Al Kalash v AAI Limited t/as GIO

DETERMINATION OF REVIEW PANEL
CITATION:	Al Kalash v AAI Limited t/as GIO [2023] NSWPICMP 249
CLAIMANT:	Mohammad Al Kalash
INSURER:	AAI Limited trading as GIO
REVIEW PANEL
MEMBER:	Alexander Bolton
MEDICAL ASSESSOR:	Shane Moloney
MEDICAL ASSESSOR:	Drew Dixon
DATE OF DECISION:	6 June 2023
CATCHWORDS:	MOTOR ACCIDENTS – Review of certificate and reasons of Medical Assessor Home dated 7 March 2022 about whether the claimant had suffered threshold or non-threshold injuries; areas in dispute being the claimants cervical spine, lumbar spine, thoracic spine, right shoulder and headaches; claimant had radiological evidence of a tear of the supraspinatus tendon; insurer argued that the supraspinatus tendon tear arose on the background of osteoarthritis in the shoulder of a degenerative nature and similar submissions with respect to the posterior annulus tear at the C6/7 level; no history of the claimant complaining of neck pain or seeking medical assistance pre-accident; Panel satisfied that the tear to the right shoulder was not part of the ageing process as submitted by the insurer and no complaint by the claimant about right shoulder pain pre-accident; Held – Panel concluded that injuries to the claimant cervical spine and right shoulder are non-threshold injuries.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. The Panel revokes the decision of Medical Assessor Home going to determination of threshold and non-threshold injuries suffered by the claimant in the accident of 16 May 2020. 2. The Panel finds that the claimant suffered the following injuries in the accident of 16 May 2020; a) cervical spine; b) lumbar spine; c) thoracic spine; d) right shoulder, and e) headaches. 3. The Panel finds the following injuries; a) cervical spine, and b) right shoulder. are non-threshold injuries.

STATEMENT OF REASONS

This is a review of Medical Assessor Home’s (the Medical Assessor) medical assessment certificate, dated 7 March 2022. The application for review is made by the claimant.
BACKGROUND

There was a dispute between the claimant and the insurer about:
•       threshold injury (threshold injury);
•       treatment causation and reasonable and necessary, and
•       treatment improving recovery.

Threshold injury dispute to be assessed

The following injuries were referred by the claimant to the Personal Injury Commission for assessment:
1.    cervical spine;
2.    lumbar spine;
3.    thoracic spine;
4.    right shoulder, and
5.    headaches.
The Medical Assessor found the following injuries caused by the motor accident:
1.    cervical spine;
2.    lumbar spine;
3.    thoracic spine;
4.    right shoulder, and
5.    headaches

were a THRESHOLD INJURY for the purposes of the Act.

Concerning the issue of treatment and whether a consultation with Dr Hassan, neurologist, and nerve conduction studies would improve the recovery of the claimant, the Medical Assessor found that it would. The claimant has not sought a review of that decision and no submissions have been made addressing those issues.
This is a review only of the decision of the Medical Assessor that the injuries suffered by the claimant are threshold injuries. The other disputes before the Medical Assessor are not for determination of this Panel.

The accident

The claimant was injured in an accident on 16 May 2020. The insured car collided with the rear of the claimant’s car. This impact forced the claimant’s car into the car immediately in front of him.

LEGISLATIVE BACKGROUND

Jurisdiction

The claim of Mr Al Kalash is governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act). This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the MAI Act, there are some disentitling provisions and limits to the amount and extent of benefits available. One of which is that, under ss 3.11(1) and 3.28(1) of the MAI Act, statutory benefits cease 26 weeks after the motor accident if the only injuries sustained by the injured person are “threshold” injuries.
It should also be noted that in a common law damages claim, no damages are recoverable if the claimant’s injuries are “threshold” injuries.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matters, including (e) “whether the injury caused by the motor accident is a threshold injury for the purposes of the Act”.

Threshold injury

A threshold injury is defined in s 1.6 of the MAI Act as a “soft tissue injury” and a “threshold 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 clause of s 1.6(2) the injured person’s statutory benefits cease in accordance with ss 3.11 and 3.28.
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 threshold 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 Motor Accident Guidelines (the Guidelines) may provide for the assessment of whether or not an injury is a threshold injury. Clauses 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 threshold injury”.
Clauses 5.10 to 5.12 are not relevant to the matter before the Panel as they deal with psychological or psychiatric injuries.
This is a was dispute about whether the applicant’s injury caused by the accident was a threshold injury for the purposes of the MAI Act. The dispute was referred to the Personal Injury Commission. Medical Assessor Home conducted a medical assessment and determined in a certificate dated 7 March 2022 that the injuries caused by the accident were threshold injuries for the purposes of the MAI Act and the treatment and care in dispute was reasonable and necessary.
The claimant sought a review of the decision of the Medical Assessor and on
17 May 2022 the delegate of the President considered that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect pursuant to s 7.26 of the MAI Act.

Method of assessment

Part 5 of the Guidelines contain the procedure for assessing whether an injury resulting from the motor accident is a “threshold injury” for the purposes of the MAI Act. In respect of the medical assessment of whether an injury is a threshold 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 threshold psychological or psychiatric injury caused by the motor accident.
5.4 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.”

Does the claimant have cervical 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.”

Claimant’s submissions

The claimant submits that the Medical Assessor was incorrect in finding that the injuries to the claimant’s cervical spine and the right shoulder are not causally related to the accident.
The claimant says that there is no evidence that he had a right paraforaminal disc protrusion at C5/6 prior to the accident. The claimant says that this injury, upon it being found that it was caused by the accident, is a non-threshold injury. The claimant submits that a disc protrusion involves physical displacement with connective fibrous tissue resulting in herniation or protrusion. This does not fall within the definition of a threshold injury.
With respect to causation, the claimant says that what must be established is that the defendant’s conduct was responsible for an adverse difference in the claimant’s condition and that the defendant’s negligence was the cause of that difference.
The claimant says that the Medical Assessor did not appear to have available to him photos of the claimant’s car following the accident. The claimant asserts that these photos show severe damage to his car.
The claimant also submits that the Medical Assessor has not applied the correct test in relation to causation. The claimant says that there is a contemporaneous complaint of right shoulder pain and no evidence of a pre-existing shoulder problem or condition. On that basis, the claimant submits that the Medical Assessor has not properly determined causation.
The claimant maintains that his right paraforaminal disc protrusion at C5/6 and the tear in his right shoulder are clearly caused by the accident. The claimant says that this is essentially, one of the “competing arguments or theories in issue”. The claimant says that the failure to deal with this theory and other “theories” referred to, constituted a failure by the Medical Assessor to respond to a substantial, clearly articulated argument relying upon established principles and that this constituted a failure to accord procedural fairness.
The claimant in his initial submissions relied on what is referred to as “Case study no. 48– Review Panel Decision”.
The Panel has read case study no. 48. The Panel regards this case study as a guide/reference only and not the precedent by which it is bound.
The Panel had available to it and has viewed photographs of vehicles, including the claimant’s, apparently taken after the accident and showing panel damage and debris.
The Panel requested clarification from the claimant in relation to paragraph 13 of the claimant’s submissions about theories which the claimant submitted should have been addressed.
In response, the claimant said that the Medical Assessor in his certificate of
7 March 2022, commented in relation to causation of the right shoulder commencing in the second paragraph of page 10 of 13. The claimant submits that essentially, the Medical Assessor stated “I do not find that the mechanism of injury from the accident would be consistent with causing a traumatic bursal tear to the supraspinatus tendon. Therefore, causation of a traumatic tear is not established due to the mechanism of the accident.”
The claimant submits;
a)    that finding is not supported by the objective evidence. It is perverse, unreasonable and not reasonably open on all of the available evidence;
b)    the Medical Assessor failed to provide reasons as to why he formed that view and reached that conclusion;
c)    the Medical Assessor failed to afford the claimant procedural fairness, and
d)    the Medical Assessor did not adequately deal with the claimant’s argument that his injuries were caused by the subject accident.
The claimant submits that a competing argument or competing theory which ought to have been considered in greater detail by the Medical Assessor was that the injury to the claimant’ shoulder, namely, the traumatic bursal tear to the supraspinatus tendon was in fact caused by the accident. In submitting that the Medical Assessor failed to deal with that theory, that is, that the tear was caused by the accident, a significant factor which would lead to the Review Panel accepting that conclusion is that the Medical Assessor does not appear within his report to have referred to the colour photographs which were provided in the initial application regarding the threshold injury dispute.
The photographs demonstrate substantial rear end damage to the motor vehicle. If the claimant as the driver of the vehicle was wearing a seatbelt, it is submitted by the claimant that on the balance of probabilities, the tear injury to the right shoulder, would in all likelihood, have been caused by the subject accident. It is in those circumstances, submitted by the claimant, that there was a failure to respond to the substantially, articulated argument which was relied upon by the claimant that constitutes a failure to accord procedural fairness. At paragraph 14 of the claimant’s submissions in support of this further assessment dated 28 March 2022, the claimant has referred the Review Panel to the decision of Rodger v de Gelder [2015] NSWCA 211.
The claimant requests the Panel to review the photographs which he submits demonstrate not only the severe and substantial damage to the rear end of the vehicle but also the amount of debris and motor vehicle fluids deposited on the road which is said to be clearly indicative of the motor vehicle being propelled forward at force when struck from behind.
The Panel had available to it and has viewed photographs of the vehicles involved in the accident, including the claimant’s car, apparently taken after the accident and showing panel and body damage.

Insurer’s submissions

The insurer submits that there is no indication that the Medical Assessor has failed to consider the mechanism of injury, treatment, history and documentation before him. The insurer says that the Medical Assessor specifically noted that he considered the submissions of both parties and the documentation before him.
The insurer submits that the claimant’s contentions are merely a difference of opinion to that of the qualified Medical Assessor, and, essentially, have no merit. The insurer submits that a difference of opinion does not in any way constitute a material error.
The insurer says that the Medical Assessor provided detailed determinations with respect to causation and reasons. The insurer noted that the Medical Assessor provided a clear path of reasoning between the mechanism of the accident, the nature of the injury, and the claimant’s presentation on assessment. The insurer submitted that the Medical Assessor undertook a comprehensive, thorough assessment and proffered his diagnosis in accordance with this.
With regard to the claimant’s cervical spine, the insurer noted the claimant’s general practitioner (GP) provided a diagnosis of neck pain. The insurer says that the claimant’s physiotherapist reported a diagnosis of Grade 2 whiplash injury. The insurer says that on examination, the claimant reported right sided pain and a reduced range of motion of the neck. The insurer noted that no neurological examinations or tests of the cervical spine were conducted by the claimant’s physiotherapist. The insurer further noted that the claimant underwent a CT scan of the cervical spine in June 2020 which concluded a right sided disc osteophyte complex at the C4/5 and C5/6 levels causing foraminal narrowing and compression on the right exiting C5 and C6 nerve roots.
The insurer noted that the claimant also underwent an MRI scan of the cervical spine in September 2020 which concluded the same pathology shown on the CT scan as well as disco vertebral changes with mild cord compression at C3/4 level, multilevel disc protrusions and a posterior annulus tear at the C6/7 level.
The insurer submits that the radiological imaging uncovered degenerative findings (multi-level disc protrusions) and an annulus tear with no indication of any significant acute or traumatic pathology (swelling/inflammation) as a result of the subject motor vehicle accident.
The insurer submits on the background of degeneration, the findings are incidental and related to the aging process.
The insurer submits that neither the claimant’s GP or physiotherapist reported the presence of two or more signs of genuine radiculopathy pertaining to a dermatomal and myotomal cervical spinal nerve root distribution as per the Guidelines.
Taking into account the clinical findings of the claimant’s GP, physiotherapist and radiological findings, the insurer submits the evidence demonstrates the claimant does not fall outside the definition of a threshold injury for the cervical spine.
The insurer submits there are no verifiable radiculopathy signs arising from the injury to or impingement of specific cervical spinal nerves being assessed or noted. Further, the insurer says that there is no evidence of a fracture and no evidence of a complete or partial rupture of tendons, ligaments or cartilage in the cervical spine as a result of subject motor vehicle accident.
Concerning the claimant’s thoracic spine, the insurer says that the claimant’s GP provided a diagnosis of mid back pain. The insurer says that the claimant’s physiotherapist did not provide a diagnosis of a specific injury of the thoracic spine.
The insurer noted that the claimant underwent an MRI scan of the thoracic spine in November 2020 (subsequent to the internal review) which concluded mild spondylotic changes with no significant nerve compression.

The insurer submits that the radiological imaging uncovered degenerative findings (multi-level disc bulges at T6/7, T7/8, T9/10 and T10/11) with no indication of any significant acute or traumatic pathology as a result of the subject motor vehicle accident, rather, incidental findings related to the aging process.
The insurer submits that neither the claimant’s GP or physiotherapist reported the presence any neurological symptoms or signs of genuine radiculopathy pertaining to a dermatomal and myotomal thoracic spinal nerve root distribution as per the Guidelines. Therefore, the insurer submits that taking into account the clinical findings of the claimant’s GP, physiotherapist and radiological findings, the evidence demonstrates the claimant does not fall outside the definition of a threshold injury for the thoracic spine.
The insurer submits there are no verifiable radiculopathy signs arising from the injury to or impingement of specific thoracic spinal nerves being assessed or noted. Further, the insurer says that there is no evidence of a fracture and no evidence of a complete or partial rupture of tendons, ligaments or cartilage in the thoracic spine as a result of subject motor vehicle accident.
Concerning the claimant’s lumbar spine the insurer noted that the claimant underwent an MRI scan of the lumbar spine in August 2020 which concluded degenerative changes at L1/2, L3/4 and L5/S1. The insurer submits that the radiological imaging uncovered degenerative findings (multi-level disc protrusions at three levels) with no indication of any significant acute or traumatic pathology as a result of the subject motor vehicle accident, rather incidental findings related to the aging process.
The insurer submits that neither claimant’s GP or physiotherapist reported the presence of two or more signs of genuine radiculopathy pertaining to a dermatomal and myotomal lumbar spinal nerve root distribution as per the guidelines.
Therefore, taking into account the clinical findings of the claimant’s GP, physiotherapist and radiological findings, the insurer submits the evidence demonstrates the claimant does not fall outside the definition of a threshold injury for the lumbar spine.
The insurer submits there are no verifiable radiculopathy signs arising from the injury to or impingement of specific lumbar spinal nerves being assessed or noted. Further, there is no evidence of a fracture and no evidence of a complete or partial rupture of tendons, ligaments or cartilage in the lumbar spine as a result of subject motor vehicle accident.
The insurer submits the claimant’s lumbar spine injury therefore falls under the definition of ‘threshold’ per the MAI Act, the Guidelines, and the Regulations.
Concerning the claimant’s right arm, the insurer says that the claimant’s GP provided a diagnosis of a right shoulder injury.
The insurer noted that the claimant underwent a CT scan of the right shoulder in June 2020 which concluded no abnormalities. The insurer also referred to the claimant having a CT scan of the right elbow in August 2020 and an MRI scan of the right elbow in November 2020 which revealed no abnormalities. The insurer noted that the claimant underwent an MRI scan of the right shoulder in November 2020 which concluded osteoarthritis of the acromioclavicular joint with mild hypertrophy and impingement, focal bursal surface tear of the supraspinatus tendon, mild subacromial bursitis and cystic erosions of the humeral head.
With reference to the above, the insurer submits that there is insufficient medical evidence available to link the right shoulder pathology to the injuries sustained in the accident given the claimant’s age, the absence of information relating to a previous motor vehicle accident, the mechanism of injury and evidence pre-existing degenerative right shoulder pathology.
The insurer submits that should the claimant have sustained an acute traumatic right shoulder injury during the subject accident, he would have experienced immediate severe pain and signs of rotator cuff pathology would have been evident immediately following the accident, including distinct weakness in external rotation and abduction of the right arm, marked reduced range of motion and positive ‘empty beer can test’.
The insurer submits the surface tear of the supraspinatus tendon on the background of osteoarthritis in the shoulder is a degenerative incidental finding. Consequently, the insurer says that the right shoulder injury does not fall outside the definition of a threshold injury.
The claimant’s right shoulder injury does not fall outside the definition of a threshold injury.
Regarding the claimant’s chest, the insurer submits that the claimant’s cardiologist, after conducting multiple investigations concluded that the chest symptoms were most likely function in origin and had recommended to lose weight and undertake more exercise.
The insurer submits the claimant’s chest injury falls under the definition of threshold, per the MAI Act, the Guidelines, and the Regulations.

The medical evidence

The Medical Assessor noted that the claimant reported symptoms of frequent neck pain, describing a constant sharp pain at the base of his neck “like a cut.” It was also felt in the midline. The claimant complained that neck motion was more restricted to the right side. There was intermittent right shoulder pain at rest and prominent right shoulder pain with elevation, above the horizontal. The claimant said that he is unable to lie on his right shoulder comfortably at night. He indicated the pain to be felt at the anterolateral aspect of the joint. He stated that early symptoms of the right arm and forearm were paraesthesia extending to the back of the hand. This settled approximately six months before the examination. At the time of examination there were no current sensory symptoms in the upper limbs.
The Medical Assessor provided a review of all imaging;
a)    bone scan dated 4 January 2021 – Mild degenerative disease in the cervical spine from C3/4 to C5/6. The cervical facet joints are not significantly active. There was arthritis or synovitis in the right shoulder. There was mild soft tissue inflammation in the right shoulder. Probable mild degenerative disease in the lumbar spine with a mild stress reaction and the knees and in the tibial tuberosity. No evidence of a fracture;
b)    CT cervical spine dated 1 June 2020 documented degenerative changes between the anterior arch of atlas and odontoid process. At C4/5 mild reduction with disc height loss with a broad based and a right paracentral disc bulge causing right-sided neural foraminal narrowing and possible compression on the exiting right L5 nerve root. At C5/6 level the disc height was mildly reduced. There was a broad based and right paracentral disc osteophyte complex causing right-sided neural foraminal narrowing and compression upon the right exiting C6 nerve root. The rest of the cervical intervertebral disc levels were normal. No disc bulge or disc prolapse was seen. No facet joint arthropathy was seen. Paraspinal muscles were normal;
c)    CT right shoulder dated 1 June 2020 documents no fracture seen. No traumatic abnormality identified;
d)    CT right elbow dated 17 August 2020 documents studies were within normal limits;
e)    MRI lumbosacral spine dated 24 August 2020 documents mild degenerative changes at the intervertebral joint at L1/2 and in the facet joints from L3/4 to L5/S1. The intervertebral discs are within normal limits. There was no spinal canal stenosis or neural foraminal stenosis. No other significant abnormality is demonstrated;
f)     MRI brain dated 16 September 2020 documents a few non-specific deep matter FLAIR (fluid attenuated inversion recovery) hyperintensities. Prominent cisterna magna. There was a developmental variant in the cavum septum;
g)    MRI cervical spine dated 16 September 2020 documents C2/3 normal, C3/4 broad based posterior disc bulge with mild cord flattening. No nerve root impingement. C4/5 facet joint arthropathy bilaterally and broad-based disc bulge with a right para-foraminal disc protrusion and right C5 nerve root impingement. No cord compression. C5/6 low grade disc bulge with a right paraforaminal disc protrusion of right C6 root impingement. No cord compression. At C6/7 posterior annulus tear and low-grade disc bulge without neural impingement. C7-T1, no disc lesion, no cervical ribs, no intrinsic cord signal, no evidence of cord oedema, myelomalacia or syrinx formation;
h)    MRI thoracic spine dated 2 November 2020 documented mild spondylotic changes throughout the thoracic spine with small disc bulges at T5/6, T6/7, T7/8, T8/9, T9/10 and T10/11. There was no significant narrowing of the spinal canal or nerve root compression;
i)     MRI right shoulder dated 20 November 2020 documented osteoarthritis of the acromioclavicular joint with mild hypertrophic impinging the subacromial fat. Supraspinatus tendon shows focal increase signal intensity with disruption of the bursal fibres at its footprint, noting a partial bursal surface tear measure 5 x 4 millimetres. There was subcortical cystic erosions of the postero superior aspect of the humeral head representing a degenerative erosion or the sequelae of previous trauma. Intact infraspinatus and teres threshold tendons without a tear. Intact subscapularis tendon without tear. Intact long head of biceps tendon. Intact glenohumeral articulation and articular surfaces with intact glenoid labrum. Normal appearances of the surrounding muscles/rotator cuff muscles with no evidence of fatty infiltration or focal lesion. No significant joint effusion, and
j)     MRI right elbow dated 20 November 2020 was unremarkable.
The Medical Assessor was satisfied from the available medical evidence that the claimant sustained the following injuries:
a)    Cervical spine:
The claimant sustained a soft tissue injury. There were underlying degenerative changes at C4/5, C5/6 and C6/7. There was a right paraforaminal disc protrusion at C5/6 that could cause C6 root irritation.
The claimant recalled earlier symptoms of intermittent paraesthesia extending to the right forearm. Those symptoms settled six months earlier. The symptoms were consistent with a non-verifiable radicular complaint. There were no clinical signs of radiculopathy based upon the current assessment.
The MRI imaging did not demonstrate a structural traumatic injury, that would meet the criteria for a non-threshold injury pattern.
b)    Lumbar spine:
The claimant sustained an aggravation of underlying degenerative change. There were no clinical symptoms of true radiculopathy. Intermittent paraesthesia at the anterior aspect of the right thigh did not conform to a dermatomal pattern or relate to a specific peripheral nerve injury. The imaging did not demonstrate trauma-related pathology.
c)    Thoracic spine:
There was no evidence that the claimant sustained a material injury to the thoracic spine.
d)    Right shoulder:
The claimant sustained a soft tissue injury to the right shoulder, likely a jarring injury involving the aggravating of underlying degenerative change in the acromioclavicular joint.
The Medical Assessor noted a favourable anaesthetic and temporary response to Corticosteroid injection administered to the acromioclavicular (AC) joint.
The clinical findings were consistent with post-traumatic AC joint arthropathy with underlying degenerative change. Recent imaging demonstrated bursal degenerative change in the supraspinatus tendon. The Medical Assessor did not find that the mechanism of injury from the accident would be consistent with causing a traumatic bursal tear to the supraspinatus tendon. Therefore, the Medical Assessor said that causation of a traumatic tear was not established due to the mechanism of the accident.
The Medical Assessor provided a summary of listed injuries caused by the accident:
a)    cervical spine – soft tissue injury with aggravation of underlying degenerative change. Non-verifiable radicular complaints of the right upper extremity which have resolved;
b)    lumbar spine soft tissue injury, and
c)    right shoulder soft tissue injury – symptomatic AC joint arthropathy.
Summary of injuries found by the Medical Assessor as not caused by the accident:
a) thoracic spine, and
b) headache - referred symptoms from the cervical spine.
Regarding the cervical spine, the Medical Assessor was satisfied the injury did meet the definition of soft tissue injury. He said that there was no evidence of injury to the nerves, or a complete or partial rupture of tendons, ligaments, menisci or cartilage.
The clinical presentation did not meet the criteria for cervical radiculopathy as set out in cls 5.8 to 5.10 of the MAI Regulation .
The Medical Assessor said that radiculopathy is the impairment caused by dysfunction of a spinal nerve root or nerve roots. To conclude that a radiculopathy is present, two or more of the following signs should be found:
a)    loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in the Guidelines);
b)    positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in the Guidelines);
c)    muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in the Guidelines);
d)    muscle weakness that is anatomically localized to an appropriate spinal nerve root distribution, and
e)    reproducible sensory loss that is anatomically localized to an appropriate spinal nerve root distribution.
The Medical Assessor said that none of the criteria were met.
With the lumbar spine there was no evidence of injuries to the nerves, complete or partial rupture of tendons, ligaments, menisci or cartilage.
With the right shoulder there was no evidence of injury to the nerves, complete or partial rupture of tendons, ligaments or cartilage.
There are no medico legal reports relied upon by the parties.

Panel medical examination

The claimant was examined by Medical Assessor Moloney. His report follows:
“Mr Al Kalash attended the medical suites of PIC and was unaccompanied.
History
Pre-accident medical history and relevant personal details
Mr Al Kalash stated that he was married and living with his wife and three children in a townhouse. He states that he had had no previous injuries to those assessed today. He had been a long-term karate instructor. At the time of the accident, his wife was running a childcare centre at home and he was helping her. Prior to this he had been working for three years as a security manager at AMP main office.
History of motor accident and subsequent treatment
Mr Al Kalash was the driver of his car on 16 May 2020 and was stationary at traffic lights when hit from the rear causing his car to hit the car in front. He was wearing a seatbelt at the time and airbags were not deployed. His three-year-old daughter was sitting in the back seat and he was worried about her welfare. He states that his car was towed away and was later written off. The police or ambulance did not attend the accident scene and his wife came and drove him home. He states at that time he had pain in the neck, lower back and right shoulder.
The next day he consulted a GP, Dr Ibrahim at a medical centre. He states that prior to this he did not have a regular GP. He was referred for physiotherapy which was of some benefit. The GP also referred him to a cardiologist due to the onset of chest pain which was investigated, and he was told there were no cardiac problems. He was also referred to Dr Hassan, a neurologist who arranged an EMG of the right arm and also an MRI of the cervical spine and brain. He was told no surgery was needed and to continue physiotherapy. He was also referred to an orthopaedic specialist, Dr Kahil for his right shoulder. A bone scan was organised, and a cortisone injection administered to the right shoulder which was beneficial for six months. In August 2022, he had a second cortisone injection which had no benefit. The orthopaedic surgeon then recommended surgery, but he is not keen to proceed with this.
Current symptoms
At present there is a persistent central neck pain which occasionally radiates to the right arm and fingers. This radiation happened twice in the last six months and lasted for about 30 minutes. He also gets occasional numbness in the right upper eyelid. There is pain in the right shoulder mainly on the top of the shoulder, but the left shoulder and arm are asymptomatic.
There is a central lower back pain which radiates into the right buttock and occasionally numbness in the right anterior thigh. If the back pain occurs, he gets relief by sitting and this happens about once per week. He is able to walk for 30 minutes okay and driving is limited to 30 minutes due to the occurrence of neck and back pain.
At present, he is unemployed as is his wife and they are both on Centrelink benefits. He does very little chores at present and goes shopping with his wife.
There have been no further injuries sustained since the accident.
Treatment
Present medication is Brufen two a day, Lyrica 75 mg twice a day, Endep 10 mg at night, Panadeine Forte two per week, Panadol two per day, Endone one to two per month, and Lexapro for depression. He consults his GP when necessary and has restarted physiotherapy for his right shoulder under Medicare for five sessions. No other manual therapy is being undertaken at present, but he also consulted a psychologist under Medicare.
Clinical examination
Mr Al Kalash walked into the rooms with a normal gait and sat comfortably during the interview. He states he is right-handed. His height was 174 cm in weight 88 kg.
Cervical spine
On testing range of movement, flexion/extension were 70% of expected range, side bending to the left was 70% and to the right 40%, rotation was 70% to the left and 40% to the right. He states that the restriction was due to neck pain. On palpation there was tenderness over the lower cervical spine but no guarding or spasm was noted in the cervical musculature.
On neurological examination of the upper limbs reflexes were equal bilaterally with normal power and no sensory changes were noted. No muscle wasting was apparent with the circumferences of the upper arms 29 cm bilaterally (10 cm above the olecranon process) and in the upper forearms 27 cm bilaterally (5 cm below the olecranon process).
Thoracic spine
On testing range of movement, flexion/extension side bending and rotation were all 80% of normal range with no asymmetry. On palpation there was no guarding or spasm noted in the thoracic musculature and no signs of radiculopathy or non-verifiable radicular complaints. There was some tenderness over the thoracolumbar junction.
Lumbar spine
Mr Al Kalash walked with a normal gait and was able to walk on his heels and toes and squat normally. On testing range of movement, flexion/extension, side bending and rotation were all 70% of expected range with no asymmetry. Straight leg raising lying was 70° bilaterally and 80° when seated with negative sciatic nerve root tension signs. On palpation there was tenderness over the lumbosacral junction and right sacroiliac joint. No guarding or spasm was noted in the lumbar musculature.
On neurological examination of the lower limbs reflexes were equal bilaterally with no sensory changes noted and normal power. No muscle wasting was apparent with the circumference of the lower thighs 46 cm bilaterally (10 cm above the superior patella pole) and at the maximum circumference of the calves 38 cm bilaterally.
Shoulders
On palpation there was tenderness over the right acromioclavicular joint without crepitus and generalised tenderness over the lateral shoulder joint region. No muscle wasting was apparent and impingement tests were negative. Active movement was measured with the goniometer and repeated three times. There was limitation of movement of the right shoulder due to pain in the shoulder region with no referral of pain from the cervical spine.

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	120°/130°	180°
Extension	40°	50°
Adduction	40°	50°
Abduction	130°/120°	180°
Internal Rotation	80°	90°
External Rotation	80°	90°

MRI right shoulder dated 20 November 2020. This reported a partial bursal surface tear measure 5 x 4 mm. This is a non-threshold injury with no previous history of any injury to the right shoulder.”

Causation
The Motor Accident Guidelines

The Guidelines identify the test for causation in cls 6.6 and 6.7.[1]
[1] Causation is defined in the Glossary at page 316 of the American Medical Association Guides 4th edition (AMA 4 Guides).

The authorities

In Ackling v QBE Insurance (Aust) Ltd,[2] Johnson J indicated that the task of a review panel in assessing whether an injury was caused by the relevant accident is "a practical one". His Honour also observed that a review panel will derive practical assistance from the Guidelines when undertaking the task of assessing causation.[3]
[2] [2009] 75 NSWLR 482; [2009] NSWSC 881.
[3] At [87]. Justice Johnson was then referring to the predecessors to clauses 6.5 - 6.7 of the Motor Accident Guidelines, being clauses 1.7 – 1.9 of the Permanent Impairment Guidelines.
In Owen v Motor Accidents Authority (NSW), [4] Campbell J adopted Justice Johnson's approach with a caveat touching upon the CLA:
"Given that the task of the Medical Review Panel in determining the causation question is not solely a medical determination within the expertise of the assessor's constituting the Panel, the position has, with respect, been aptly put by Johnson J in Ackling at p 500 [87] that the Assessors will derive practical assistance from this part of the Permanent Impairment Guidelines. But it is well to emphasise that the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by Civil Liability Act 2002, s 5D. (See s 3B(2)) of the Civil Liability Act (the CLA)."[5]
[4] [2012] 61 MVR 245; [2012] NSWSC 650.
[5] At [27].
As mandated by Justice Campbell in Owen, s 5D of the CLA also needs to be considered when assessing causation.

84.Section 5D of the CLA provides:
"General principles
(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm ('factual causation), and
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ('scope of liability')."

There are two elements to address when assessing causation under s 5D(1):
"factual causation";[6] and
[6] See s 5D(1)(a) of the CLA - this is the statutory restatement of the “but for” test (see Adeels Palace Pty Ltd v Moubarak [2009] 239 CLR 420; [2009] HCA 48 at [45]) i.e. but for the negligent act or omission, would the harm have occurred?
"scope of liability".[7]
[7] See s 5D(1)(b) of the CLA. See Adeels Palace at 42; Wallace v Kam [2013] 250 CLR 375; [2013] HCA 19 at [12].
Assessing "factual causation" and "scope of liability" involves making value judgments.[8]
[8] There is a conflict between s 5D and the Guidelines. Section 5D requires the use of the “but for” test and the Guidelines state that while the “but for” test may be useful in some cases, it “is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”^{^[8]} For the purposes of this Review, the Panel does not consider anything turns on this apparent conflict, given the medical evidence and the claimant’s statement do not give rise to an assessment involving multiple causes.
The Panel has viewed clinical notes of the claimant’s GP after the accident. There is no evidence before the Panel of a pre-existing condition of the claimant for his cervical spine, thoracic spine, lumbar spine and right shoulder.
The Panel accepts that the claimant suffered an injury to his cervical, thoracic and lumbar spine as a result of the accident. It is reasonable to suspect that in a rear end collision there would be some forces in play which would throw a person forward and back to some extent, even if restrained. This initial impact was compounded by a subsequent impact when the claimant’s car was pushed into the car in front, resulting in two impacts in a very short space of time.
The clinical notes of the claimant’s GP record complaints of pain in the claimant’s neck and back after the accident.
With regard to the claimant’s neck injury, the insurer says that the claimant’s physiotherapist reported a diagnosis of Grade 2 whiplash injury. The insurer says that on examination, the claimant reported right sided pain and a reduced range of motion of the neck. The insurer noted that no neurological examinations or tests of the cervical spine were conducted by the claimant’s physiotherapist. The insurer further noted that the claimant underwent a CT scan of the cervical spine in June 2020 which concluded a right sided disc osteophyte complex at the C4/5 and C5/6 levels causing foraminal narrowing and compression on the right exiting C5 and C6 nerve roots.
The insurer noted that the claimant also underwent an MRI scan of the cervical spine in September 2020 which concluded the same pathology shown on the CT scan as well as discovertebral changes with mild cord compression at C3/4 level, multilevel disc protrusions and a posterior annulus tear at the C6/7 level.
The insurer submits that the radiological imaging uncovered degenerative findings (multi-level disc protrusions) and an annulus tear with no indication of any significant acute or traumatic pathology (swelling/inflammation) as a result of the subject motor vehicle accident. This argument is not correct. The scan results neither confirm nor refute whether or not the claimant’s neck disability arises from the accident or not.
As the Panel has stated, there is no history or evidence of the claimant complaining about neck pain or seeking medical assistance for that area, pre-accident. It is only subsequent to the accident that complaints are made. The Panel therefore, on its own clinical assessment and judgment, accepts that the injury is causally related to the accident.
With flexion/extension (whiplash) injuries to the neck, the disc space posteriorly opens up on flexion making it easier for the disc to protrude posteriorly which in the Panel’s opinion is likely to have occurred in the circumstances of this accident. This protrusion is not 'contained' as there is an annular tear associated with it.
There is evidence of annular tear on imaging studies. That post-accident diagnostic imaging confirms non-threshold injury. The annulus is torn due to disc protrusion, arising out of the accident. Annular disruption (with or without protrusion) of tissue means a tear and this is a non-threshold injury.
The Panel accepts that the annular tear shown in the MRI scan of September 2020 is causally related to the accident and is a non-threshold injury
There was no history of a pre-existing injury to the claimant’s right shoulder. An MRI of 20 November 2020, six months post-accident, showed a partial bursal surface tear. An entry in the clinical notes of the claimant’s GP of 31 May 2020 shows ongoing neck pain after the accident and shooting pain in the right shoulder. Thereafter the notes regularly record complaints of neck pain, lower and mid back pain and right shoulder pain. The Panel accepts that the claimant had mid back pain initially which was caused by the accident. This was a soft tissue injury which has resolved. It is the experience of the Panel that it is not uncommon with whiplash type injuries that sometimes there is some pain referred to the upper thoracic spine which may reach the mid back.
The Panel accepts that having viewed the post accident photographs of damage to the cars involved, the impact would appear to have greater than a minor impact. The Panel accepts that with the dynamics of a forceful rear end impact, the claimant could have injured his right shoulder as a result of the restraint of his seat belt.
The medical assessment certificate of 7 March 2022 indicates that the claimant had a significant rear end accident to his Mazda CX 9 with considerable rear end damage. The claimant’s car was pushed into a car in front with mild damage and his vehicle was towed away. The Panel understands that the claimant’s car was subsequently written off for insurance purposes. The circumstances of the accident and photographic evidence about this, are such that the Panel accepts that the claimant had pain in his neck and right shoulder. Medical Assessor Home was asked to assess the cervical, thoracic and lumbar spine, right shoulder and headaches as to whether it was minor or non-minor and also whether the consultation with the neurologist and nerve conduction studies were causally related to the accident and reasonable and necessary.
It is reasonable that the claimant was referred to a neurologist as the claimant had a neck strain injury with radicular complaint with disc lesions shown on an MRI of the cervical spine and complained of numbness in the arm and while the sensory changes have resolved it did give the opportunity for the neurologist to do nerve conduction studies and refer the claimant for MRI of his neck which showed C4/5 and C5/6 disc protrusions. While the radicular complaint appears to have resolved in this claimant, his neck injury is a non-threshold injury as there has been a disruption of the nucleus pulposis of the disc at both levels with protrusion which has burst through the annulus so that this fibro cartilage also was disrupted at these two levels.
In the lumbar and thoracic spine there is no evidence of soft tissue tear or discal protrusions, and these remain threshold injuries.
With the right shoulder there was a probable seat belt injury to the right shoulder with a supraspinatus insertional tear which makes it a non-threshold injury. An MRI of the shoulder showed disruption of the bursal fibres or the supraspinatus tendon at its footprint with a partial bursal surface tear. This is consistent with an insertional tear of the supraspinatus which is a non-threshold injury.
With regards to the headaches there has been no history of a head injury, and while the headaches may be cervico-genic in origin, the imaging, that is, the MRI of the brain dated 16 September 2020, showed no space occupying lesion, nor brain haemorrhage or mid line shift. The MRI did show a right para foraminal disc protrusion and right C5 nerve root impingement together with a C5/6 disc bulge.
The headaches therefore are not associated with disruption of the intracranial tissues, that is, there is no brain lesion, and it is therefore a threshold injury. The headaches are probably due to occipital neuralgia arising from the neck strain injury.
The cervical spine and right shoulder injuries are non-threshold injuries, and the lumbar spine, thoracic spine and headaches are threshold injuries.
The hearing/tinnitus issue is not before the Panel.
The Panel further accepts that the tear noted to the right shoulder which was confirmed in the MRI of 20 November 2020 is causally related to the accident and not part of the aging process as submitted to the Panel by the insurer. There is no evidence before the Panel of any complaint about the claimant’s right shoulder before the accident and an injury of this nature directly attributable to the accident is not unreasonable.
A tear to the claimant’s right shoulder as a result of the accident is a non-threshold injury.
The Panel found no evidence of radiculopathy of the claimants cervical and lumbar spines. None of the following signs were found;
a) loss or asymmetry of reflexes;
b)positive sciatic nerve root tension signs;
c)muscle atrophy and/or decreased limb circumference;
d)muscle weakness that is anatomically localized to an appropriate spinal nerve root distribution, and
e)reproducible sensory loss that is anatomically localized to an appropriate spinal nerve root distribution.

CONCLUSION

The Panel finds that the claimant suffered the following injuries in the accident of
16 May 2020;
a)    cervical spine;
b)    lumbar spine;
c)    thoracic spine;
d)    right shoulder, and
e)    headaches.
111.The Panel finds the following injuries;
a)    cervical spine, and
b)    right shoulder
are non-threshold injuries.

DETERMINATION

The Panel revokes the decision of Medical Assessor Home going to determination of threshold and non-threshold injuries suffered by the claimant in the accident of
16 May 2020.
The Panel finds that the claimant suffered the following injuries in the accident of16 May 2020;
a)    cervical spine;
b)    lumbar spine;
c)    thoracic spine;
d)    right shoulder, and
e)    headaches.
The Panel finds the following injuries;
a) cervical spine, and
b) right shoulder
are non-threshold injuries.

Clause 6.6 provides:
“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:
(a) The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
(b) The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.”
Clause 6.7 provides:
“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.”

[2023] NSWPICMP 249

6 June 2023