Al-Shaya v AAI Limited t/as AAMI

DETERMINATION OF REVIEW PANEL
CITATION:	Al-Shaya v AAI Limited t/as AAMI [2024] NSWPICMP 539
CLAIMANT:	Nashwan Salim Yousif Al-Shaya
INSURER:	AAI Limited t/as AAMI
REVIEW PANEL
MEMBER:	Terence Stern OAM
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	Leslie Barnsley
DATE OF DECISION:	5 August 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical dispute; whether the physical injuries sustained were all threshold injuries; the Medical Review Panel conducted an examination and considered the factors contributing to the injury; claimant was diagnosed with an injury to the lumbar spine that was causally related to the accident and was not a threshold injury; Held – Medical Assessment Certificate revoked.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION The Review Panel revokes the certificate of Medical Assessor Wijetunga, and substitutes the determination to certify that the following injury was caused by the accident and was not a threshold injury: (a) lumbar spine. The Panel further certifies that the following injuries were also caused by the accident and were a threshold injury: (b) cervical and thoracic – whiplash associated disorder.

STATEMENT OF REASONS

INTRODUCTION

Nashwan Salim Yousif Al-Shaya (Mr Al-Shaya), the claimant, was injured in a motor vehicle accident (the accident) on 13 January 2023.
AAI Limited ABN 48 005297 807 trading as AAMI (AAMI) was the insurer.
Under the provision of the MAI Act in force at the time of the accident the statutory benefits for treatment and care cease after 26 weeks if “the person’s only injuries resulting from the motor accident were minor (threshold) injuries”.
Mr Al- Shaya submitted an Application for Personal Injury Benefits dated 23 January 2023.

Threshold injury dispute

AAMI determined that Mr Al- Shaya had sustained minor (threshold) injuries and denied liability for statutory benefits beyond 26 weeks after the accident.
He filed an application in the Personal Injury Commission (Commission) in respect of the dispute.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matters, including whether the injury caused by the motor accident was a threshold injury.
A medical assessment matter was determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.

THRESHOLD INJURY- STATUTORY PROVISIONS

Assent was given to the Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) on 28 November 2022 with various amendments commencing on 1 April 2023. From
1 April 2023 the MAI Amendment Act provides that a “minor injury” was known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.
The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
A threshold injury was defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “psychological or psychiatric injury that was not a recognised psychiatric illness”. Section 1.6(2) of the MAI Act defines a “soft tissue injury” as:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 provides that regulations may be made to exclude or include a specified injury from being a threshold injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident was a threshold injury for the purposes of the MAI Act. Version 9.2 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury was a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim was a soft tissue injury or a threshold psychological caused by the motor accident.
5.4    Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim was a threshold injury. Diagnostic imaging was 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 was 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.”
In Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372, his Honour Justice Wright stated at [35]:
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There was no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of injury
6.5 An assessment of the degree of permanent impairment was a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment was related to the accident in question was therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
6.6 Causation was defined in the Glossary at page 316 of the AMA4 Guides as follows:
‘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 was necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which was a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which was a non-medical determination.”
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7 There was no simple common test of causation that was 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 was a contributing cause, which was 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 was not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes’.”

ASSESSMENT UNDER REVIEW

The injuries referred for assessment to Medical Assessor Nelukshi Wijetunga (the Medical Assessor) in respect of the dispute as to threshold injury were:
(a)    cervical spine injury;
(b)    lumbar spine injury, and
(c)    both hands injury.
At [3]-[4] in her reasons, Medical Assessor Wijetunga noted the submissions made by Mr Al - Shaya on 30 October 2023, and AAMI in Rely on 23 November 2023.
The Medical Assessor took a pre-accident medical history at [8].
Mr Al-Shaya was born in Iraq and migrated to Australia in 2015.
At the time of the accident, he was not working. His most recent job prior to the accident was as an Uber driver which he had done about one and a half months prior to the accident.
The Medical Assessor took a history of the accident at [9] and a history of the symptoms and treatment following the accident at [10]:
“[9] Mr Al-Shaya was involved in a motor vehicle accident on the 13 January 2023 where he was the driver of an automatic 2017 Toyota corolla hatchback with no other occupants. He reports that he was stationary behind 2 vehicles when his vehicle was rear ended. He recalls that he was jolted as a result of the collision and hit his head on the back of the head rest. No airbags were deployed. No Police or Ambulance attended the scene. He was able to drive his vehicle home which was about 3 minutes. He reports being unable to drive the vehicle before it was submitted for repairs. The car was not written off. He experienced midline neck pain which extended down the back and into the head. He estimates this as 8/10 at that time. He also experienced extension of pain down to shoulders, chest, jaws.
[10] He consulted his doctor within a week, and he was referred for an MRI scan and other investigations. On a subsequent visit he was prescribed analgesia and referred for physiotherapy. He commenced this treatment shortly after his GP visit and continued with this for about 6 months. He described minimal assistance. He also undertook hydrotherapy for 1 session and did not recommence this treatment. He consulted a neurosurgeon along and was accompanied to the appointment with his case manager. However, he was unable to understand most of the consultation. He recalls that the surgeon advised him to continue with physiotherapy. He believes that his pain increased since the accident.”
The Medical Assessor listed the current symptoms at [12].
Mr Al- Shaya described constant midline neck pain which he estimated as 7-8/10. He described a severe episode recently where he reported he was unable to mobilise for a week.
He described anterior shoulder pain and hands which are the extensions from the neck.
He described midline lower back pain, which was constant and estimated at 8-9/10.
The Medical Assessor set out the clinical examination at [14] – [15]:
“Mr Al-Shaya demonstrated pain focused behaviour. He was unable to stand on his toes or heels or achieve a squatted position.
Cervical spine
There is normal spinal curvature of the cervical spine. He is tender to palpation when directly examining an area, and he does not respond when distracted. He is unable to offer a plausible explanation for this. He demonstrates a cautious range of full symmetrical movements with the exception of lateral right rotation reduced by a half. The neurological examination of the upper limbs is undertaken which reflects normal tone, muscle strength bilateral symmetrical reflexes of the upper limbs and reduced sensibility is described in the proximal part of the left upper extremity around the shoulder. This does not correlate with a specific dermatomal distribution.
Thoracic and Lumbar spine
He has normal spinal curvature of the thoracic and lumbar spine. He is tender to palpation over the paraspinal muscles of both areas. Once again there is an inconsistency in pain response between direct examination and when distracted. He predominantly describes pain in the upper to mid thoracic spine. He demonstrates a symmetrical full range of movements of thoracic and lumbar spine.

Upper extremities
He demonstrated shoulder flexion and abduction bilaterally to R/L 170/170 and 160/170 respectively. Impingement testing is negative. There are no abnormalities of his hands. There is no tenderness to palpation. He demonstrates a full range of normal symmetrical movements of both hands.”

The Medical Assessor considered this a minor accident given that there was no forward collision, no airbags were deployed, he was able to drive away, and the car was not written off.
The Medical Assessor determined that the following injuries were caused by the motor accident and were a threshold injury:
(a) cervical and thoracic whiplash associated disorder.
She further determined that the following injuries were not caused by the motor accident:
(a) lumbar spine, and
(b) hands.

SUBMISSIONS

Mr Al- Shaya’s submissions, dated 30 October 2023

Misinterpretation of crucial facts and speculation

Mr Al -Shaya submitted that the Medical Assessor did not refer to any evidence in support of his conclusion that this was a minor accident. He did not appear to have taken a history as to the speed at which the collision occurred. The rationale relied upon, being that there was no forward collision, no airbags deployed, the car was not written off and that he was able to drive away, was flawed. In any case, a rear-end collision can give rise to serious injuries.
The Medical Assessor then proceeded to assert that the mechanism of accident was not of a severity that could result in an injury to the lower back (at paragraph 18 of the MAC). This is nothing more than a conclusion arrived at based upon speculation and without any evidentiary foundation.
The Medical Assessor failed to address the key question of causation: whether the injury was caused or materially contributed by the accident; Kerr v Insurance Australia Limited [2019] NSWSC 133.

Misinterpretation of radiological evidence

The MRI of the lumbar spine dated 31 January 2023 showed:
(a) L3, L4 and L5 nerve compression, and
(b) L3/L4 moderate sized broad- based disc bulge.
These were obvious signs of radiculopathy, which amount to non-threshold injuries.

Legal and jurisdictional error

The Medical Assessor had not:
(a)    properly ascertained Mr Al- Shaya’s symptoms;
(b)    had not given Al-Shaya an opportunity to respond to the issue of whether this was a minor collision and was therefore denied procedural fairness; Jaksic v Insurance Australia Ltd t/as NRMA [2013] NSWSC 1141, and
(c)    Had not properly explained his findings as to causation, with particular regards to the actual test of causation as provided in Wingfoot Australia Partners Pty Limited v Kocak [2013] HCA 43; (2013) 252 CLR:
“The standard required of a written statement of reasons given by a Medical
Panel under s 68(2) of the Act can therefore be stated as follows. The
statement of reasons must explain the actual path of reasoning by which the
Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on
the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons
meeting that standard discloses an error of law in the way the Medical Panel
formed its opinion, the legal effect of the opinion can be removed by an order
in the nature of certiorari for that error of law on the face of the record of the
opinion. If a statement of reasons fails to meet that standard, that failure is itself
an error of law on the face of the record of the opinion on the basis of which an
order in the nature of certiorari can be made removing the legal effect of the
opinion."

AAMI’s submissions, dated 22 April 2023

Alleged ground 1

AAMI submitted that the certificate of Medical Assessor Wijetunga is a detailed, well- reasoned and compliant independent opinion based on the Medical Assessor’s examination, observations and detailed review of evidence using the entire gamut of his clinical skill and judgment.
Mr Al-Shaya complained that the opinion of the Medical Assessor that he could not have suffered injury to his lumbar spine as a result of the accident was not founded in evidence. AAMI submitted that is incorrect. Rather, the Medical Assessor was clear, as pointed out by Mr Al- Shaya in his own submissions, that the opinion was based upon a number of factors including there was no forward collision, the airbags in his vehicle were not deployed, the vehicle was able to be driven home and it was not written off.
AAMI also noted page 6 of the certificate, where the Medical Assessor recorded details of his examination (including an absence of any abnormality of the lumbar spine) and then observed the following:
“[The claimant] is observed to be very pain focused. There is an inconsistency in his response to palpation of the spinal musculature between direct examination and observed response when he was distracted. There is no plausible explanation offered.”
That opinion was consistent with the observations of Dr Malhotra within the report dated
29 June 2023 which was before the Medical Assessor (and clearly reviewed as per page 7 of the certificate) and specifically mentioned by the insurer in its primary submissions dated
22 November 2023, as follows:
“I had a discussion with Dr Federica Varela Guidetti on 5 July 2023. Dr Guidetti stated that when Mr Al-Shaya presents at the clinic he is difficult to assess as the imaging does not match his reported symptoms. Dr Guidetti stated that Mr Al-Shaya does not remain seated during the consultation with frequent postural changes however when she has observed him in the waiting room he is bending over, checking his phone and appears to be more comfortable. Dr Guidetti stated that the presentation was not consistent, and the pain described appears to be out of proportion to the injury. Dr Guidetti stated that Mr Al Shaya has been driving from his home to the practice which is approximately a 30-minute drive without traffic. Dr Guidetti stated that Mr Al-Shaya had also been adamant about not returning to uber driving however had requested her to complete a commercial license driving approval in front of the rehabilitation provider.”

Alleged ground 2

AAMI referred to page 8 of the certificate of Medical Assessor Wijetunga and, in particular, the detailed reasons spanning two pages under the heading “Causation, Diagnosis and reasons”;
“[The claimant] describes an accident where his vehicle was rear ended.
It is considered a minor accident given that there was no forward collision, no airbags were deployed, he was able to drive away, and the car was not written off.
A minor accident may cause hyper extension/flexion of the cervical and thoracic spine.
However, the mechanism of the accident was not of a severity that would result in a forced flexion of the lower back/lumbar spine beyond normal range of movement of lumbar spine. In the absence of any significant force beyond normal exposure from daily activities, a strain to the lumbar spine musculature or discs is not probable. Additionally, the MRI of the lumbar spine showed a posterior annular tear which is documented as related to degeneration. Although there are findings on MRI scan, they do not correlate with the severity of the accident. The findings are likely to be long standing.
Significant forces are required to result in a tear in the disc which were absent in the subject accident. Therefore, the lower back is probably not causally related to the motor accident. Minor accidents can however be associated with forces to the upper spine such that may result in hyperflexion extension of the cervical and thoracic spine resulting in a strain to the soft tissues. His presentation including tenderness of musculature, normal neurological examination and description of symptoms correlate with a diagnosis of whiplash associated disorder. This is a soft tissue condition and does not involve nerve injury or partial or complete tear to ligaments, tendons, menisci or cartilage and therefore is considered a threshold injury as defined by section 1.6[1] of the act.”

AAMI submitted that alleged ground 2 is without merit and the reasons given by Medical Assessor Wijetunga are clear, detailed and entirely compliant with the “actual test of causation”.

Alleged ground 3

The Guidelines were clear that radiculopathy means the presence of two or more clinical signs as outlined at clause 5.8. The clinical signs could only be detected by physical examination.
In these circumstances, AAMI submitted that the suggestion the pathology above could constitute radiculopathy is misguided and, accordingly, alleged ground 3 must fail.

EVIDENCE BEFORE THE PANEL
General practitioner’s clinical notes, Dr Federica Varela Guidetti, dated 19 January 2023

On 19 January 2023, Dr Guidetti reviewed Mr Al- Shaya and reported:
“he suffered a MVA last Saturday
got hit on the rear by another car
happened 14/1 2 at 4.20
did not went to hospital
started to feel pain hours after the accident
now the pain is 8/10 on lower back and radiates to both lower limbs
also referring pain on mid back
no bruise
ROM limited due to pain
strength on limbs is preserved
sensation and reflexes + both limbs
adv to have spine x ray and lower back MRI
voltaren for pain if needed
if worse to go to hospital
Diagnosis:
Back pain radiating to leg.”
On 9 February 2023, Dr Guidetti reviewed Mr Al- Shaya and reported:
“went to physio 2 to 3 times
says pain getting worse mainly on neck and mid back
also pain on Left shoulder
has app to see neurosurgeon on late feb
he is here today to get WCC
this is in initial WCC
also saying he feels very anxious and under stress be he can't work due to pain
adv to see psychologist
referral given
adv on MRI spine”
On 3 May 2023, Dr Guidetti reported:
“He is in a lot of pain lower back and neck”
On 28 June 2024, Dr Guidetti wrote:
“…did hydrotherapy
Felt a lot of pain after that
…
Says he is taking 3 tab lyrica 75 a day some days due to increasing pain
Has app to see spine surgeon on 11/07…”

Personal Injury Claim Form, dated 23 January 2023

In the Personal Injury Claim Form, Mr Al- Shaya stated that he suffered the following injuries as a result of the accident:
(a)    neck;
(b)    both shoulders;
(c)    hands;
(d)    back;
(e)    legs, and
(f)    psychological sequala.

Allied Health Recovery Requests, dated from 4 February 2023 to 28 June 2023

The Recovery Requests note mechanical neck pain, mechanical lower back pain, mechanical thoracic pain and left shoulder impingement.
He was noted to have 50% reduction in range of movements of cervical spine, 75% in thoracic spine and 50% to 75% of range of movements of lumbar spine.
Left shoulder showed flexion and abduction to 90°.
On 7 May 2023, it noted improvement of left shoulder movements to 100° with the remainder of the movements remaining relatively the same.

Mr John Nguyen, physiotherapist

On 2 June 2023, Mr Nguyen reviewed Mr Al- Shaya and wrote:
“Mr AL-SHAYA recovery rate is poor and experiences high levels of pain, anxiety and stress He has difficulty coping with his pain. Continuation of physiotherapy is recommended, and future physiotherapy sessions will be directly aimed at addressing his reduced objective measurements as well as improving his strength and function.”

Dr Simon McKechnie, neurosurgeon

Dr McKechnie reviewed Mr Al- Shaya on 17 November 2023 and reported:
“Mr Nashwan AI-Shaya was reviewed again on the 6th of June 2023 with his rehabilitation coordinator. He is still complaining of persistent pain particularly in the neck, both shoulders, back and lower legs.
He has now had five months of physiotherapy without relief, and I have requested he transition to hydrotherapy. He remains unfit to work at this stage.
He will remain on Mobic although there has been minimal improvement. I have next referred him for a bone scan to assess for any facet joint inflammation amenable to CT guided cortisone injections.”

Dr Malhotra, dated 29 June 2024

The report by Dr Malhotra noted Mr Al- Shaya had constant burning neck pain, which radiates down both arms to hands and constant numbness.
He experienced lower back pain into both legs and in front of thighs. It radiated to his big toes and posterior heels bilaterally.
He had only trialled one session of hydrotherapy. Examination findings showed tenderness midline over C3 to C6 and bilateral trapezius muscles. Cervical lateral rotation, flexion and extension was reduced to 20°.
Numbness over right arm on light touch, with spurring of C3/4 and normal sensation over left arm.
Tenderness over paravertebral muscles and L4 to S1. Forward flexion 20°, lateral flexion 10° bilaterally, rotation to the left 30° and to the right 20° with straight leg raising performed to 20° to 30°. No sensory deficits.
This noted the pain behaviour which had been observed by Dr Guidetti.
They noted multiple yellow flags.

Radiological investigations

Mr Al- Shaya’s investigations included an MRI of the cervical spine on 23 March 2023 which showed at C3/4 a right foraminal disc osteophyte with mild stenosis of the right neural foramen. At C4/5 there was a left uncovertebral spur. At C5/6 there was a small right foraminal disc osteophyte without significant spinal canal or neural foraminal stenosis and at C6/7 a small left foraminal disc osteophyte without spinal or foraminal stenosis.
MRI of the thoracic spine on 23 March 2023 showed the vertebral body heights were preserved. The spinal cord appeared normal. In summary there were mild uncovertebral degenerative changes of the cervical spine and small disc osteophytes with mild stenosis of the right C3/4 foramen. This could contribute to his shoulder brachalgia.
Whole body bone scan with SPECT/CT dated 8 June 2023 was an unremarkable study. There was no bone or joint abnormality demonstrated in the shoulders and no active facet arthritis in the cervical or lumbar spine and no apparent sacroiliitis.
MRI of the thoracic spine on 20 January 2023 had shown no compression fracture. There was a small bony fragment near the T1 spinous process thought to be chronic and there was a small T7/T8 right posterior paracentral disc protrusion.
MRI of the lumbar spine was reported on 9 February 2023 by his general practitioner (GP) in his letter to Dr Gordon Dandy, the neurosurgeon, as showing mild facet joint OA at L1/2 and L2/3 and at L3/4 moderate sized broad based disc bulge and small posterior central to paracentral foraminal disc protrusion and mild indentation of the anterior thecal. Mild facet OA was noted. There was mild foraminal stenosis bilaterally and the disc was contacting the exiting L3 nerve roots bilaterally. This would explain his thigh pain. At L4/5 there was a moderate sized broad based disc bulge with posterocentral left greater than right paracentral and foraminal disc protrusion with annular tear. There was moderate left subarticular zone narrowing with probable irritation of the descending left L5 nerve root. There was mild to moderate right subarticular zone narrowing on the right and posterior annular tear. There was mild facet OA bilaterally. There was moderate right and moderate left foraminal stenosis with contact of disc with the exiting L4 nerve roots bilaterally, which can also contribute to his thigh and lower leg pain.
At L5/S1 there was a minimal posterior central disc protrusion. This was consistent with radicular complaint at times extending to both calves.

THE REVIEW PANEL

At the first MRP meeting on 24 June 2024, the Panel resolved that a medical examination would be necessary to address the parties’ submissions.
The examination was conducted by Medical Assessor Drew Dixon, on behalf of the Panel, on 19 July 2024. An Arabic interpreter, Bassam Mouaykel NAATI CPN0EJO67, was present for the duration of the examination.
Mr Al- Shaya presented for a review of:
(a)    cervical spine injury;
(b)    thoracic spine injury, and
(c)    lumbar spine injury.

Pre- accident history

He had been working as an Uber driver prior to the accident.

Social history

He was born in Iraq and where he worked as a truck driver and barber. He lives in a house with his wife and daughters. He has difficulty with household chores such as heavy cleaning and difficulty doing his toenails and difficulty carrying heavy groceries and laundry. He has great difficulty doing the garden and lawns and needs help from others and has difficulty cleaning the car and with prolonged driving. He does not play sport at present. He previously played soccer when younger.

Details of the accident

The history of the accident was that on 13 January 2023 while driving an automatic 2017 Toyota Corolla hatchback he was stationary behind two vehicles when he was rear ended. He said he was jolted forward on impact and hit his head on the back of the head rest. No airbags were deployed. No police or ambulance attended the accident scene.
He was able to drive his vehicle home which was took about three minutes but was unable to drive the vehicle before it was submitted for repairs. His vehicle was not written off.

History of his symptoms and treatment following the accident

He developed pain in his neck extending into the interscapular region of the thoracic spine and into the head. He has occipital headaches and shoulder brachalgia with radiation to the trapezius muscles and had some radiation of pain to his jaw. He also reported pain in the lower back and reported burning pain down his lower extremities to both feet.
He had review by his local doctor and was referred for an MRI scan and subsequently was prescribed analgesia. He had physiotherapy treatment and GP review for approximately six months. He did hydrotherapy for one session. He consulted a neurosurgeon. He was advised by that surgeon to continue physiotherapy.

Details of relevant injuries or conditions sustained since the accident

Nil.

Current symptoms

He reports pain in the midline of his neck radiating to the shoulders with trapezial muscle pain and has intermittent paraesthesia in the little fingers of both hands. He reported interscapular pain in the thoracic spine and pain in the lower back with lumbar stiffness and has bilateral leg pain extending into his thighs and sometimes his calves and occasionally to his feet.
Today he reported the pain was more in the thighs and at times radiating to the calves. He reported difficulty with prolonged sitting and a driving tolerance of half an hour. His wife does most of the driving.

Proposed treatment

He does not take analgesia or anti-inflammatories and has finished physiotherapy. He does like gym-based exercises.

Examination

On examination at the Commission rooms on 19 July 2024, Mr Al- Shaya presented in a straightforward manner and related well to the interpreter and his answers to the questions and responses to examination were satisfactory.

Cervical spine

There was stiffness of his cervical spine with flexion extension decreased by one third and lateral rotation decreased by one quarter bilaterally and lateral flexion decreased by one third bilaterally. He had tenderness of the vertebra prominens and lower cervical spinous process and the mid and upper cervical facet joints. His cervical foraminal compression test was positive. His brachial plexus stretch test was equivocal.

Upper extremity

There was no neurological deficit in either upper extremity. His reflexes were symmetrical and his thenar power, intrinsic power and grip strength were grade 5 out of 5 bilaterally. There was no wasting of other upper extremity.

Thoracic spine

There was stiffness of his thoracic spine with interscapular pain on thoracic rotation which was decreased by one quarter. There was also tenderness in the upper thoracic spinous process region.

Lumbar spine

In the lower back there was lumbar stiffness with flexion decreased by one third with slow and jerky recovery with erector spinae muscle spasm and pain on back extension which was decreased by one third. Lateral flexion was decreased by one quarter bilaterally. There was tenderness at the L5 level in the midline and the adjacent lumbosacral facet joints. His straight leg was 60 degrees bilaterally and the sciatic nerve root stretch test was positive. There was 1cm of wasting of his left thigh. His reflexes were present and symmetrical.

Lower extremity

His gait was slow, and he was unable to toe walk, and his heel walking was associated with thigh pain and his squat chest was also associated with bilateral thigh pain. He had difficulty toe standing. He had bilateral pes plano valgus (flat feet) and made a modest arch on toes standing. His plantar reflexes were negative. There was no neurological deficit apparent in either lower extremity.

Causation

The Panel applied 5.6 of the Guidelines to determine whether the injuries caused by the accident were threshold injuries for the purposes of the Act. Taking into account the evidence available and all relevant findings, the Panel considered:
(a)    a comprehensive accurate history, including Mr Al – Shaya’s pre-accident history and pre-existing conditions;
(b)    a review of all relevant records provided to the Panel for this review, including the reports of treatment practitioners;
(c)    a comprehensive description of Mr Al- Shaya’s current symptoms;
(d)    a careful and thorough physical examination by Medical Assessor Dixon, and
(e)    the diagnostic tests available on the day of the examination.
The Panel actively considered the question of causation of the injury. The Panel noted that the accident had been described as minor by AAMI and Medical Assessor Wijetunga. The Panel noted that Medical Assessor Wijetunga had taken into account that airbags weren’t deployed, no emergency services attended, and the car remained drivable. The Panel considered that these observations were not necessarily related to the severity of the acceleration or deceleration suffered in the impact, so could not be directly taken to be reliable indicators of the likelihood of injury. Specifically, there were no rear airbags in the vehicle, the police and ambulance typically are called to demonstrably major accidents where there are overt injuries, and as a matter of common sense a car may remain drivable with significant rear-end damage.
Although the Panel directed the provision of photographs of the motor vehicles involved in the accident, none were provided.
The Panel accepted Mr Al- Shaya’s description of the impact causing back and forward movement. Furthermore, as seatbelts are asymmetric this could cause a rotational component to the flexion. Flexion and rotation as well as shear forces have the potential to cause injury to the lumbar spine. The Panel considered, taking everything into account, that the described accident could have caused injury to lumbar disc or discs.
The Panel then considered whether the accident did cause a lumbar disc injury. There was no evidence before the Panel of prior lumbar spine symptoms. There was contemporaneous evidence of pain in the lumbar spine shortly after the accident with ongoing symptoms. The Panel considered that the development of lumbar spinal pain would be consistent with a new disc lesion, and concluded that on the balance of probabilities, the motor vehicle accident did cause the disc injury.
The Panel noted the examination of Medical Assessor Wijetunga, who found on her clinical examination of the thoracic and lumbar spine that:
“He has normal spinal curvature of the thoracic and lumbar spine. He is tender to palpation over the paraspinal muscles of both areas. Once again there is an inconsistency in pain response between direct examination and when distracted. He predominantly describes pain in the upper to mid thoracic spine. He demonstrates a symmetrical full range of movements of thoracic and lumbar spine.”
The Panel contrasted the findings of Medical Assessor Wijetunga, with that of the Panel’s examination, conducted by Medical Assessor Dixon who found:
“In the lower back there was lumbar stiffness with flexion decreased by one third with slow and jerky recovery with erector spinae muscle spasm and pain on back extension which was decreased by one third. Lateral flexion was decreased by one quarter bilaterally. There was tenderness at the L5 level in the midline and the adjacent lumbosacral facet joints. His straight leg was 60 degrees bilaterally and the sciatic nerve root stretch test was positive. There was 1cm of wasting of his left thigh. His reflexes were present and symmetrical.”
For the consideration of whether or not there were clinical signs justifying a determination that the injuries referred to the Panel were not threshold injuries in accordance with the guidelines, the Panel took into account, the examination on the day and on this day, the examination of Mr Al- Shaya observed by the Medical Assessor confirmed a non – threshold injury to the lumbar spine.
The Panel did note that concerns had been expressed by AAMI relating to the pain behaviours at various examinations. These behaviours, such as guarding and undue sensitivity to light touch, are often noted in patients complaining of chronic pain and can be associated with anxiety. Mr Al- Shaya’s GP noted the development of anxiety symptoms. Furthermore, symptoms were not a differentiator between threshold and non-threshold injuries, so even a pejorative view of Mr Al- Shaya’s presentation could not be used to refute a non-threshold injury, in this case a tear of a disc.
In the interest of transparency and constructively engaging with specific arguments, the Panel sought to address the question of degenerative disease as a cause of the radiological changes noted on the MRI. The Panel considered that the patient was relatively young to be expected to manifest significant degenerative change. The Panel also noted the absence of any prior symptoms which might have been expected in the presence of prior disc protrusion. Finally, the Panel noted that a bone scan performed five months after the accident on
8 June 2023 did not show any facet joint arthritis and was described as an unremarkable study. Degenerative changes in the spine would be expected to manifest as alteration in radiopharmaceutical uptake in various components of the spine. The Panel therefore considered that on the balance of probabilities, Mr Al- Shaya had a new injury rather than degenerative changes.
The MRI of 25 January reported L3/4 moderate sized broad based disc bulge and small posterior central to paracentral and foraminal disc protrusion. Mild indentation of the anterior thecal sac. Mild to moderate right and mild left subarticular zone narrowing. Mild facet joint osteoarthritis (OA) noted bilaterally. There was mild foraminal stenosis bilaterally. Disc was contacting the exiting L3 nerve roots particularly on the right side. At L4/5 there was moderate sized broad based disc bulge noted with associated posterior central to left greater than right paracentral and foraminal disc protrusion. Moderate left subarticular zone narrowing with probable irritation of the descending left L5 nerve root. There was mild moderate right subarticular zone narrowing seen on the right. There was posterior annular tear/degeneration noted. Mild facet joint OA noted bilaterally. There was moderate right and moderate left foraminal stenosis with contact of disc with exiting L 4 nerve roots bilaterally.
On the balance of probabilities, the Panel concluded that the accident was associated with thoracolumbar injury. There was an old fracture of T1 spinous process with disc protrusion of the lumbar spine, particularly at L4/5 on MRI of 25 January 2023. The neck findings were not challenged by AAMI.
The Panel concluded that the lumbar spine was inadvertently omitted from the assessment of threshold injuries in the Medical Assessor’s Certificate dated 27 February 2024.

Conclusion

In summary, the Panel concluded that Mr Al- Shaya was involved in a motor accident where his Toyota Corolla hatchback was rear ended while stationary. He sustained:
(a)    whiplash injury to his neck when his head hit when his head hit head rest;
(b)    thoracic back strain injury, and
(c)    lower back strain injury with L3/4, L4/5 and L5/S1 disc protrusions.

In the thoracic spine there was an old fracture of the T1 spinous process which appeared chronic. In the lumbar spine he had lumbar disc protrusions as noted above with radicular complaint with bilateral sciatica.
In her certificate dated 17 February 2024, Medical Assessor Wijetunga found that

Mr Al- Shaya had injuries to the cervical and thoracic spine – whiplash associated disorder, and these were threshold injuries for the purposes of the Act. She noted that the injuries referred to the Commission were:
(a)    cervical spine injury;
(b)    lumbar spine injury, and
(c)    both hands injury.
She did not draw a conclusion on the lumbar spine but clinically he did have low back pain with lumbar stiffness with dysmetria, erector spinae muscle spasm and radicular complaint in both lower extremities without gross neurological deficit with radiological evidence of disc protrusions in the lower lumbar spine.
These disc protrusions represent a non-threshold injury.

Determination

The Panel revokes the certificate of Medical Assessor Wijetunga, and substitutes the determination to certify that the following injury was caused by the accident and was not a threshold injury:
(a) lumbar spine.
The Panel further certifies that the following injuries were also caused by the accident and were a threshold injury:
(a) cervical and thoracic – whiplash associated disorder.

[2024] NSWPICMP 539

5 August 2024