Abdo v QBE Insurance (Australia) Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Abdo v QBE Insurance (Australia) Limited [2023] NSWPICMP 694
CLAIMANT:	Jack Hikmat Abdo Abdo
INSURER:	QBE Insurance (Australia) Limited
REVIEW PANEL
MEMBER:	Alexander Bolton
MEDICAL ASSESSOR:	Margaret Gibson
MEDICAL ASSESSOR:	Tai-Tak Wan
DATE OF DECISION:	21 December 2023
CATCHWORDS:	MOTOR ACCIDENTS – Whether injuries to the claimant’s cervical spine, thoracic spine, lumbar spine and right knee were threshold injuries; decision reviewed of Medical Assessor (MA) Truskett dated 22 February 2022; accident on 11 March 2021 when a thief stole the claimants car whilst parked in a driveway and the claimant gave chase suffering injury when struck by the car and falling to the ground on the gutter and striking his front side, back and head on the gutter; MA Truskett found that the claimant’s injuries to his cervical spine, thoracic spine, lumbar spine and right knee were all threshold injuries; claimant applied for review of decision; claimant was admitted to hospital and discharged the same day; multiple scans and investigations undertaken; claimant complaining of ongoing and persistent pain pre-accident when the claimant had multiple scans and treatment for the right side of his neck, both knees and lumbar spine; pre-accident the claimant had a disc prolapse at the C5/6 and C6/7 levels, the disc prolapse at the L2/3 level and a disc prolapse at the T9/T10 and T12/L1 levels as well as a right knee fracture claimant said radiculopathy identified by his GP but the Panel not satisfied about the method of assessment/identification on examination; the Panel was not satisfied about any evident radiculopathy; Held – claimant’s injuries to his cervical spine, thoracic spine, lumbar spine and right knee were causally related to the accident and were all threshold injuries
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION DETERMINATION The Panel determines that; 1. The Panel affirms the certificate of Medical Assessor Truskett dated 22 February 2022. 2. The following injuries were caused by the motor accident: (a) cervical spine – soft tissue injury; (b) thoracic spine – soft tissue injury; (c) lumbar spine – soft tissue injury, and (d) right knee – soft tissue injury. 3. The following injuries are threshold injuries: (a) cervical spine – soft tissue injury; (b) thoracic spine – soft tissue injury; (c) lumbar spine – soft tissue injury, and (d) right knee – soft tissue injury.

Background

This is an application by the claimant to review the decision of Medical Assessor Truskett (the Medical Assessor) of 22 February 2022.
The following injuries have been referred to the Personal Injury Commission (Commission) for assessment:
(a)   whether the cervical spine – disc prolapse on C5/6 and C6/7 level injury caused by the motor accident is a minor injury;
(b)   whether the lumbar spine – disc prolapse on L2/3 level injury is a minor injury;
(c)   whether the right knee fracture injury is a minor injury, and
(d)   whether the thoracic spine – disc prolapse on T9/T10 and T12/L1 levels injury is a minor injury.
The Medical Assessor found the following injuries were caused by the accident:
(a)   cervical spine soft tissue injury;
(b)   lumbar spine soft tissue injury;
(c)   right knee soft tissue injury, and
(d)   thoracic spine soft tissue injury.
The Medical Assessor found that all of these injuries were threshold injuries.
The Medical Assessor found that the following injuries were not caused by the accident:
(a)   cervical spine prolapse disc C5/6 and C6/7;
(b)   lumbar spine prolapse disc L2/3;
(c)   right knee fracture, and
(d)   thoracic spine prolapse disc T9/10 and T12/L1.
The parties have each presented their respective bundles of documents upon which they rely. The Panel have read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel or a Panel Member has not read it, in much the same manner as parties not referring to or not specifically relying on a document in their own bundle and submissions.

LEGISLATIVE BACKGROUND

The legislation

Part 7 of the Motor Accident Injuries Act 2017 (the Act) contains provisions relevant to the resolution of disputes. Division 7.5 provides for the internal review by insurers of medical disputes before a matter can be referred for medical assessment, procedures for medical assessment and the ability for a party to seek one further medical assessment and the review of medical assessments.
The claimant’s application for review is made under s 7.26 of the Act. Pursuant to s 7.26(5A) the Panel is to be constituted of a Member of the Commission and two Medical Assessors. Section 7.26(6) provides that the review is a fresh assessment of all matters before the original assessor and is not limited to a reconsideration of only the matters alleged in the application to be incorrect.

9.Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before the Panel.

The Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act and Rule 128 provides that a Review Panel can determine how it conducts and determines the proceedings before it.

Consideration of the issues by the Panel

Clause 5.6 of the Motor Accident Guidelines (the Guidelines) provides guidance to treating practitioners, medico-legal practitioners and Medical Assessors as to how to conduct a medical assessment and is set out below:
“5.6 The assessment of whether an injury caused by the accident is a minor injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”

Does the claimant have cervical and/or lumbar radiculopathy?

Radiculopathy is a medical term used by treating doctors, medico-legal examiners and Medical Assessors alike. Radiculopathy is used within the Guidelines in both the assessment of whole person impairment (to distinguish between categories II and III) and in threshold injury assessments.
In Chapter 5 of the Guidelines, the heading “Soft issue assessment – injury to a spinal nerve root” appears above the definition of radiculopathy in cl 5.6 as follows:
“Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination ...
(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.”
For the claimant’s injuries to fall outside the definition of a threshold injury in s 1.6, he or she would need to have two of the above signs. Pain is not one of the five signs of radiculopathy which might indicate an injury to a spinal nerve root.
The Motor Accident Injuries Amendment Act 2022 (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”.
The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
For motor accidents occurring on or after 1 April 2023, the entitlement to statutory benefits for a threshold injury have increased from 26 weeks to 52 weeks.
Accordingly, an injury which does not fall within the definition of a threshold injury (“a non-threshold injury”) means that a claimant has an entitlement to claim damages and, subject to other exclusions, receive statutory entitlements beyond either the 26 week or 52 week limitation period.
It should also be noted that in a common law damages claim, no damages are recoverable if the claimant’s injuries are “minor” injuries.
Pursuant to Schedule 2, cl 2 of the Act, various matters are declared to be a medical assessment matters, including (e) “whether the injury caused by the motor accident is a minor injury for the purposes of the Act”.

Threshold injury

A threshold injury is defined in s 1.6 of the Act as a “soft tissue injury” and a “minor psychological or psychiatric injury”. Section 1.6(2) of the MAI Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
In summary, if a person injured in a car accident has soft tissue injuries only then, unless one of those soft tissue injuries falls within the excluding cl of s 1.6(2) the injured person’s statutory benefits cease in accordance with ss 3.11 and 3.28. If a person injured in a car accident has an injury to a structure (such as a bone) or an injury to an organ, that injury will not be a non-threshold injury.
Section 1.6(4) provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a minor psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder (in terms of psychiatric or psychological injuries).
Section 1.6(5) says that the Guidelines may provide for the assessment of whether an injury is a minor injury. Relevantly to the matters in issue in the claimant’s claim, cls 5.7 to 5.9 of the Guidelines are headed “soft tissue assessment – injury to a spinal nerve root” and cl 5.7 provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
Clause 5.8 defines radiculopathy and adopts the method of assessment provided for in the whole person impairment chapter of Part 6 of the Guidelines. Clause 5.9 then provides:
“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 minor injury.”
Clauses 5.10 to 5.12 are not relevant to the matter before the Panel as they deal with psychological or psychiatric injuries.

Method of assessment

Part 5 of the Guidelines contain the procedure for assessing whether an injury resulting from the motor accident is a “minor injury” for the purposes of the Act. In respect of the medical assessment of whether an injury is a minor injury or not, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a minor psychological or psychiatric injury caused by the motor accident.
5.5     Diagnostic imaging is not considered necessary to assess minor injury.
5.5    A diagnosis for the purpose of a minor injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6    The assessment of whether an injury caused by the accident is a minor injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
The Panel notes that the claimant initially sought a medical assessment to determine whether the claimant’s alleged accident related physical injuries were non-threshold injuries in accordance with the Act. The Panel did not consider that a physical medical examination of the claimant was required. A direction was sent to the parties requesting confirmation about whether a physical medical examination on behalf of the parties was required. The insurer did not respond. The claimant, confirmed that no further medical examination of the claimant, by way of review by the Panel, was required.
Clinical notes of Dr Naeem Hanna and Dr Matthew Giblin were not initially provided by the claimant but were subsequently lodged by the claimant. This documentation has been reviewed as part of the claimant’s bundle of documents.

The accident

The accident occurred on 11 March 2021. The claimant’s car was parked in a driveway when an unknown person got into this car and stole it. As the unknown person backed the car out of the driveway, the clamant and his brother chased the vehicle. His brother went to the driver’s side door to try and open it and the claimant went to the passenger side. The car apparently continued reversing onto the street and turned left. The left side of the vehicle struck the claimant’s left side. He fell to the ground landing on the gutter, falling on his front side then falling back and striking his head on the gutter.

Claimant’s submissions

Injury to the neck

The claimant submits that the Medical Assessor failed to assess the claimant in accordance with cl 5.9 of the Guidelines. The claimant says that the Medical Assessor failed and/or overlooked to conduct a proper assessment of the clinical symptoms reported by the claimant.
The claimant says that during the assessment he complained of “pain at the back of his neck which radiates to the top of both shoulders. Pain is present all the time and would score 7/10 most of the time”.
The claimant referred to a CT scan of the cervical spine and said that this evidenced “minor broad-based disc bulge.”
The claimant says that notwithstanding this, the Medical Assessor noted that there were no issues to the neck. The claimant says that this failed to address why the claimant continued to experience constant pain to his neck.

Injury to the back and knee

The claimant says that during the assessment by the Medical Assessor he complained that;
“pain is present all the time and would score 9/10 and may exacerbate to 10/10 which will occur every few days.. This exacerbation may last one to 2 days and be precipitated by bending, stooping, lifting and similar activities…. Pain will radiate down to the back and side of his left leg to the bottom of his foot in a radicular distribution (S1).”
The claimant says that on examination, the Medical Assessor noted the following;
(a) reduced sensation over the lateral aspect centred on his right knee joint with approximately 10 cm diameter, scoring 8/10 compared to 10/10 on the other side… This was non-radicular in nature, and
(b) reduced range of back movement.
The claimant referred to cl 5.9 of the Guidelines and two or more clinical signs for radiculopathy. The claimant says that pursuant to the Guidelines, non-verifiable radicular complaints are;
“symptoms (for example, of shooting pain, burning sensation, tingling) that follow the distribution of a specific nerve root, but there are no objective clinical findings(signs of dysfunction of the nerve root for example, loss or diminished sensation, loss of diminished power, loss or diminished reflexes).”
The claimant says that during examination he demonstrated the following;
(a)   reduced sensation to his right knee joint;
(b)   reduced range of back movement, and
(c)   tenderness over the right lower lumbar region.
The claimant says that it appears that the Medical Assessor has not made a proper assessment of the claimant in accordance with his current clinical symptoms along with medical records. It is submitted that the Medical Assessor did not consider radicular symptoms which are set out in cl 5.9 of the Guidelines which are relevant to the claimant’s neck and back injury. It is submitted that this is primarily on the basis that radicular patterns are to be assessed for neck or spinal injury.
The claimant says that he was completely asymptomatic for his neck, knee and back (presumably pre-accident).

Insurer’s submissions

The insurer refers to s 1.6(1) of the Act, which defines a minor injury (now known as threshold injury) as consisting of a “soft tissue injury”.
The insurer says that s 1.6(2) of the Act, defines a soft tissue injury as;
“an 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.”
The insurer refers to reg 4(1) of the Motor Accident Injuries Regulation which states that “An injury to a spinal nerve root that manifests in neurological signs (other than radiculopathy) is included as a soft tissue injury for the purposes of the Act.”
The insurer says that cl 5.8 of the Guidelines defines radiculopathy as;
“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.”
The insurer notes that where two or more signs of radiculopathy are not present the injury is deemed to be a threshold injury.
The insurer refers to cl 5.6 of the Guidelines which states that;
“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.”
The insurer says that the claimant’s pre-existing history of back pain is further reiterated in both the initial Certificate of Capacity dated 23 April 2021, where Dr Hanna confirmed a past medical history of “Mild T12/L1 disc bulge & L1/L2 disc bulge”, and on page 4 of the Application for personal injury benefits dated 18 May 2020, with the claimant acknowledging that “previous back pain” was affecting same or similar parts of his body at the time of the subject motor accident.

Therefore, the insurer submits, the claimant’s pre-existing back pain is a highly relevant consideration in determining whether he has suffered a threshold injury for the purposes of the Act, especially in relation to his alleged cervical, lumbar and thoracic spine injuries.
The insurer says that the claimant has failed to provide any evidence which indicates that there was an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.
In addition, the insurer says that the claimant has also been unable to tender any medical evidence which reveals the presence of any clinical signs of radiculopathy in accordance with the criteria listed in cl 5.8 of the Guidelines.
The insurer further submits that imaging conducted of the whole spine confirms there to be no bony injury or neural compromise, and there is no evidence from the available information which confirms a right knee injury was suffered as a result of the subject motor accident.
The insurer refers to page 4 of the Certificate of Reasons of the Medical Assessor to submit that based on the available information from the claimant’s treating practitioners and objective evidence, including imaging, the injuries caused by the subject motor vehicle accident are the following:
(a)    soft tissue injury-cervical spine;
(b)    soft tissue injury-thoracic spine;
(c)     soft tissue injury-lumbar spine;
(d)     laceration-scalp, and
(e)    laceration-left thumb.
The insurer says that, further, there is an absence of evidence regarding the purported injury to the right knee.
Therefore, the insurer submits, the physical injuries suffered by the claimant from the subject motor accident are soft tissue injuries and consequently minor injuries for the purposes of
s 1.6 of the Act.
In the personal injury claim form, the claimant’s injuries are listed as;
(a)   injury to neck;
(b)   injury to the back;
(c)   injury to both knees;
(d)   injury to the shoulders, and
(e)   psychological injuries.

Medical evidence

The accident occurred on 11 March 2021. The claimant was admitted to Liverpool Hospital and discharged on 11 March 2021. The claimant acknowledged that he had a pre-existing condition of back pain.
A discharge summary from Bankstown Hospital noted treatment around 6 October 2021 for central chest pain.
The claimant reported to the Medical Assessor that immediately after the accident, he had cuts and abrasions on his left hand that were cleaned. Imaging was performed. His neck was placed in a collar. He was assessed and observed overnight and discharged home.
After one month however, because of pain and dizziness he informed the Medical Assessor that he attended his local medical officer (LMO), Dr Hanna, of Blacktown. Imaging was performed and he was told that he had “issues with his neck and back”.
An X-ray of the thoracic spine on 23 June 2017 showed mild spondylotic change in the discovertebral joints with evidence of endplate sclerosis and endplate osteophyte formation. An X-ray on the same day of the lumbosacral spine showed similar results.
An MRI scan of the full spine on 13 May 2021 showed minimal disc bulges at C5/6 and C6/7 without disc protrusions. At L1/2 there was mild disc height loss with disc dislocation and diffuse disc bulge with some degenerative endplate Schmorl’s nodes. At L2/3 there was a slight anterior disc bulge. At L3/4 through to L5/S1, the discs appeared normal. A CT scan little on same day of the right knee showed a contoured deformity along the posterolateral tibial plateau on the right side, likely reflecting a site of a mildly depressed fracture.
The claimant had a CT of the cervical spine on 20 April 2021. This showed at C2/C3 no disc bulge. At C3/C4 there was a minor broad-based disc bulge. At C4/C5 there was no disc bulge and also at C5/C6 and C6/C7, no disc bulge was seen.
The same scan showed minor broad-based disc bulges at T8/T9, T9/T10, T10/T11 and T12/L1. No fractures were seen.
An MRI of the lumbar spine on 31 August 2016 at the T12/L1 level showed left posterolateral bulging of the disc annulus without neural compromise. At the L1/2 level, there was posterior bulging of the disc annulus in the midline with flattening of the theca. There was no discrete nerve root compromise seen.
On 2 August 2016, a CT lumbar spine following a noted history of low back pain radiating to the left leg and possible L4/5 disc prolapse reported that the L2/3, L3/4 and 5/S1 discs were defined normally and with normal facet joints.
A CT scan lumbar spine of 10 February 2016, showed a focal posterior protrusion of the L1/2 disc. The remaining discs are said to define normally.
The radiological investigation notes were obtained from the clinical records of Dr Hanna.
The Medical Assessor concluded that CT scanning of the brain and cervical spine showed no acute injury. He said that subsequent imaging of his neck, thoracic spine and lumbar spine did show degenerative change but no frank disc rupture or bony injury and no nerve root compression. The Medical Assessor said that there was some suspicion of a posterolateral right tibial plateau fracture on subsequent CT scanning. A bone scan was performed which was not definitive.
The Medical Assessor said that there was no convincing evidence of a right lateral plateau fracture. He said that it would be usual for such a fracture to be quite prominent at the time of presentation. Also, the area of tenderness being at the upper pole of the right patella that the claimant described was not in keeping with such an injury. The Medical Assessor said that there was therefore no convincing evidence of a posterolateral right tibial plateau fracture.
The Medical Assessor said he considered the injuries described to be soft tissue. Although there was an S1 radicular complaint, there was no corresponding disc rupture or nerve root compression on the right side to account for this non-verifiable complaint.
He assessed that the injuries to the cervical spine, lumbar spine, thoracic spine and right knee, noting the definition in s 1.6 (2) of the Act were soft tissue injuries as there was no evidence of partial or complete rupture of tendons, ligaments, menisci or cartilage or evidence of radiculopathy.
The accident occurred on 11 March 2021. Prior to this, the clinical notes of Dr Hanna showed that the claimant consulted his general practitioner (GP) on 17 July 2020 complaining of back pain and bilateral hip pain. On examination bilateral hip was tender and movement was restricted. It was then recorded that the claimant had a lumbar disc bulge at T12/L1 L1/L2.
An entry of 3 September 2020 referred to back pain, bilateral hip pain and bilateral knee pain. The same record was made on 24 September 2020 with a note of a lumbar disc bulge at L1/L2 and knee pain.
Further treatment was sought on 24 November 2020. At that time, there was a complaint of bilateral knee pain and a diagnosis of bilateral knee osteoarthritis.
A consultation on 23 March 2021, 12 days after the accident, recorded complaints of neck pain heading to both shoulders and bilateral shoulder pain. There was a diagnosis of trauma to the neck.
On 19 April 2021, the claimant complained of neck pain, bilateral shoulder pain, right knee pain and thoracic spine pain. It was also recorded that the claimant had an anxiety disorder.
On 23 April 2021 the claimant complained of neck pain bilateral shoulder pain and right knee pain.
On 23 March 2021, there was a complaint of neck pain radiating to the shoulders and bilateral shoulder pain. There was a diagnosis of trauma to the neck.
On 19 April 2021 the claimant again complained of neck pain, bilateral shoulder pain, right knee pain and thoracic spine pain.
On 26 April 2021, the same areas of pain were complained of.
A musculoskeletal examination took place on 18 May 2021 with complaints of neck pain, back pain and right knee pain. The affected joints showed symptoms of tender bilateral shoulders and a tender cervical spine with no deformity, but movement was restricted. Also affected was the bilateral hip and lumbar spine which was tender. The claimant was observed to have a tender thoracic spine. The diagnosis was cervical disc herniation at C5/6 and C6/7, a lumbar disc bulge at T12/L1 and at L1/L2 and L2/3. There was also a thoracic spine disc bulge of T9/10 and T12/L1.
On 15 June 2021 the claimant complained of neck pain, back pain, and right knee pain. He had restricted movement of the bilateral shoulders and cervical spine. He also had restriction of the bilateral hip and lumbar spine and was tender over the thoracic spine and right knee.
On 13 July 2021 the claimant, on examination, had restricted movement of his bilateral hip and lumbar spine and tenderness and limited movements of the mid and upper thoracic spine. The reason for the visit was noted as a lumbar disc bulge at T12/L1 and a1/L2 as well as a thoracic spine disc bulge at T9/10 and T12/L1. The
On 27 September 2021 the claimant complained of neck pain, back pain, bilateral shoulder pain and bilateral hip pain. This was for a telehealth consultation. He was also noted to have a cervical disc herniation at C3/C4 and C7/T1. Reference was made to a disc bulge at T12/L1/L2.
The claimant came under the care of Dr Giblin who provided a report of 3 May 2021 to
Dr Hanna. He arranged to the claimant to have a CT scan of his cervical and thoracic spine and this revealed no significant disc lesion causing radiculopathy.
A further report from Dr Giblin of 19 May 2021 discussed an MRI scan of the cervical spine showing minor disc bulges at C5/6 and C6/7. An MRI scan of the thoracic spine showed some disc protrusions to the left at T9/10 and more significantly at T12/L1 but none of these caused any canal stenosis, recess or foraminal stenosis. It was also reported that at L1/2 there was a similar lesion to the T12/L1 disc protrusion.
Neither party relies on any medico-legal evidence. However, the Panel notes that the insurer obtained a report of Dr Bruce dated 29 July 2022 which was not contained in its bundle of documents but was part of the insurer’s initial Reply to the application. The claimant informed Dr Bruce that he had made a full recovery from lumbar disc pathology when aged 20. That would not appear correct, on the basis of clinical notes shortly prior to the accident, and treatment, noted above.
With respect to determination of the claimant’s injuries and whether he has suffered a threshold injury within the terms of the Act, the Medical Assessors have prepared a report on the papers. This is attached and is adopted by the Panel.
“Medical findings of the Panel
Pre-Accident Medical History and Relevant Personal Details
Jack Abdo is a 25-year-old man.
Past Health
He states that he had minor right knee and back pain previously but was pain-free at the time of his motor vehicle accident. He has had no previous surgery or medical illness. He has had no previous motor vehicle or Workers’ Compensation injuries and no subsequent motor vehicle accidents. He is single. He has no children. He lives with his family in a house with both parents, brother and sister.
He said his past medical history was otherwise good.
There is no known history of allergy.
Social History
Mr Abdo was born in Iraq and immigrated to Australia in 2013. He completed a course in English as a second language and completed Year 10 of high school. He completed three years of bricklaying apprenticeship. He then commenced a building course on a part-time basis over two years at Granville TAFE. He awaits a builder’s certificate.
He began working with Saba Construction as a leading hand in a full-time capacity where he worked at the time of his injury.
At the time of his motor vehicle accident, he was working for Saba Construction as a leading hand in a full-time capacity. He had done this for some years. He was off work for two to three weeks. He returned to normal work and normal duties. When he was assessed by Dr Hanna however, he was put on light duties and would take time off from time to time. He subsequently commenced work with Zuela Proprietary Limited, which is also a construction company, and his role was more supervisory.
He smokes 40 cigarettes per day and does not drink alcohol.
History of Symptoms and Treatment Following the Motor Accident
He had cuts and abrasions on his left hand that were cleaned. Imaging was performed in the hospital. His neck was placed in a collar. He was assessed and observed overnight and discharged home.
The following few days he rested and was able to do some further work on the house.
After one month however because of pain and dizziness he attended his local medical officer Dr Naeem Hanna of Blacktown. Imaging was performed and he was told that he had “issues with his neck and back.”
He was referred to Dr Matthew Giblin (Orthopaedic Surgeon) approximately one month after his consult. Surgery was not advised. He was referred to physiotherapy. He attended physiotherapy at Woodside Park and still attends once per week.
He was also referred to Eddie So (psychologist) for his mental health and support. He continues to see the psychologist.
Details of Any Relevant Injuries or Conditions Sustained Since the Motor Accident
Mr Abdo denied any history of significant accidents, injuries or other relevant conditions sustained since the subject MVA.
Current Symptoms
His current complaints are as follows:
·   Neck pain, 7/10 (probably in visual analogue scale, VAS). It is at the back of his neck and radiates to the top of both shoulders. It is present all the time but is worse by activity and relieved by medication and rest.
·   Lower Thoracic pain, 6/10 in VAS. It is present all the time and would score. It is worse with activity. There was no radiation. It is relieved by rest and medication.
·   Lower lumbar pain, 9/10 in VAS. It is present all the time and getting worse by bending, stooping, lifting and similar activities. Pain will radiate down to the back and side of his left leg to the bottom of his foot. It is relieved by rest and medication.
·   Right Knee pain, 6/10 in VAS. He said he had mild discomfort before the accident in his right knee, as a result of his fall in the gutter. Pain is not as bad as his neck, initially it did settle but persisted. He now has episodes of pain when running, swimming or carrying weights in excess of 15 kg. His knee does not lock, swell or give way.
·   Sleep is not good, mainly due to back pain and late sleeping.
He can walk for 20 minutes, stand for two hours, and sit for 30 minutes. He can run and jog for only two minutes. He can walk up hills and stairs.
He can drive a motor vehicle for approximately one to two hours.
He can do housework with discomfort. He can go shopping. He can mow lawn for 10 minutes and will need to rest. He can cook. He can socialise but this has been reduced. He can play soccer but will tire. He can perform all activities of daily living (ADL).
Current and Proposed Treatment
He takes the following medication:
·   Naprosyn slow release 75 mg one at night.
·   Mirtanza 15 mg at night.
·   Voltaren two every few days.
·   Nurofen two every few days.
·   Panadol two to three every.
He continues physiotherapy. There is no other planned treatment

Findings on Clinical Examination– according to Assessor Truskett

Clinical Examination
Mr Abdo dressed and undressed unassisted. He climbed on and off the examination couch unassisted. He was 170 cm tall and weighed 84 kg. He was well muscled. He smokes 40 cigarettes per day formerly smoking nine per day before the accident and does not drink alcohol.
Anterior and posterior cruciate ligaments were intact. The medial and lateral collateral ligaments were intact. McMurray’s test was negative.
On examining his back there was no kyphosis or scoliosis. There was no loss of lumbar lordosis. There was no paravertebral muscle guarding. Power and tone were normal.
Straight leg raising was possible to 90 degrees bilaterally. There was some reduced sensation over the lateral aspect centred on his right knee joint with approximately 10 cm diameter, scoring 8/10 compared to 10/10 on the other side. This was non-radicular in nature. Knee jerk, medial hamstring jerk and ankle jerks were present and equal.
There was reduced range of back movement but no dysmetria. Back flexion and extension were two-thirds normal. Lateral flexion to left and right was normal. Rotation left and right was normal. He could walk on his toes and his heels. He could manage a two-third squat with support.

CERVICAL SPINE (Cervicothoracic)

On examining his neck there was no muscle guarding. There was a full range of neck movement with normal rhythm. Neck flexion and extension was normal. Lateral flexion left and right was normal. Rotation left and right was normal.
THORACIC and LUMBAR SPINE
There was reduced range of back movement but no dysmetria. Back flexion and extension was two-thirds normal. Lateral flexion to left and right was normal. Therefore there was no asymmetry of lumbar spine movements.
Rotation left and right was normal. Therefore there was no asymmetry of thoracic spine movements.
The assessor had noted that Mr Abdo reported constant lower thoracic region back pain, but without radiation.Straight leg raising was possible to 90 degrees bilaterally.
There was reduced range of back movement but no dysmetria. Back flexion and extension was two-thirds normal. Lateral flexion to left and right was normal. Rotation left and right was normal.

UPPER EXTREMITY

There was no wasting of the muscles in the upper limbs. Both arms measured 34 cm in circumference 10 cm above the olecranon. Both forearms measured 30 cm at their widest point. Power, tone and sensation were normal. Biceps, triceps and supinator jerks were present and equal.
There was NO upper limb radiculopathy.

LOWER EXTREMITY

There was some reduced sensation over the lateral aspect centred on his right knee joint with approximately 10 cm diameter. This was non-radicular in nature. Knee jerk, medial hamstring jerk and ankle jerks were present and equal.
Both thighs measured 48 cm in circumference 10 cm above the patella. Both calves measured 40 cm at their widest point.
There was NO lower limb radiculopathy.
On examining his knees there was no wasting of the muscles of the lower limbs. There was slight tenderness of the kneecap but no crepitus. There was no effusion. Anterior and posterior cruciate ligaments were intact. The medial and lateral collateral ligaments were intact. McMurray’s test was negative. There was a full range of knee movement.

Knee

Flexion

Extension

Right /°

130

0

Left /°

130

0

Consistency of Presentation
Mr Abdo had been consistent throughout presentation. There was no evidence of exaggeration or diminution of symptoms or signs. He was, however, pain focused.

5. Review of Documentation

Relevant Imaging Studies and Other Investigations
The claimant did not bring any X-ray films or reports to the assessment of Assessor Truskett.
The Panel Members have reviewed the reports of the following investigations enclosed in the supporting documentation:
·   CT Brain and Cervical spine of ? 11/3/2021, taken at Liverpool Hospital, reported by Dr Andrew Low – which showed no acute intracranial pathology. CT cervical spine showed no prevertebral soft tissue swelling and no fracture seen.
·   MRI full spine of 13/5/2021, taken at Superscan, reported by Dr Pascal Bou-Haidar – which showed no evidence of neural impingement throughout the spine. Normal appearance of the spinal. There were minimal disc bulges in the lower cervical spine. There were shallow broad-based left posterolateral disc protrusions at T9/10 and T12/L1 without neural contact. There was degenerative spondylosis with Schmorl’s nodes and disc bulge at L1/2 and a slight disc bulge at L2/3.
·   Bone scan of 13 May 2021 taken at Superscan, reported by Dr Vincent Caristo – which showed no evidence of a fracture in the vertebral column. The findings surrounding the right knee might reflect a site of bone bruising/fracture and further imaging was recommended.

·   CT skeletal of 13 May 2021 taken at Superscan reported by Dr Vincent Caristo- which showed no significant abnormalities in the skull, face, thoracic spine, clavicles, ribs, lumbar spine, hip joints, and femora. In the right knee there was a contour deformity along the posterolateral tibial plateau on the right side, likely reflecting a site of mildly depressed fracture. Further assessment with diagnostic CT of the right knee as well as MRI was advised. The remainder of the right tibia and fibula, and the left knee, tibia and fibula, were normal.
·   CT cervical spine and thoracic spine of 20 April 2021 taken at Superscan, reported by Dr Joseph Sanki – which showed. There is minor broad-based bulging at C3/4 with minor loss of disc height at C7/T1 with endplate spurs.
CT thoracic spine showed minor disc bulges in the lower third of the thoracic spine but no fractures.
[The Panel noted that no annulus tear or disc prolapse or nerve root compression of cervical spine, thoracic spine or lumbar spine was reported. Disc bulging or even ‘disc protrusion’ is not a prolapse.]
The following investigation was done prior to the subject MVA.
·   Ultrasound right neck of 19/8/2019, taken at Clearview medical imaging, reported by Dr David Johnston – which showed mildly irregular hypechoic area with surrounding inflammation. The appearance suggested a sebaceous cyst. Prominent lymph notes were found in posterior triangle bilaterally, and the radiologist suggested a short interval progress study.
·   X-ray both knees and CT thoracic and lumbar spine of 5/9/2020, taken at Superscan, reported by Dr Vincent Caristo- which showed only subtle cortical thickening at the posterior cortex of the proximal right tibia but no other significant abnormality in the knees. CT thoracic spine and lumbar spine showed a partially calcified disc bulge at L1/2 indenting the anterior thecal sac although the nerve roots appeared to exit normally.
·   MRI right knee of 22/10/2020, taken at Superscan, reported by Dr Pascal Bou-Haidar – which showed slight degenerative change in the posterior horn of medial meniscus, minimal prepatellar bursitis and small Baker’s cyst. Otherwise no significant abnormalities were found.
·   MRI left knee of 23/10/2020, taken at Superscan, reported by Dr Pascal Bou-Haidar – which showed no significant abnormalities, apart from a small Baker’s cyst without rupture.
·
CT lumbar spine of 2/8/2016, taken at Fairfield Imaging Centre, reported by

Dr David Ho – which showed mild posterior narrowing of the L4/5 disc, posterior buging of the disc present.
·   MRI lumbar spine of 31 August 2016, taken at Rayscan Imaging Liverpool, reported by Dr Adrian Cole – which showed left posterolateral bulging of the disc annulus at T12-L1 without neural compromise. There was posterior bulging of the disc annulus at L1/2 with no discrete nerve root component.
Summary of Relevant Documentation Provided for the Initial Assessment
·   In an ambulance report, it was stated the accident occurred on the 11 March 2021, at Bonnyrigg Heights and Mr. Abdo was transferred to Liverpool Hospital. It was stated, ‘…pt states was attempting to stop someone from driving his car when they have accelerated and knocked pt over at low speed. Pt states nil loc, was not run over and was ambulant of scene after incident. Police on scene with pt….’. GCS score was 15 on 2 occasions.
·   In a police report dated 15/7/2021, it was stated the incident occurred on 11/3/2021. It was stated that, ‘…the vic was in his second house that he was renovating. The vic heard speaking outside and then his car starting. The vic ran outside and the VOI had reversed into the corner of his gate. The VOI proceeded to reverse out of the driveway and into the street. The vic chased the VOI into the street. The VOI drove forward trying to flee and in doing so has struck the VIC and knocked him to the ground. The vehicle then exited the street… Police attended the address, collected a statement from the vic and ambulance officers assessed the vic, stating that his injuries were a minor cut to the hand and bruising to the the leg….’.
·   In an ED Discharge Referral of Liverpool Hospital (LVH) dated 11/3/2021, it was stated that Mr Abdo was presented to the ED on 11/3/2021. It was stated, ‘…24 yo Jack presented to ED after being knocked down from a Ute. Allegedly noted that his Ute was being stolen… Ute was reversed to the road and he tried to go around the front to get to the door. .. As he was going around, the car accelerated and knocked him on the ground. .. Head apparently struck Ute and then fell backwards on to the road…no LOC… neck, lower back and head pain since then… no haematuria… no significant chest or abdominal pain…
‘Background: Long term back pain. Not on any regular medications, not on any blood thinners. No previous surgery…’. Physical examination, including secondary survey, was basically normal., apart from dome tenderness over right lower lumbar/gluteal region, with no bony tenderness. There were no open wounds, bruising or swelling over extremities/joints, no bony or joint tenderness. There was a minor superficial laceration of left thumb no gaping, and no suturing was required.
The impression was ‘minor MVA but needs imaging to exclude significant head and neck injury’.
·   In a ‘Application for personal injury benefit’ (APIB) dated 18/5/2021, the claimant stated that, ‘My sister’s motor vehicle… was being driven by a thief who attended our property to steal the motor vehicle. Whilst chasing the thief who was in the motor vehicle, I sustained injuries when the thief attempted to run me over with the motor vehicle…’. The injuries were injury to the neck, back, both knees , the shoulders and psychological injuries.
·   In a ‘Patient Health Summary, printed on 14 October 2021’, apparently the clinical notes of Eastbrooke Blacktown GP Super Clinic, the earliest entry was dated 9/2/2016, when Dr Naeem Hanna stated, ‘….bilateral hip tender, No deformity, movement restricted… bilateral wrist tender, no deformity, movement restricted… lumbar back pain…’.
Then in next entry dated 1/3/2016, Dr Hanna stated, ‘… Back pain, bilateral hip pain… diagnosis Lumbar disc bulge L1/L2…’.
In an entry dated 29/9/2016, Dr Hanna stated, ‘… Back pain, Bilateral hip pain…’
In an entry dated 2/7/2018, Dr Hanna stated, ‘… Back pain, bilateral hip pain… skin lesions Lt knee and Rt sole…’,
In an entry dated 17/7/2020, Dr Hanna stated, ‘… Back pain, Bilateral hip pain…no deformity. Movement restricted’.
In an entry dated 24/9/2020, Dr Hanna stated, ‘… Back pain, Bilateral hip pain, right knee pain…no deformity. Movement restricted…’. Both hips and right knee were tender with restricted movement, but no deformity.
In an entry dated 24/11/2020, Dr Hanna stated, ‘… Bilateral hip pain…bilateral tender… no deformity. Movement restricted Bilateral knees osteoarthritis…’.
In an entry dated 23/3/2021, Dr Hanna stated, ‘…Pt has being physically assaulted and his car was confiscated. Hit in face and neck and had laceration to finger… Neck pain, radiating to shoulders. Bilateral shoulder pain… Bilateral shoulder and neck tender… no deformity. Movement restricted …’.
The claimant consulted Dr Hanna regularly, complaining pain in neck, shoulders, right knee.
He was refereed to Dr Eddie So, a psychiatrist.
The last entry in this printout was dated 11/10/2021, complaining of ‘…neck pain, Back pain, Bilateral shoulder pain, Bilateral hip pain, … low self esteem, depressed mood, anxious, no irritability…’
·   In a report dated 3 May 2021, Dr Matthew Giblin, an orthopaedic surgeon stated he saw Mr Abdo qt the request of his GP. He found that there was no significant radiculopathy, and peripheral neurological signs. For cervical and lumbar spine.
In a report dated 19 May 2021, Dr Giblin said he reviewed the claimant on that day. The MRI showed minor disc bulges at C5/6 and C6/7, and some disc protrusion to the left at T9/10, T12/L1, and L1/2, but none of them caused any canal stenosis, recess or foraminal stenosis. He recommended physiotherapy and Yoga.
·   The Panel has reviewed the multiple certificates of capacity (COC).
·   The Panel has reviewed all the supporting documentations.
Summary of Other Relevant Documentation
·   In a PIC certificate dated 25/2/2022, Medical Assessor Richard Haber stated that he assessed the claimant on 11/2/2022. He assessed minor injury for the soft tissue injuries to the cervical spine, lumbar spine, thoracic spine and right knee.
·   In a report dated 29/7/2022, Dr Greg Bruce, an orthopaedic surgeon stated that he examined the claimant on 28 July 2022 at the request of the insurer. He opined that the subject MVA is the sole cause of the complaints of the cervical spine, and the accident aggravated a previous lumbar spine problems. He assessed 5% WPI each for the cervical spine, and lumbar spine. He did not assess the knee problems. Dr Bruce said that it was unlikely that the claimant would make a full recovery in view of the changes in pathology in his T12/L1 and Ll/2 intervertebral discs. His lumbar pain is more likely to persist than the cervical pain.
This report was not contained within the insurers bundle of documents and forms part of the Reply documentation in the original assessment.
·   In a report dated 26 September 2022, Dr Abhishek Nagesh, a psychiatrist, stated that he assessed the claimant on 14 September 2022 at the request of insurer. He diagnosed Major depressive disorder. In a report of the same date, he assessed 6% WPI for the psychological impairment.

6. Conclusions

Diagnosis and Causation

·   Cervical spine injury
There is no evidence cervical radiculopathy, using the criteria of radiculopathy listed in paragraph 6.138, Motor Accident Guidelines, version 9.1: there is no loss or asymmetry of reflexes, no positive nerve root tension signs, no muscle atrophy, no muscle weakness or reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
MRI, CT and bone scans did not show minor degenerative changes but no fracture or significant disc injury or annulus tear.
Considering the history and complaint, it is possible there was soft tissue injury to cervical spine. However clinically there is no evidence of nerve impingement,
Therefore, the Panel assessed the cervical spine injury is threshold.
·   Thoracic spine injury
There is no evidence of lumbar radiculopathy, using the criteria of radiculopathy listed in paragraph 6.138, Motor Accident Guidelines, version 9.1: there is no loss or asymmetry of reflexes, no positive nerve root tension signs, no muscle atrophy, no muscle weakness or reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
MRI, CT and bone scans did not show minor degenerative changes but no fracture or significant disc injury or annulus tear.
Considering the history and complaint, it is possible there was soft tissue injury to lumbar spine. However clinically there is no evidence of nerve impingement,
Therefore, the Panel assessed the thoracic spine injury is threshold.
·   Lumbar spine injury
There is no evidence of lumbar radiculopathy, using the criteria of radiculopathy listed in paragraph 6.138, Motor Accident Guidelines, version 9.1: there is no loss or asymmetry of reflexes, no positive nerve root tension signs, no muscle atrophy, no muscle weakness or reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
MRI, CT and bone scans did not show minor degenerative changes but no fracture or significant disc injury or annulus tear.
Considering the history and complaint, it is possible there was soft tissue injury to lumbar spine. However clinically there is no evidence of nerve impingement,
The Panel noted that disc bulging was present in the MRI scan even prior to the subject MVA.
Therefore, the Panel assessed the lumbar spine injury is threshold.
·   Right knee injury
There was no evidence of fracture of right knee. Any acute fracture of the knee or tibia would be very painful and presented immediately after the accident. No knee pain is reported in the Ambulance, or ED, or later in GP notes. Although the bone scan reported increased uptake at tibia, it was not confirmed by any MRI scan or diagnostic CT scan of right knee. Therefore, there is no clinical evidence of a posterolateral right tibial plateau fracture.
The Panel noted that there was pre-existing right knee problem.
There was no clinical or radiological evidence of cruciate or collateral ligaments or menisci injuries, or tendons injuries. However, it is possible that there was some soft tissue injury to the right knee, considering the circumstances of the accident.
Therefore, the Panel assessed the right knee injury is a threshold injury.
Conclusion
Summary of Injuries Listed by the Parties and Caused by the Accident
The following injuries WERE caused by the motor accident:
·   Cervical spine – soft tissue injury
·   Thoracic spine – soft tissue injury
·   lumbar spine – soft tissue injury
·   right knee – soft tissue injury
The following injuries are threshold injuries:
·   Cervical spine – soft tissue injury
·   Thoracic spine – soft tissue injury
·   lumbar spine – soft tissue injury
·   right knee – soft tissue injury
There is no evidence on the papers submitted of any injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.
Summary of Injuries Listed by the Parties and Not Caused by the Accident
The following injuries were not caused by the motor accident:
·   Cervical spine - Disc Prolapse on C5/6 and C6/7 levels
·   Lumbar Spine - Disc Prolapse on L2/3 level
·   Right Knee fracture
·   Thoracic spine - Disc Prolapse on T9/T10 and T12/L1 levels.
The Panel considered the circumstances of the subject accident and the subsequent history and reviewed the available imaging reports. The imaging study findings with respect to cervical, thoracic and lumbar spines, were, in the Panel’s clinical opinion consistent with a degenerative process rather than any subject accident trauma.
Regarding radiculopathy claimed to have been suffered and identified by the claimant, reference was made in the claimant’s submissions to clause 5.9 of the Guidelines and two or more clinical signs for radiculopathy.
The claimant says that during examination he demonstrated the following;
(d)reduced sensation to his right knee joint
(e)reduced range of back movement
(f) tenderness over the right lower lumbar region
The keywords of diagnosing ‘radicular complaints’ are symptoms that ‘follow the distribution of a specific nerve root…’. It is not radiculopathy, because there are no objective clinical findings as objective demonstratable sensory loss or muscle weakness or loss of reflexes, that is, confirmed by the Medical Assessor, not just a complaint.’ Subjective complaint of reduced sensation to knee joint is not a sign, and it does not follow a nerve root distribution. Reduced range of back movement is not a radicular sign. Tenderness over the right lower lumbar region is also not a radicular sign, as it does not follow nerve root distribution, or dermatomal distribution. Radiculopathy symptoms may come and go clinically, but it must be objectively demonstrated. The Panel cannot take the physical findings of a GP or some treating doctor or allied health worker, as they may not have a proper training of assessing radiculopathy in the context of the guidelines. However, the Panel can accept the findings of a Medical Assessor, as he has the experience, training, and understanding of the Guidelines.”

Determination

The Panel affirms the certificate of Medical Assessor Truskett dated 22 February 2022.
The following injuries were caused by the motor accident:
(a)   cervical spine – soft tissue injury;
(b)   thoracic spine – soft tissue injury;
(c)   lumbar spine – soft tissue injury, and
(d)   right knee – soft tissue injury.
The following injuries are threshold injuries:
(a)   cervical spine – soft tissue injury;
(b)   thoracic spine – soft tissue injury;
(c)   lumbar spine – soft tissue injury, and
(d)   right knee – soft tissue injury.

Summary of injuries listed by the parties and not caused by the accident

The following injuries were not caused by the motor accident:
(a)   cervical spine - disc prolapse on C5/6 and C6/7 levels;
(b)   lumbar spine - disc prolapse on L2/3 level;
(c)   right knee fracture, and
(d)   thoracic spine - disc prolapse on T9/T10 and T12/L1 levels.

[2023] NSWPICMP 694

21 December 2023