Al-Khafaji v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	Al-Khafaji v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMP 519
CLAIMANT:	Alaa Al-Khafaji
INSURER:	Insurance Australia Limited t/as NRMA Insurance
REVIEW Panel
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Geoffrey Stubbs
MEDICAL ASSESSOR:	Drew Dixon
DATE OF DECISION:	19 December 2022
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Injuries Act 2017 (2017 Act); medical dispute about minor injury under section 1.6 of the 2017 Act; review of Assessor Assem’s assessment under section 7.26 of the 2017 Act; claimant alleged injury to cervical spine and lumbar spine in October 2020 accident; claimant added ‘thoracic spine injury’ after original assessment; issue of causation; issue of readiness for assessment in light of cervical foraminotomy surgery not yet undertaken; Held – matter not delayed or deferred due to age of claim, age of accident and likelihood of further assessment after surgery; Panel found no thoracic fractures caused by accident; no cervical or lumbar spine radiculopathy therefore all injuries are minor injuries; Panel expressed the preliminary view that cervical foraminotomy surgery was caused by the accident and would likely take the claimant’s cervical spine injury from minor injury to non-minor injury because surgery involves cutting of skin and excision of bone or tissue.
DETERMINATIONS MADE:	Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel confirms the certificate of Medical Assessor Assem dated 19 November 2022 which certifies that Mr Al Khafaji’s injuries resulting from the motor accident on 12 October 2020 are minor injuries. A statement setting out the Panel’s reasons for the assessment is included with this certificate.

STATEMENT OF REASONS

Introduction

Alaa Al Khafaji was involved in a motor accident on 12 October 2020. At that time, he was close to 35 years of age. He was a front seat passenger in his brother-in-law’s truck when a car came into a roundabout and hit the left front corner of their vehicle.
On 5 November 2020, Mr Al Khafaji made a claim for statutory benefits against GIO, the third-party insurer of the vehicle Mr Al Khafaji says caused his accident. The Panel understands that GIO has admitted Mr Al Khafaji was not wholly or mostly at fault and therefore that its insured was at fault and caused the accident.
A medical dispute arose in connection with the claim[1] and that dispute was referred to the Personal Injury Commission (the Commission).
[1] On 4 February 2021 the insurer wrote to Mr Al Khafaji advising him his benefits would cease because his injuries were “minor” injuries. An internal review was undertaken on 3 March 2021 and the decision affirmed.
On 19 November 2021, Medical Assessor Assem determined that the claimant’s only injuries sustained in the accident were “minor” injuries within the statutory definition. The claimant was disappointed with that decision and lodged an application for review of the assessment. On 14 April 2022 the President’s delegate determined there was reasonable cause to suspect a material error in the Medical Assessor’s determination and on 5 May 2022 the President then convened this Panel.

Legislative framework

Jurisdiction

Mr Al Khafaji’s claim is governed by the provisions of the Motor Accident Injuries Act2017 (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 these restrictions is that, in accordance with ss 3.11(1) and 3.28(1) of the Act, statutory benefits cease 26 weeks after the motor accident if the only injuries sustained by the injured person in the accident are “minor” injuries.
In a common law damages claim, no damages are recoverable if the claimant’s injuries are “minor” injuries.

Minor injury

A minor injury is defined in s 1.6 of the MAI 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 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 minor psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines minor injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
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 minor injury. Relevantly to the matters in issue in Mr Al Khafaji’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[2] 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 …
(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”
[2] Chapter 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”.

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 MAI Act[3]. In respect of the medical assessment of whether an injury is a minor injury or not, the Guidelines relevantly provide:
[3] The current version of the Guidelines I version 8.2 effective 8 April 2022.
“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.
5.4     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 method of assessment in Part 5 does not appear to be limited to the assessment of minor injury disputes by medical assessors and Panel members but would appear to extend to medico-legal or other experts retained by the claimant and the insurer upon which the insurer’s liability notices are based under s 6.19(2).

Dispute resolution

If there is a dispute about whether an injured person’s injuries are minor injuries or not, that matter is declared a medical assessment matter which may be referred to the Commission for determination[4].
[4] Schedule2, cl 2(e) in the MAI Act.
Chapter 7, Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Assem’s, further medical assessments and the review of medical assessments by this Review Panel[5].
[5] Sections 7.20, 7.24 and 7.26 of the MAI Act.

Assessment under review

Medical Assessor Assem examined the claimant on 19 November 2021 and issued his reasons on 29 November 2021. He was referred the following injuries for assessment:
(a) cervical spine, and
(b) lumbar spine.
Medical Assessor Assem takes the following history from the claimant:
(a)    Mr Al Khafaji was a goldsmith in Iraq before migrating to Australia in 2007 and working as a handyman. He has not worked since the accident;
(b)    he had a previous accident in November 2019 where he collided with a vehicle stationary in front of him and he had right shoulder and back pain and his symptoms resolved after an injection of Tramadol. He had no physiotherapy or radiology;
(c)    the impact of the collision was to the left front corner of the vehicle. Medical Assessor Assem says he saw the photos of the damaged vehicle which he describes as “minor” and notes the vehicle was driveable but written off;
(d)    the claimant was not aware of any immediate discomfort and went on to work but did not work as he began developing neck and back stiffness along with pins and needles in his right third, fourth and fifth digits;
(e)    Mr Al Khafaji consulted a doctor in Fairfield who prescribed Panadeine Forte then he saw Dr Yehia who prescribed analgesia and arranged radiology (MRI scans of the cervical spine and lumbar spine dated 6 November 2020), and
(f)    the claimant had physiotherapy and hydrotherapy and was referred for pain management (Dr Manohar) and neurosurgical opinion (Dr Van Gelder).
In terms of current symptoms Mr Al Khafaji:
(a)    was of the view his condition is worsening. He does not experience neck pain but has “stiffness” and difficulty sleeping at night with constant pins and needles involving the right third, fourth and fifth digits with some swelling and redness of the skin;
(b)    has midthoracic and upper lumbar pain but no pain in his lower back, and
(c)    reports sensory loss in the right leg (around the knee, right calf and dorsal aspect of the right foot) and he has hypersensitivity and weakness causing him to limp.
On examination of the neck there was tenderness but no muscle guarding or spasm, symmetrical restriction in flexion and extension and lateral flexion but asymmetrical restriction of motion in rotation. In other words, dysmetria.
In terms of the five signs of cervical radiculopathy:
(a)    loss or asymmetry of reflexes - Mr Al Khafaji’s reflexes were brisk and symmetrical and therefore the Panel notes there was no loss;
(b)    positive sciatic nerve root tension signs, in the upper limb the brachial stretch test is often used. It is not clear from Medical Assessor Assem’s determination which test he used and therefore it is not possible for the Panel to determine whether there was a positive nerve root tension sign in the cervical spine;
(c)    muscle atrophy and/or decreased limb circumference – Mr Al Khafaji’s measurements showed no difference in arm circumference therefore the Panel notes there was no muscle atrophy;
(d)    muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution – Medical Assessor Assem notes there was “global weakness” in the right arm “which did not localise in a specific nerve root distribution” therefore the Panel notes this sign was not present, and
(e)    reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution – Medical Assessor Assem records reduced sensation over the third, fourth and fifth digits and parts of the claimant’s right hand which “did not correspond to any specific dermatomal pattern” therefore this sign of radiculopathy was not present.
Medical Assessor Assem noted a normal range of shoulder motion and pain behaviours (grimacing and vocalisation).
In the lower back, Medical Assessor Assem records tenderness in the midthoracic region but not across the lower back. There does not appear to be dysmetria present.
There were more reports of pain behaviour as the claimant had difficulty getting on and off the examination couch. In respect of the five signs of lumbar radiculopathy:
(a)    loss or asymmetry of reflexes – Mr Al Khafaji’s knee and ankle jerk reflexes were brisk and symmetrical;
(b)    positive sciatic nerve root tension signs – Medical Assessor Assem documents negative neural tension signs;
(c)    muscle atrophy and/or decreased limb circumference – Mr Al Khafaji’s measurements showed no difference in thigh or calf circumference therefore no muscle atrophy;
(d)    muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution – Medical Assessor Assem notes there was normal strength apart from weakness in plantar flexion of the right foot, and
(e)    reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution – Medical Assessor Assem records hypersensitivity at the plantar surface of the right foot and diminished sensation on the dorsal aspect of the right foot, right calf and inner aspect of the right lower leg. The Medical Assessor says, “I had difficulty identifying a specific dermatomal distribution for his sensory complaints”.
Medical Assessor Assem remarked that there were no inconsistencies in the physical presentation.
Medical Assessor Assem reviews the documentation and agrees the claimant does have radicular symptoms but no “neurological deficits” that correspond to a specific nerve root distribution in the upper or lower limbs which might indicate radiculopathy. He reviewed the radiology.
The Medical Assessor’s diagnosis was:
“He has radiological evidence of pre-existing and long-standing degenerative changes in the cervical and lumbar spine that were established prior to the motor vehicle accident. Although there was potential impingement of the exiting nerve roots, his sensory symptoms do not correspond to a specific dermatomal pattern and were inconsistent with the radiological findings involving the cervical spine and lumbar spine”.
Because the claimant did not meet the requirements for radiculopathy, Medical Assessor Assem found the claimant’s accident-related injuries to be minor injuries within the statutory definition.

Other assessments

The claimant alleged a psychiatric injury. The Panel has not been advised of any psychiatric assessment undertaken by the Commission.

SUBMISSIONs

Claimant’s submissions

The claimant’s original submissions to Medical Assessor Assem[6] argued that:
(a)    Mr Al Khafaji had a non-minor lumbar spine injury being a left paracentral disc bulge at L5/S1 impressing upon and causing nerve root irritation;
(b)    Mr Al Khafaji sustained a non-minor cervical spine injury being disc bulges at C4/5, C5/6 and C6/7, impressing and compressing and causing nerve root irritation, and
(c)    Mr Al Khafaji has cervical and lumbar radiculopathy.
[6] Page 30 of the claimant’s bundle.
The claimant’s submissions[7] in support of the application for review argue:
(a)    thoracic fractures - the claimant sustained compression fractures to T7 and 11 reported in the MRI dated 12 June 2021 not captured on the CT scan of 13 October 2020. There were no previous thoracic spine complaints in the records and the claimant has complained to Professor Van Gelder of thoracic spine pain. The claimant says Medical Assessor Assem did not refer to the compression fractures in his decision. The Panel notes, with respect, Medical Assessor Assem was only referred the cervical spine and lumbar spine to assess and not the thoracic spine;
(b)    radiculopathy – the claimant relies on the reports of Professor Van Gelder who has found symptoms consistent with cervical radiculopathy correlated with radiological changes evident on CT and MRI scans;
(c)    the Medical Assessor “had a prejudice” evidenced by his comment that the damage to the vehicles was minor when both vehicles were written off, and
(d)    the claimant quoted from the permanent impairment assessment part of the Guidelines (Part 6) which the Panel notes is not applicable to assessments of minor injury (Part 5).
[7] Page 3 of the claimant’s bundle.
The claimant’s further submissions[8] dated 20 May 2022 says the claimant has significant pathology including fractures to his thoracic spine which were not pre-existing, he has had continued severe pain in his neck and back and is reliant on pain medication to cope with his symptoms. The claimant says he has not been able to work since the accident and should have his statutory benefits restored.
[8] Page 86 of the claimant’s bundle.
The claimant provided submissions[9] dated 2 June 2022 objecting to the insurer’s report from Dr Korber.
[9] Document AD10 in the Commission’s electronic file.

Insurer’s submissions

The insurer’s original submissions to Medical Assessor Assem dated 10 May 2021[10] argue after summarising the medical evidence:
(a)    there were previous complaints of back pain including 23 October 2019 and 27 November 2019;
(b)    there is no evidence of a fracture, injury to a nerve or a complete or partial rupture of tendons, ligaments, menisci or cartilage;
(c)    Mr Al Khafaji does not satisfy the criteria for radiculopathy as set out in cl 5.8 of the Guidelines;
(d)    Dr Gorman found no evidence of nerve injury or structural soft tissue injury, found a whiplash associated disorder and soft tissue injuries only, and
(e)    there are degenerative changes in the claimant’s spine and that disc degeneration occurs from early on in life and that even if the claimant’s disc bulges were accident related they would still fall within the definition of “minor” injury unless there was radiculopathy.
[10] Page 43 of the insurer’s bundle.
The insurer’s submissions in support of its reply to the application for review are dated 22 March 2022[11]. The insurer says:
(a)    the thoracic spine fractures were not referred for assessment and therefore this does not constitute an error;
(b)    the findings of Professor Van Gelder do not constitute radiculopathy within the meaning of the definition and, at the time of assessment by Medical Assessor Assem the claimant did not have radiculopathy;
(c)    Medical Assessor Assem reviewed the photographs and formed his own opinion as to the severity of the damage to the vehicle and the allegation that the Assessor was prejudiced against him is “unfounded and unfair”.
[11] Page 13 of the insurer’s bundle.

The insurer lodged further submissions on 23 May 2022[12] and says:
[12] Page 11 of the insurer’s bundle.
(a)    the claimant did not complain to Dr Manohar of thoracic spine pain;
(b)    in a report of Dr Masterton dated 21 January 2021 there is no mention of thoracic spine pain;
(c)    Dr Gorman only records complaints of neck and lumbar spine pain;
(d)    Professor Van Gelder only has a history of neck and lumbar spine pain;
(e)    the MRI imaging showing the “long standing” thoracic compression fractures was only eight months after the accident;
(f)    the GP notes only record neck and lower back pain;
(g)    the patient questionnaire and pain diagram completed by Dr Manohar with the claimant do not identify thoracic spine pain;
(h)    Dr Manohar had the CT report which noted three “very minor wedge appearance at T10-T12 which are likely long-standing and incidental”, and
(i)    photographs show minor damage to the vehicle.
The insurer says there is no contemporaneous complaint of thoracic spine pain, the radiology suggests the fractures were long standing and the accident was minor therefore the thoracic fractures are an incidental finding and not caused by the accident.
The insurer lodged a further set of submissions dated 21 July 2022[13] in response to the matters raised by the Panel and says:
(a) in response to the Panel’s request for a concession that a thoracic fracture found to be accident related would be a non-minor injury, the insurer did not respond but restated its submissions relating to causation, and
(b) in response to the Panel’s request for a concession that, leaving aside any issue of causation, if the claimant had two of the five signs of radiculopathy at any time recorded by Professor Van Gelder the claimant would fall outside the definition of minor injury, the insurer did not respond and restated its submissions relating to causation.
[13] Page 2 of the insurer’s bundle.

Procedural matters

The Panel met on 9 June 2022 and on 10 June 2022 issued a report to the parties concerning the deliberations of the Panel.
The Panel noted:
(a)    the claimant alleged he has cervical radiculopathy, his neurosurgeon (Dr Van Gelder) has recommended surgery and NRMA had declined to pay for it. The Panel noted there did not appear to be any proceedings in the Commission to determine whether the surgery is reasonable and necessary or related to the accident;
(b)    the insurer had obtained copies of the claimant’s pre-accident records but does not draw attention to any pre-accident neck complaints, and
(c)    the claimant says he has had lumbar spine radiculopathy and the insurer has obtained copies of the claimant’s pre-accident records which suggest the claimant has had lumbar spine symptoms in the past.
The Panel drew the parties’ attention to the decisions of:
(a) David v Allianz Australia Insurance Ltd,[14] and
(b) Lynch v AAI Limited t/as AAMI[15].
[14] 2021 NSWPICMP 227.
[15] 2022 NSWPICMP 6.
The Panel referred to paragraph 10 of David noting that if it is established (in an assessment that complies with cl 5.5) that there are at least two clinical signs of radiculopathy (as set out in cl 5.6) present at any time caused by the accident, the injured person falls outside the definition of “minor injury”.
The Panel requested copies of Dr Van Gelder’s clinical records or, in the absence of such records, a short report from him as to whether the claimant has had any of the five signs of radiculopathy (as set out in cl 5.6) at any time and if so which and when.
In relation to the claimant’s thoracic fractures, the Panel noted the President’s delegate had allowed the report of Dr Korber into evidence and invited the claimant to obtain evidence in response to Dr Korber’s report.
The Panel directed the parties to provide to the Commission the claimant’s 13 October 2020 CT scan of the thoracic spine and the 1 June 2021 MRI scan of the claimant’s thoracic spine.
The Panel met again on 5 September 2022 and issued a further report to the parties.
The Panel noted that no records or reports from Dr Van Gelder had been provided however the Panel was advised that the claimant (then aged 37) had the cervical foraminotomy performed by Dr Van Gelder. The Panel noted that this procedure involves an incision into the skin, a removal of a small portion of bone or soft tissue which may be causing impingement of spinal nerves. The Panel expressed the preliminary view that subject to the issue of causation the surgery took the claimant’s cervical spine outside the definition of “minor injury”. The Panel requested Dr Van Gelder’s operation notes and any follow up reports from him to the GP.
The Panel noted again that the insurer had not taken the Panel to any pre-accident records suggesting any previous complaint of neck pain and that there had been a consistent complaint of neck pain since the accident. The Panel noted Medical Assessor Assem’s diagnosis of the neck injury as an aggravation of pre-existing degenerative changes in the spine. The Panel suggested the test of causation was whether the accident was a material contribution to the claimant’s need for surgery.
The Panel considered the report of Dr John Korber and reviewed the radiology that had been provided and noted the claimant wished to obtain a report in answer to Dr Korber’s report. The Panel expressed the very preliminary view that the alleged thoracic spine fractures may not be accident-related.
The Panel advised the parties it did not think a re-examination was required as the matter could be assessed on the papers particularly in the light of the claimant’s recent surgery.
The Panel invited submissions from the parties on all of the above matters.

Insurer’s submissions in response

The insurer noted[16] the claimant’s surgery had been postponed to 9 November 2022.
[16] Document AD20 in the Commission’s electronic file.
The insurer conceded there were no complaints of neck pain in the documents it had but advised that it was trying to obtain Medicare documents to reveal the claimant’s pre-accident treating practitioners.
The insurer agreed the claimant had complained of symptoms in the neck after the accident.
The insurer stated that the cervical foraminotomy surgery was not reasonable and necessary due to a lack of clinical findings indicating the need for the surgery.
The insurer maintained its view that the claimant’s cervical spine injury was minor.

Claimant’s submissions in response

The claimant confirmed that he had not yet had the surgery but was scheduled to have it on 9 November 2022.
He also said:
(a)    he had no previous neck complaints;
(b)    he has had consistent neck complaints since the accident which has caused extreme pain and a reliance on heavy medication which has resulted in him not being able to work;
(c)    he has sustained severe fractures to his thoracic spine, has had continued severe pain in his thoracic spine and does not accept he has sustained an aggravation of pre-existing degenerative spinal changes;
(d)    he is in the process of obtaining updated clinical notes and would advise the Panel upon receipt, and
(e)    the surgery is reasonable and necessary and “falls outside the definition of minor injury”.

Is the matter ready for assessment?

Upon receipt of the claimant’s last submissions, the Panel caused a message to be sent to the claimant asking for confirmation that the surgery scheduled for 9 November 2022 had taken place. The Panel was advised:
(a)    the surgery did not take place;
(b)    the claimant cannot afford to pay for it himself and is on the waiting list, and
(c)    the claimant has seen Dr Simon McKechnie neurosurgeon for cortisone injections at C6/7 and his records were provided.
The Panel was asked to “delay making your decision until after the claimant’s surgery has been undertaken” and advised that the claimant would be contacted “at regular intervals for an update as to the progress of his scheduled surgery” and that the Panel would be informed.
The Panel caused the message to be relayed to the insurer and requested the insurers attitude to the request for a deferral of the proceedings. The insurer responded objecting to any further adjournment saying, “the surgery has already been delayed several times and there is no set date or estimated timeframe for the proposed surgery to take place”. The insurer requested the Panel resolve the dispute expeditiously.
The claimant responded to that message (without having been invited to do so) advising that the ability to have the surgery expeditiously is beyond his control as he is relying on the public system. The claimant invited the insurer to pay for the surgery.
The Panel has considered the claimant’s request for an adjournment and notes that the guiding principle of the Commission[17] is to facilitate the “just, quick and cost effective resolution” of disputes including medical disputes.
[17] See s 42 of the Personal Injury Commission Act 2020.
The Panel notes that:
(a)    the claimant’s accident occurred in October 2020 over two years ago, the assessment of Medical Assessor Assem occurred over a year ago and the Panel was convened seven months ago;
(b)    Assessor Assem was asked to assess neck and lower back injuries and the Review Panel was asked to consider thoracic spine injuries as well;
(c)    the parties have uploaded additional material not before Assessor Assem (including the report of Dr Korber and the records of Dr McKechnie);
(d)    the parties have advised they are seeking further documentation (including pre-accident medical records and a report to answer Dr Korber), and
(e)    the claimant has been advised to have surgery but the surgery has not occurred, has been delayed several times and has not yet been given a date, the Panel is therefore not sure of when this matter will, in the claimant’s view be ready for assessment.
If the Panel proceeds to finalise its assessment, that is not the end of the matter for the claimant because, section 7.24 of the MAI Act provides for a further medical assessment after an initial medical assessment including after a review of an initial assessment.
Clause 13 of the Motor Accident Regulation provides the grounds for a further assessment being:
(a)    deterioration of the injury, and
(b)    additional relevant information is provided about the injury which is
(c)    capable of having a material affect on the previous outcome.
Because the claimant’s entitlement to statutory benefits can be reinstated with a further assessment, the Panel therefore will not adjourn or defer the proceedings but will proceed with its assessment.
The decision to allow a further assessment is a question for a delegate of the President. The Panel is clearly not a delegate. The occurrence of the surgery is likely to be additional relevant information. To assist the parties and hopefully prevent a further dispute arising, the Panel proposes to provide some preliminary views on the claimant’s surgery.

CONSIDERATION OF THE ISSUES

What does the radiology reveal?

The medical members of the Panel reviewed the MRIs of the cervical spine and lumbar spine dated 9 November 2020 which had been sent to the Commission and made available to them.
There were disc lesions seen at C5/6 with changes to the vertebra and a disc protrusion at C6/7 where the changes were most marked. There was compression at the right C5/6 nerve root along with compression of the nerve roots at C6/7, more marked on the left.
The MRI of the lumbar spine on 6 November 2020 showed there is only a left paracentral disc bulge causing left sided foraminal narrowing abutting the L5 and S1 nerve roots but with no neural compression.
The Panel did not view the original thoracic spine CT scan images from 13 October 2020 or the thoracic spine MRI from 12 June 2021.

Does claimant have thoracic fractures and were they caused by the accident?

The insurer relies on a report from Dr Korber dated 20 May 2022. Dr Korber is a specialist radiologist. Like the Panel, he did not have the 13 October 2020 CT of the thoracolumbar spine but had the report which said, “there are very minor wedge appearances at T10 to T12, which are likely long standing and incidental.”
Dr Korber did however have the MRI scans of the thoracic spine dated 11 June 2021 and considered there were developmental and degenerative changes in the thoracic spine in particular a degenerative disc at T7/8. He did not consider there to be any acute fractures but wished to see the original CT of 13 October 2020. No further report from Dr Korber has been provided.
The medical members of the Panel note that there do not appear to be any references to thoracic spine pain in the notes or the immediate and more contemporaneous records.
The Panel notes that the spine is divided into three regions and that medically it is more accurate to refer to cervical, thoracic and lumbar spine but that lay persons and doctors will often refer to those regions as neck, mid-back and lower back. As the location of the T12 vertebra is directly above the lumbar spine the medical members of the Panel note that in their experience, a complaint of “lower back pain” is often used to refer to the lumbar spine and that part of the spine which includes the lower thoracic vertebrae.
The absence of recorded complaints by Mr Al Khafaji of specific thoracic spine pain therefore, is not, in the Panel’s view determinative of whether the claimant has had pain in the T10 to T12 area which might corelate to the radiological findings. Ordinarily a re-examination by the medical members of the Panel would occur in order to obtain from the claimant a history or demonstration of precisely where the pain was felt. Bearing in mind the age of the dispute before the Panel and the Panel’s findings in relation to the cervical spine surgery, the Panel does not intend to delay the determination of these proceedings by undertaking a re-examination of the claimant’s thoracic spine.
The Panel has reviewed the reports of the thoracic spine scans and is satisfied that the thoracic “wedge appearances” at T10-12 which the radiologist considered the day after the accident were “long standing” are not indicative of thoracic factures caused by an accident.

Does the claimant have cervical radiculopathy caused by the accident?

The Panel has not examined the claimant. The Panel notes that when examined by Medical Assessor Assem the claimant did not demonstrate that he had two of the five signs of radiculopathy.
The Panel notes that medical practitioners (GPs and neurosurgeons alike) will often refer to radiculopathy in a much more general sense than the specific requirements of the legislative scheme for motor accidents matters. For example, general practitioners and specialists alike will diagnose radiculopathy on the basis of radiating pain. Radiating pain is not one of the five signs of radiculopathy according to the Guidelines.
The reports of Dr Manohar commencing 16 December 2020 record complaints of neck pain radiating down the left arm to the fingers (not the right arm). There is no description of an examination that would comply with cl 5.6 and no recording of any of the five signs of radiculopathy as per cl 5.8.
The report of Dr Van Gelder dated 7 April 2021 notes the claimant’s complaints of radicular pain in the right arm associated with numbness and tingling. On examination the claimant had normal strength and intact reflexes but reduced sensation in the right hand. When the examination findings are considered (in accordance with cl 5.6 of the Guidelines) there is only one possible sign of radiculopathy - reduced sensation in the right hand but not two signs. The further reports of Professor Van Gelder do not add to the clinical picture.
The reports of Doctors Gorman and Masterton do not record any findings that would satisfy the Panel that the claimant had, at the time of their examinations two or more signs of radiculopathy.
The Panel is therefore not satisfied that at any time since the accident the claimant has had cervical radiculopathy within the meaning of the Guidelines.

Does the claimant have lumbar radiculopathy caused by the accident?

The Panel has carefully considered all of the reports and records in respect of the claimant’s lumbar spine and is not satisfied that any of the reports from any of the doctors who have examined the claimant indicate that the claimant has had any signs of lumbar radiculopathy at any time.

Preliminary views concerning the proposed surgery

Is the need for cervical surgery caused by the accident?

The Panel does not have before it a treatment dispute about “whether any treatment and care [the surgery] provided … to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24 …” under Schedule 2(2)(a). Mr Al Khafaji will either have to pay for the surgery himself or have the surgery courtesy of the public health system.
The Panel has before it a dispute about minor injury in circumstances where the surgery has been described and identified as a cervical foraminotomy to three levels of his cervical spine.
The Panel notes the decision of AAI Limited t/as AAMI v Phillips[18] where the test of causation of surgical treatment was determined in a matter where the claimant had three motor accidents. The court said at [28]-[29]:
“The requirement in s 58(1)(b) is to determine whether the treatment relates to the injury caused by the accident. If the injury that existed at the time of the Panel’s assessment was not the injury caused by the accident (the mild soft tissue injuries superimposed on the chronic degenerative changes) but, rather, simply the continuation of those pre-existing degenerative changes, then the treatment cannot relate to “the injury caused by the motor accident”.
I accept the plaintiffs’ submission that for any of the three motor accidents to have been causative of the need for the suggested surgery, the accident would have to have made at least a material contribution to the need for surgery[19]. Further, the Panel should have considered whether the proposed surgery would not have arisen but for the occurrence of one or more of the accidents being considered.”
[18] [2018] NSWSC 1710.
[19] Emphasis added.
In other words, the test of causative need for Mr Al Khawaja’s surgery is whether the accident was a material contributing factor to the surgery occurring.
The Panel accepts that Mr Al Khafaji has underlying degenerative changes in his cervical spine and accepts that he has had pain since the accident but there is currently no evidence before the Commission to suggest the claimant had neck pain before the accident. He may have pain behaviours, but it is in the Panel’s clinical and preliminary view based on the material currently before it, that Mr Al Khafaji’s pre-operative state of neck pain is due to the accident. He has received specialist advice and want to have surgery based on that advice.
It is the Panel’s preliminary view that in the absence of any neck symptoms before the accident, a continuous complaint of neck symptoms after the accident and the failure of conservative treatments to alleviate those symptoms that the accident would be a material contribution to the need for that surgery and that, but for this accident, the claimant would not have proceeded to surgery.

Would Mr Al Khafaji’s surgery mean his cervical spine injury was more than a minor injury?

Mr Al Khafaji’s cervical spine injury caused by the motor accident was, in the medical members of the Panel’s view a soft tissue injury because there is no evidence of radiculopathy (within the meaning of the Guidelines). Therefore Mr Al-Khafaji’s neck injury is currently a minor injury within the statutory definition. However, if he has the surgery does this take the injury outside the definition?
The word “injury” is defined in s 1.4 of the MAI Act as “personal or bodily injury”. Ongoing statutory benefits and entitlement to recover damages depends on “injuries resulting from the motor accident” being minor injuries. As the panel in Reed v Allianz Australia Insurance Limited[20] said at [144], “The contextual meaning of minor injuries in the MAI Act is directed to what is caused by the motor accident.”
[20] [2022] NSWPICMP 287.

The Panel is not of the view that s 1.6 has a temporal focus, considering those injuries caused on the day of the accident only. Psychological injuries for example will often not become apparent for some days or even weeks and months after an accident. It might also be that an accident-related minor injury causes another, non-minor injury. For example, a claimant sustains a whiplash injury resulting in a significant loss of neck flexion and extension. Because of the way they hold their head, the injured person fails to see a defect in the footpath and falls fracturing their patella. While the initial injury was a soft tissue minor injury, the subsequent, consequential injury arguably caused by the first, would be a non-minor injury due to the bony fracture[21].
[21] Similar circumstances to the case of Pyne v Wildenfeld (1981) 26 SASR 441.
Surgery is treatment consequent upon an injury and in Mr Al Khafaji’s case, on the current information, his need for cervical spine surgery has, in the Panel’s view been caused by the accident.
Surgery without consent is a form of assault that causes injury. Surgery with consent is not an assault but is a procedure which also causes an “injury” namely an incision into the skin plus whatever is done beneath the skin.
Mr Al Khafaji has been advised to have multilevel foraminotomies which the Medical Members of the Panel note usually involves the excision of bone surrounding the nerve root exits. Bone is not a soft tissue and therefore an injury to bone, accidental or deliberate during surgery is not a minor injury. The claimant’s surgery might also involve the cutting of tendons, ligaments or other tissue impinging the nerve root. The surgery certainly involves an incision into the skin which is considered an organ of the body[22] elsewhere in the Guidelines. An injury to the skin is, in the view of the Panel not a minor injury because it is an injury to an organ not “an injury to tissue that connects, supports or surrounds [an organ] of the body”.
[22] See for example cl 6.263 found in the permanent impairment chapter of the Guidelines.
In summary, the Panel is of the preliminary view that the claimant’s surgery to his cervical spine would take his neck injury beyond the definition of “minor injury” in the MAI Act because the need for the surgery has been caused by the accident-related injury. The surgery involves cutting the skin and excising soft or hard tissue in order to alleviate impingement on the claimant’s cervical spine nerve roots and alleviate the pain and other symptoms resulting from the injury sustained in the accident.

CONCLUSION

While the Panel has expressed its preliminary view that the claimant would have a non-minor injury in the event that he proceeds to surgery, the Panel is not satisfied that, at the current time any of the claimant’s cervical, thoracic or lumbar spinal injuries fall outside the definition of minor injuries within s 1.6 of the MAI Act.
Because the Panel has come to the same view as Medical Assessor Assem, it follows that his certificate must be confirmed.

[2022] NSWPICMP 519

19 December 2022