculopathy. In support of its argument that a finding of radiculopathy should be made the claimant’s solicitors relied upon a number of reports from Dr Simon McKechnie.
70.	The claimant contended that Medical Assessor Woo should have found that the claimant at some stage suffered from radiculopathy to his cervical spine, thoracic spine and lumbar spine as a result of the motor vehicle accident. These are not threshold injuries.
71.	Regarding the treatment dispute about the right shoulder surgery proposed by Dr Vijay Maniam the claimant notes that Dr Maniam has treated the claimant’s right shoulder injury since 2013. The claimant argues that it is not clear from Medical Assessor Woo’s certificate whether he is rejecting the surgery to the right shoulder because it will not improve the recovery of the injured person or because the condition was pre-existing. Consequently Medical Assessor Woo has clearly failed to articulate a clear path of reasoning.
72.	In the earlier submissions dated 24 February 2022 the claimant submits that the MRI report of 2 December 2020 shows the claimant had a SLAP tear Type II injury to the right shoulder. This is not shown in the previous MRI report of 18 December 2014. The SLAP tear Type II injury to the right shoulder was causally connected to the accident of 7 May 2020. This is not a minor injury.
Insurer’s submissions
73.	The insurer has provided written submissions dated 31 July 2023 and 18 March 2022. 
74.	In the submissions dated 31 July 2023 the insurer’s solicitors submit that 
Medical Assessor Woo referred to an MRI of the right shoulder in 2014 which showed a localised labral injury which shows that the injury was pre-existing and not related to the acute trauma of the subject motor accident.
75.	Regarding the alleged error that the Medical Assessor did not reference radiculopathy to the claimant’s cervical spine, thoracic spine and lumbar spine. The insurer responds that Medical Assessor Woo reviewed all the available evidence but was not satisfied that radiculopathy was present. Specifically at page 14 of his certificate, Medical Assessor Woo stated that there were not two or more of the five signs required for the diagnosis of radiculopathy present in the upper and lower limbs. The insurer submits that Medical Assessor Woo has clearly considered all the medical material and corroborated this with the history and symptoms reported to him by the claimant at the assessment.
76.	Regarding the treatment dispute about the right shoulder the insurer argues that the Medical Assessor did give a clear path of reasoning substantiating his conclusion that the labral injury shown on the MRI following the subject motor accident was pre-existing and not related to any acute trauma. The insurer points to the Medical Assessor’s conclusion that the claimant’s right shoulder symptoms are more likely related to ongoing degenerative changes in the labrum and AC joint and that the surgery recommended by Dr Maniam will not improve the claimant’s recovery.
77.	In the earlier submissions dated 18 March 2022 the insurer submits that the claimant's accident-related injuries are minor injuries for the purposes of the MAI Act and the proposed treatment for the right shoulder does not arise from injuries that are causally related to the subject accident and are not reasonable and necessary.
78.	The insurer submits that it has correctly determined that the claimant's injuries are minor injuries or unrelated to the accident and highlights the following: 
“…(a) right shoulder tear cannot relate to the subject accident because the MRI performed on 12 August 2020 showed no tear in the right shoulder and the Claimant had been reporting of symptoms in his shoulder since 2012.
(b) Left shoulder impingement with subacromial and subdeltoid bursitis were pre-existing because of the radiological investigations in June 2014 and December 2014.
(c) Cervical spine because there is no identification of 2 or more of the clinical signs as
required by the clause 5.8 of the Guidelines.
(d) Thoracic spine because the Claimant alleges that he sustained a soft tissue injury to his thoracic spine, which is a minor injury.
(e) Lumbar spine injuries were not caused by the accident as the Claimant clearly suffered from those symptoms before the accident.
(f) Right knee should be considered as minor injury based on the available evidence.” 

79.	With respect to the proposed treatment, the insurer submits that claimant's right shoulder SLAP tear is revealed by pre-accident investigations to be unrelated to the subject accident. Consequently, the proposed treatment by Dr Maniam to the right shoulder is: (a) not causally related to injuries sustained in the accident; and/or (b) not reasonable and necessary in the circumstances.
MEDICAL EXAMINATION
Details of who attended the assessment
80.	Mr El-Rifai attended for re-examination by Medical Assessor Cameron on 
28 November 2023. He was accompanied by Mr Bilal Akyleh, who is his carer, and the Arabic Interpreter, Mr Assoum. A NAATI certified interpreter for the Arabic language.
Background
81.	Mr El-Rifai is living alone at Punchbowl. He is divorced. He has a daughter. 
82.	 Mr Akyleh lives close by and is in receipt of a Centrelink carer pension because of the assistance he provides to Mr El-Rifai. 
83.	Mr El-Rifai appears to be in receipt of a disability support pension but it is unclear when that commenced. 
84.	There is a history of multiple motor vehicle accidents in 2012 based on the information provided by Mr El-Rifai. 
85.	Mr El-Rifai is a non-smoker.
History of injury
86.	On 7 May 2020 Mr El-Rifai was the driver of a vehicle. He said his vehicle was moving and he was hit from behind. He said he developed pain from his neck, lower back and left shoulder. 
87.	An ambulance attended. He was taken to Concord Hospital.
88.	Subsequently Mr El-Rifai attended the GP Dr Kanawati.
89.	Mr El-Rifai had ongoing symptoms. Dr Kanawati referred him to Dr Maniam. Mr El-Rifai had seen Dr Maniam over a period of a number of years from 2013. Mr El-Rifai said that previously he had seen Dr Maniam principally about back pain. He said there had not been a significant problem with his right shoulder. However, there had been past imaging of the right shoulder and an MRI in 2014 is said to show a labral abnormality.
90.	Mr El-Rifai said Dr Maniam recommended surgery to his right shoulder. He said this was declined by the insurer. He said there have been multiple shoulder injections. There have also been multiple lower back injections and a neck injection. There has been input from 
Dr McKechnie, spinal surgeon. There was also an appointment with another orthopaedic surgeon regarding the right shoulder.
91.	Mr El-Rifai's symptoms have persisted.
20.	Current status
92.	Mr El-Rifai said that he had worsening symptoms generally. This is continuing lower back pain, neck pain and right shoulder pain.
93.	Mr El-Rifai said his current medications are Lyrica 300 mg daily and tramadol 200 mg daily. The GP continues to be Dr Kanawati. 
94.	 Mr El-Rifai said that he is not able to drive. He said he is not able to cook. He said he is not able to clean his home. He said that Mr Akyleh assists with these activities. 
21.	Examination
95.	Mr El-Rifai was right- handed, 182cm in height and weighed 117kg. This is a BMI of 35.
96.	Mr El-Rifai was co-operative. He spoke in a mixture of English and Arabic. No cognitive impairment was detected. 
97.	At the cervical spine there was markedly and symmetrically reduced range of motion (to 40% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present. Nerve tension signs were negative.
98.	There was a full range of motion at the left shoulder. At the right shoulder there was inconsistent movement that Mr El-Rifai said was due to variable pain. The maximum observed movements at this shoulder was abduction 170 degrees, adduction 30 degrees, flexion 140 degrees, extension 30 degrees, external rotation 80 degrees, internal rotation 80 degrees.
99.	There was a full range of motion at other upper extremity joints. 
100.	There were no neurological abnormalities in the upper extremities. 
101.	Circumferences of the upper extremities were right 31cm and left 31cm. 
102.	At the thoracic spine there was moderately and symmetrically reduced range of motion (to 60% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present. 
103.	At the lumbar spine there was markedly and symmetrically reduced range of motion (to 40% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present. Nerve tension signs were negative.
104.	At the right knee range of movement was 0 to 120 degrees with no crepitus or instability.
105.	At the left knee range of movement was 0 to 130 degrees with no crepitus or instability.
106.	There was a full range of motion at other lower extremity joints. 
107.	There were no neurological abnormalities in the lower extremities, except the right ankle jerk was reduced. 
108.	Circumferences of the lower extremities were right 42cm and left 41cm. 
109.	Mr El-Rifai had a number of pain behaviors with an abnormal flexed posture at the lumbar spine. He walked slowly. 
110.	The Panel was not supplied with imaging studies to review.
DIAGNOSIS, CAUSATION AND SUMMARY OF PANEL’S OPINION
111.	In the motor vehicle crash on 7 May 2020 Mr El-Rifai sustained a number of soft tissue injuries. Based on the contemporaneous documentation these were predominantly to his cervical spine and lumbar spine. He also could have sustained soft tissue injuries to other body parts including his shoulders. 
112.	The Panel notes that Mr El-Rifai has a significant past history of disability following a motor vehicle accident or accidents in 2012. The Panel also notes that Mr El-Rifai has received treatment from Dr Vijay Maniam since about 2012 for his spine and shoulder complaints. 
Cervical spine soft tissue injury 
113.	The Panel accepts that Mr El-Rifai sustained soft tissue threshold injury to his cervical spine as a result of the accident. A complaint about the cervical spine is referred to in the ambulance and hospital records with cervical pain and stiffness. The claimant had a CT scan of the cervical spine done due to tenderness in the C5/C6 area. This showed normal cervical spine alignment and did not show any fracture. At the re-examination and medical assessment, the Panel found there was markedly and symmetrically reduced range of motion (to 40% normal) in all planes. At the re-examination the Panel found no dysmetria, muscle spasm, or guarding in either the neck or back. There were no ongoing radicular symptoms or signs in either upper limb. Therefore, the appropriate assessment for his cervical spine was that it was a soft tissue injury.
Thoracic spine soft tissue injury 
114.	The subject motor accident was a cause of this soft tissue threshold injury. As referred to in the hospital records from Concord Hospital which states that the claimant had chest X-ray and no thoracic spine fracture was identified. The hospital record indicated the claimant reported some pain in his spine. At the re-examination and medical assessment, the Panel found there was markedly and symmetrically reduced range of motion (to 60% normal) in all planes. At the re-examination the Panel found no dysmetria, muscle spasm, or guarding in either the neck or back. There were no ongoing radicular symptoms or signs in either upper limb. Therefore, the appropriate assessment for his thoracic spine was that it was a soft tissue injury.
Lumbar spine soft tissue injury
115.	The subject motor accident was a cause of this soft tissue threshold injury to the lumbar spine. The hospital record indicated there was no significant tenderness in the lumbar spine. At the re-examination and medical assessment, the Panel found at the lumbar spine there was markedly and symmetrically reduced range of motion (to 40% normal) in all planes, with no muscle spasm, no muscle guarding, no dysmetria, no non-verifiable radicular complaints present. Nerve tension signs were negative. Therefore, the appropriate assessment for his lumbar spine was that it was a soft tissue injury.
116.	The Panel notes the claimant’s long-standing complaints and symptoms recorded in his medical records. The Panel notes the CT scans and MRIs from 2013 onwards showed disc protrusions and degenerative disease in the lumbar spine. The claimant’s treating neurosurgeon, Dr Simon McKechnie reviewed the claimant in 2021 and 2022. In a report dated 9 November 2021 Dr McKechnie notes that the reported pain is in the lower back and is largely mechanical in nature. He reports no obvious neurological deficits. Dr McKechnie writes that he would not recommend fusion surgery given the absence of nerve root impingement.
Left and right shoulders
117.	The Panel accepts that the claimant experienced soft tissue threshold injuries to both his shoulders caused by or as a result of the motor vehicle accident. At the re-examination and medical assessment, the Panel found there was a full range of motion at the left shoulder. At the right shoulder there was inconsistent movement that Mr El-Rifai said was due to variable pain. The maximum observed movements at this shoulder was abduction 170 degrees, adduction 30 degrees, flexion 140 degrees, extension 30 degrees, external rotation 80 degrees, internal rotation 80 degrees.
118.	The Panel notes that the claimant had long-standing complaints about both shoulders for some years before the subject motor accident. In 2012 his treating orthopaedic surgeon 
Dr Vijay Maniam notes that the claimant seems to have reported two motor accidents where his reported injuries included: spine at the C5 and L5 levels, both shoulders, left knee and neck pain. Dr Maniam wrote that Mr El-Rifai has suffered from right shoulder problems with initial complaint made about the right shoulder on 16 April 2014. An MRI of the right shoulder on 18 December 2014 revealed a fraying posterosuperior labrum, bursitis and a localised labral tear. There is an ultrasound dated 22 July 2020 of the claimant's left and right shoulders which showed no tears and no rotator cuff tear. There was bursitis without evidence of shoulder impingement. There is an MRI of the claimant's right shoulder dated 
12 August 2020 by Dr Jeoffrey Sacks. The findings from Dr Sacks are supraspinatus tendon, infraspinatus tendon, subscapularis tendon all normal. There is no labral tear or degeneration. No abnormality in the joint. Dr Sacks impression is: no rotator cuff tear or tendinosis; no fracture or bone bruise; no labral tear; and no subacromial subdeltoid bursitis. There is an MRI of the claimant's right shoulder dated 2 December 2020. The conclusion of this scan is the presence of a SLAP tear Type II. Mild arthritis in the AC joint. Otherwise unremarkable study of the right shoulder joint.
119.	Based upon the re-examination of the claimant’s shoulders together with its review of all the clinical notes and pre and post-accident radiological evidence it is clear that the claimant had some long - standing complaints about both his shoulders. Some of the radiological evidence shows a SLAP tear in December 2020 but the earlier ultrasound and MRI of the claimant's right shoulder in July and August 2020 shows no tears. Accordingly it is difficult to reach the conclusion that the subject accident caused the right shoulder tear. In the Panel’s view, having considered all the evidence, the subject motor accident likely caused soft tissue injuries to both shoulders but did not cause or contribute to the right shoulder SLAP tear. 
120.	In reaching its conclusions about the causation of the claimant’s left and right shoulder injury the Panel has carefully considered and applied the definition of causation of injury under Part 6 of the Guidelines and also the court decisions referred to earlier in these reasons. The Panel is not satisfied that the subject motor vehicle accident materially contributed to the claimant’s right shoulder SLAP tear injury or caused or exacerbated any such injury.
22.	Right knee 
121.	The Panel accepts that Mr El-Rifai sustained a soft tissue threshold injury to his right knee as a result of the accident. At the re-examination of both knees the Panel found with the right knee range of movement was 0 to 120 degrees with no crepitus or instability. At the left knee the Panel found range of movement was 0 to 130 degrees with no crepitus or instability. The Panel found a full range of motion at other lower extremity joints. There were no neurological abnormalities in the lower extremities, except the right ankle jerk was reduced. 
122.	Accordingly Mr El-Rifai sustained soft tissue injury to his right knee caused by the motor accident but this has now resolved. 

TREATMENT DISPUTE
123.	The claimant had pre-existing degenerative changes to his right shoulder which was shown after his first motor accidents in 2012. There is labral fraying and injury shown on the MRI in 2014 preceding the subject motor accident which shows there was a pre-existing injury to the labrum in the right shoulder. The Panel considers the tear injuries to his right shoulder to be degenerative and a wear and tear condition. 
124.	Surgery is not reasonable and necessary in this case. Mr El-Rifai is a poor candidate for shoulder surgery. He is likely to have persisting disability which could be worsened by the surgery. Based upon the Panel’s re-examination of Mr El-Rifai together with its review of all the medical evidence there is no aggravation of the known prior condition of his right shoulder which was symptomatic prior to the subject accident in 2020 and had a showed similar symptom distribution before the subject accident.
Proposed treatment and care
125.	The Panel’s conclusion is that the right shoulder surgery proposed by Dr Vijay Maniam is not reasonable and necessary in the circumstances of the claimant’s case and does not relate to the injury caused by the motor accident. 
126.	Surgery not reasonable and necessary. Mr El-Rifai is a poor candidate for shoulder surgery. He is likely to have persisting disability which could be worsened by the surgery.
127.	In this claimant’s case, the Panel is satisfied that the proposed treatment and care does not relate to the injury caused by the motor accident. As discussed above.
Reasonable and necessary in the circumstances
128.	In such a case the claimant is required to establish that the treatment is both “reasonable and necessary”. This test differs from the workers compensation legislation which requires a worker to establish that the treatment is “reasonably necessary”. There is a stricter requirement under the motor vehicle accidents legislation because there is no moderation of the requirement that the treatment is “necessary”.
129.	When discussing the meaning of “reasonably necessary” under s 60 of the Workers Compensation Act 1987 in Clampett v WorkCover Authority of NSW, Grove J stated:
“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.”
130.	Similar observations have been subsequently made by the Court of Appeal on the meaning of “reasonably necessary” under other legislation. 
131.	Factors relevant to, but not determinative, of the criteria of reasonableness in the context of the workers compensation legislation are well settled. They include:
(a)	the appropriateness of the particular treatment;
(b)	the availability of alternative treatment;
(c)	the cost of the treatment;
(d)	the actual or potential effectiveness of the treatment, and
(e)	the acceptance by medical experts of the treatment as being appropriate or likely to be effective.
132.	Whilst the observations in Diab were directed to the test of “reasonably necessary” in the workers compensation legislation, we adopt it insofar as they have relevance, although not determinative, of the stricter test of “reasonable and necessary”. 
133.	The words “in the circumstances” in the context of whether the treatment is “reasonable and necessary” must refer to the particular circumstances of the claimant. This is because Schedule 2 of the MAI Act refers to treatment “provided or to be provided to the claimant”.
134.	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 consideration of whether treatment “relates to the injury caused by the accident”.
Does the proposed treatment relate to the injury resulting from the motor accident 
135.	The question for the Panel is whether the specified treatment “relates to the injury caused by the motor accident”. That application of the common law test of causation in assessing the degree of impairment resulting from injury under the workers compensation legislation was discussed by the Court of Appeal in Secretary, New South Wales Department of Education v Johnson. These principles are well settled and equally apply by reasons of the words used in the treatment issue. 
136.	The motor accident need only be a material contribution to the need for treatment: AAI Limited v Phillips. 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 MAC Act. Those words are almost identical to the wording in Schedule 2 of the MAI Act.
137.	In this case the Panel accepts that there was a soft tissue injury to the claimant’s right shoulder caused by the motor accident including whether by way of aggravation of pathology or exacerbation of symptoms. However, the Panel does not accept that the proposed surgery treatment relates to the soft tissue injury caused by the motor accident and is not reasonable and necessary in the circumstances. 
CONCLUSION AND CERTIFICATION
138.	The Panel’s opinion is that the accident caused soft tissue injuries to the claimant’s cervical, thoracic and lumbar spine and also to his right knee and shoulders. However, the SLAP tear injuries noted in the right shoulder were not caused by the motor accident, as these were pre-existing. 
139.	For the above reasons the Panel affirms the certificate of Medical Assessor Alexander Woo dated 10 June 2023 that the following injuries caused by the motor accident are threshold injuries (formerly minor injuries): 
•	cervical spine – soft tissue injury; 
•	thoracic spine – soft tissue injury;
•	lumbar spine – soft tissue injury;
•	left shoulder – soft tissue injury;
•	right shoulder – soft tissue injury, and
•	right knee – soft tissue injury.
140.	Regarding the treatment and care of the right shoulder surgery proposed by Dr Vijay Maniam, the Panel has reached a similar conclusion to Medical Assessor Woo but revokes the certificate issued by Medical Assessor Woo. The Panel has revoked the certificate and reissued a replacement certificate in a different form. The proposed treatment and care does not relate to the injury caused by the motor accident and is not reasonable and necessary in the circumstances. 
141.	The new certificate for treatment and care is attached at the commencement of these reasons.