On 10 November 2023 the NSW Personal Injury Commission released its decision in Fajloun v Allianz Australia Insurance Limited  NSWPICMP 534.
The Claimant alleged that he had injured his cervical spine, both shoulders and both hips as the result of a motor vehicle accident.
The Insurer alleged that the Claimant had only sustained threshold injuries.
The matter proceeded to the Commission for determination of whether the Claimant had sustained a threshold physical injury.
A Medical Assessor determined that all the injuries referred for assessment were threshold injuries.
The Claimant lodged a review taking issue with the assessment of the left and right shoulder injuries. They also submitted that the Medical Assessor had not explained why the superior labral tear from anterior to posterior (SLAP) was not caused by the accident.
The President’s Delegate was satisfied that there had been reasonable cause to suspect that the Medical Assessor’s assessment was incorrect in a material respect. The matter was referred to the Review Panel for assessment.
The medical assessment referred to the Review Panel under Schedule 2(2)(e) of the MAIA concerns “whether the left or right shoulder injury caused by the motor accident is a threshold injury“.
The Review Panel referred to the following imaging reports before them:
The Review Panel determined that an MRI is a more accurate diagnostic tool for labral tears than an ultrasound.
The Panel also determined that:
This means that any injury to the left shoulder which occurred as part of the accident is a soft tissue injury and therefore a threshold injury.
As the labrum is a fibrocartilaginous structure, the Review Panel accepted that either of these tears would be a rupture of a soft tissue within the definition of section 1.6(2) of the MAIA and would be a non-threshold injury.
The issue for determination was whether the right shoulder labral tissue tear was caused by the motor vehicle accident.
The Review Panel determined that the Claimant had worked in a physical job as a council grounds person for the last 21 years, although the role did not require hard manual labour – nor was it particularly strenuous. The Claimant would have had a right shoulder vulnerable to injury at the time of the accident.
The Review Panel then reviewed the medical evidence which documented worsening shoulder pain in June and August 2020, which the Claimant states were aggravations of pain arising from the accident.
The Panel noted the absence of a pre-existing history of right shoulder complaints leading up to the date of the accident and determined that the accident had either resulted in a partially torn labrum, or had extended an existing tear in the labrum.
The Review Panel accepted the Claimant’s right shoulder injury as a non-threshold injury for the purposes of the Motor Accident Injuries Act 2017.
The decision in Fajloun v Allianz Australia Insurance Limited  NSWPICMP 534 highlights that even where imaging reports show that a Claimant has pre-existing or degenerative changes, if complaints are not made concerning that particular area in the leadup to the time of an accident, but are then made following the accident, it is likely that the injury was caused by the motor vehicle accident.
The decision also reminds us that an MRI is a more accurate diagnostic tool for labral tears than an ultrasound.
If you have a query relating to any of the information in this case note, or would like to discuss a similar matter of your own, please don’t hesitate to get in touch with CTP Insurance Special Counsel Helen Huang today.
In the matter of Shaw v Insurance Australia Group Limited t/as NRMA Insurance  NSWSC 1273, the claimant alleged that a motor accident on 6 September 2018 caused whole person impairment greater than 10%.