Alalawi v Allianz Australia Insurance Ltd
[2025] NSWPICMP 499
•10 July 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Alalawi v Allianz Australia Insurance Ltd [2025] NSWPICMP 499 |
CLAIMANT: | Taha Alalawi |
INSURER: | Allianz Australia Insurance Limited |
REVIEW PANEL | |
MEMBER: | Gary Victor Patterson |
MEDICAL ASSESSOR: | Tai-Tak Wan |
MEDICAL ASSESSOR: | David Gorman |
DATE OF DECISION: | 10 July 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); assessment of treatment and care disputes; claimant was a seat-belted driver stationary at traffic lights when his vehicle was struck from behind; claimant’s vehicle was pushed into the car in front of it; claimant’s airbags did not deploy; claimant was taken by ambulance to hospital with early complaints of neck pain which became more severe; claimant underwent CT scan imaging of the cervical spine and head; claimant discharged later that day with analgesia; claimant attended his general practitioner, complaining of neck pain; claimant cannot recall any symptoms of lower back pain until between 1-2 weeks after the subject accident; previous Review Panel decided threshold injury dispute; it was not satisfied that claimant suffered an injury to the lumbar spine in the subject accident; it was persuaded by the delayed reporting of symptoms until 1-2 weeks post-accident; Medical Assessor (MA) found that proposed lumbar surgery is not related to the subject accident but was reasonable and necessary in the circumstances; MA adopted same causation findings as previous Review Panel; Held –Review Panel satisfied that proposed surgery is related to the subject accident but is not reasonable and necessary; reasons explained; MAC revoked. |
DETERMINATIONS MADE: | Certificate issued under s 7.23(1) of the Motor Accident Injuries Act2017 (the Act) 1. The Review Panel revokes the certificate dated 20 September 2024 and issues a new certificate determining that: (a) the following treatment and care: · L3/L4 and L4/L5 decompression surgery proposed by Dr Ali Ghahreman does relate to the injury caused by the motor accident. Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 (the Act) 1. The Review Panel revokes the certificate dated 20 September 2024 and issues a new certificate determining that: (a) the following treatment and care: · L3/L4 and L4/L5 decompression surgery proposed by Dr Ali Ghahreman is not reasonable and necessary in the circumstances. |
STATEMENT OF REASONS
INTRODUCTION
On 10 April 2021, Taha Alalawi (the claimant) was the seat-belted driver of a Hyundai motor vehicle that was stationary at traffic lights on The Horsley Drive in Wetherill Park, when his vehicle was struck from behind. The claimant’s vehicle was pushed into the car in front of it. His airbags did not deploy. His car was towed from the scene and later written off by his insurer. The claimant says that he sat in his vehicle for about ten minutes before he alighted. Ambulance Officers were called to the scene by the insured driver.
The claimant was taken by ambulance to Fairfield Hospital with early complaints of neck pain which became more severe. The claimant underwent CT scan imaging of the cervical spine and head and was discharged later that day with analgesia. The claimant attended his General Practitioner, a few days later, complaining of neck pain. He subsequently was referred for MRI scan of the cervical spine. The claimant cannot recall any symptoms of lower back pain until between ten days to two weeks after the subject accident. He was referred for CT scan imaging of the lumbar spine which was performed on 7 May 2021. He was referred for physiotherapy and used anti-inflammatory medication.
The claimant was referred to Dr Ghahreman, neurosurgeon, whom he attended in July 2022. He underwent a spinal injection. The claimant says that his back pain intensified in early 2024. Dr Ghahreman informed the claimant that he was a candidate for spinal decompression surgery to address spinal stenosis.
The insurer indemnifies the owner and/or the driver of the at-fault vehicle for liability to pay to the claimant any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the Act). The insurer admitted liability for the claim, but declined the claimant’s request for approval of decompression surgery at L3/L4 and L4/L5 recommended by Associate Professor Ghahreman. That refusal was confirmed upon internal review on 31 May 2024.
ASSESSMENT UNDER REVIEW
The following treatment disputes were referred by the Personal Injury Commission (Commission) to Medical Assessor Alan Home for assessment:
· whether the L3/L4 and L4/L5 decompression surgery proposed by Dr Ali Ghahreman is related to the injury caused by the motor accident, and
· whether the L3/L4 and L4/L5 decompression surgery proposed by Dr Ali Ghahreman is reasonable and necessary.
Medical Assessor Home certified on 20 September 2024 as follows:
The following treatment and care:
- L3/L4 and L4/L5 decompression surgery proposed by Dr Ali Ghahreman
DOES NOT RELATE TO THE INJURY caused by the motor accident.
The following treatment and care:
- L3/L4 and L4/L5 decompression surgery proposed by Dr Ali Ghahreman
IS REASONABLE AND NECESSARY in the circumstances but not causally related to the injuries caused by the motor accident.
Medical Assessor Home agreed with the reasoning of a previous Review Panel and concluded that the claimant’s lower back injury was not caused by the accident. Medical Assessor Home also found that the progression of degenerative change in the claimant’s lumbar spine is not causally related to the subject accident. Medical Assessor Home noted that he was not bound by the decision of the previous Review Panel. It dealt with the issue of threshold injury.
The claimant sought a review of Medical Assessor Home’s certificate on the basis that the assessment was incorrect, within the meaning of s 7.26 of the Act, in a material respect. The claimant relied on the particulars set out in the application and supporting documentation. The claimant brought the application within the time prescribed by cl 34 of Procedural Direction
PIC 7 (28 days).The claimant submits that Medical Assessor Home made material errors, in conducting his medical assessment, as follows:
(a) application of an erroneous test in relation to the causation of lumbar spine injury, and
(b) failure to afford procedural fairness.
The claimant submitted that Medical Assessor Home failed to explain why he considered that the 10-day delay in onset of back pain is medically unlikely to relate to the subject accident.
The claimant notes that Medical Assessor Home adopted the same reasoning as the previous Medical Review Panel in their decision dated 22 November 2022. The claimant submits that neither Medical Assessor Home, nor the previous Review Panel, addressed the question of whether, on the balance of probabilities, the motor vehicle accident caused injury to the lower spine.
The claimant submitted that delay must not be treated as conclusive of the question of causation, not least because it is possible that causation may exist without a documented contemporaneous complaint. Reference is made to Bugat’s[1] case. The claimant submitted that any pre-existing complaints he may have experienced subsided years before the subject accident and that there is no medical evidence of ongoing back pain or treatment leading up to the accident.
[1] Bugat v Fox [2014] NSWSC 888
The claimant submitted that the opinion of the claimant’s treating specialist (Associate Professor Ghahreman), that the back injury is causally related to the subject accident, should be given considerable weight, particularly given the absence of any substantial pre-existing back issues prior to the accident.
The claimant submitted that post-accident scans provide clear evidence of injury to the claimant’s lumbar spine which was not present in any pre-accident scans. Specifically, so it was submitted, the scans revealed:
(a) discs abutting the L3 nerve root, which were not present in pre-accident scans;
(b) discs abutting the L4 nerve root and their respective exit foramina, and
(c) the L5/S1 disc abutting the LS nerve root.
It was submitted that Medical Assessor Home mis-applied the principles of causation in concluding that the claimant’s condition is degenerative rather than causally related to a traumatic incident. This conclusion as made, so it was submitted, without providing any further medical reasoning or explanation, which constitutes a failure to properly apply the definition of causation under the relevant guidelines.
The claimant’s review application was opposed by the insurer on various grounds. It is not necessary to refer to those submissions in detail as they were not accepted by the President’s delegate. Briefly, the insurer submitted as follows:
“The insurer disputes that Medical Assessor Home failed to adequately assess causation of the alleged lumbar spine injury and that he “wrongly treated the absence of contemporaneous documentation as decisive on the issue of causation.” The insurer submits that Medical Assessor Home provided a clear and sufficiently thorough discussion of causation in his certificate.”
The insurer submitted it is clear that, while Medical Assessor Home considered the delayed onset of lower back symptoms when assessing causation, he also considered the following factors:
· the lack of acute or new changes on the post-accident imaging when compared with the pre-accident imaging, and
· the worsening of symptoms, leading to the suggestion of surgery by Associate Professor Ghahreman, occurred in the months leading up to March 2024. The insurer submits it was open to the Medical Assessor to draw on his clinical expertise and determining that the worsening of symptoms, almost three years after the accident, was attributable to the degenerative condition, rather than to any acute injury sustained in the accident, which was not verified by any post-accident imaging.
The insurer submits the delayed onset of symptoms was a relevant and significant factor in relation to causation which the Medical Assessor was required to consider.
The insurer submitted that Medical Assessor Home provided an adequate path of reasoning in his assessment of causation and that he was under no obligation to provide more extensive reasoning, or a more in depth discussion, of the various causal possibilities.
President’s delegate Rachel Brittliff issued a Determination of an Application for Review of a Medical Assessment on 20 November 2024 which stated the satisfaction of the President’s delegate that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect. The basis of that decision was stated to be that Medical Assessor Home noted that the post-accident imaging was largely the same as pre-accident imaging. However, the previous imaging did not describe the L3/L4 discs abutting nerve roots.
Accordingly, the review application was accepted and was referred to the Review Panel, which is to reassess the disputes referred to Medical Assessor Home, unless the parties otherwise agree.
The Review Panel notes that some delay in reporting may have been caused by the claimant’s usual GP referring him to another GP for treatment as this is a motor vehicle case.
The Review Panel notes that, in his description of the findings of the CT lumbar spine dated
7 May 2021, Medical Assessor Home repeatedly uses the word “intending” which possibly should be “indenting”The parties were invited to make further submissions in relation to the matters canvassed in the preceding two paragraphs. No further submissions were made.
PREVIOUS ASSESSMENTS
Medical Assessor Shahzad certified on 9 June 2022 that the claimant suffered radiculopathy into the upper limbs, left shoulder and left sacroiliac joint, which were not a minor injury, within the meaning of the Act. Upon review, a previous Panel (consisting of Principal Member Harris with Medical Assessors Barnsley and Couch), issued a new certificate that the injury to the cervical spine, suffered in the subject accident, was a minor injury. That Panel found that the claimant did not suffer any other injury in the subject accident. Specifically, in relation to the lumbar spine, the Panel was persuaded by the delay of one to two weeks in the onset/complaint of symptoms.
STATUTORY PROVISIONS
A medical assessment matter is determined in accordance with s 63 of the Act. The matter is determined at first instance by a Medical Assessor pursuant to and, on review, by a Review Panel consisting of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
Part 5 of the Personal Injury Commission Act 2020 (the PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission, including proceedings before a Panel, reviewing a decision of a Medical Assessor.[2]
[2] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (the PIC Rules) are made pursuant to Part 5 of the PIC Act. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written Application.[3]
[3] Rule 128 of the PIC Rules.
The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[4]
[4] Section 7.26(6) of the Act.
All members of the Review Panel had no previous involvement with the claimant or with this matter.
CAUSATION OF INJURY
Causation of injury is addressed in the Motor Accident Guidelines as follows:
“6.5 An assessment of the degree of permanent impairment is a medical assessment matter under cl 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 is related to the accident in question is therefore implied in all such assessments. Medical Assessors must be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.
6.6 Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows:
Causation means that a physical, chemical or biological 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:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contributed to the worsening of the impairment, which is a non-medical determination.
This, therefore, involves a medical decision and non-medical informed judgment.
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.”
See Briggs v IAG Limited t/as NRMA Limited.[5] See also Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956,[6] wherein 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 is no reason to think that different principes were intended to be applied when a medical assessment was being made in relation to causation of minor injuries.”
[5] Briggs v IAG Limited t/as NRMA Insurance [2022] NSWSC 372.
[6] Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956.
Wright J then described the Panel’s role in a medical review which is to:
“Consider whether the motor accident did cause or contribute to (the claimant’s condition). This requires, not a consideration of material derived as a result of an internet search… but rather a consideration of the material referred to in 5.6 of the Guidelines, namely all the evidence available to the Panel, including all relevant findings derived from:
(1) a comprehensive, accurate history, including pre-accident history and pre-existing conditions;
(2) a review of all relevant records available at the assessment;
(3) a comprehensive description of the injured person’s current symptoms;
(4) a careful and thorough physical examination;
(5) diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
BUNDLES OF DOCUMENTS
The parties have presented their respective bundles of documents upon which they rely. The Review Panel (Panel) has read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel, or a Panel Member, has not read it, nor taken it into consideration. The same principle applies to parties not referring to, nor specifically relying upon, a document in their own bundle and submissions.
The fact that evidence is not referred to in these reasons does not mean it has been overlooked. It is not required that each piece of evidence be mentioned. The Panel is not required to “analyse every piece of information from every opinion contained in a document with which it was provided”. The Panel has come to its own conclusions and has taken its own history.
MATERIAL BEFORE THE REVIEW PANEL
The claimant relied upon the following material which the Panel has considered:
Description of Document
Date
Annexure No.
Page
Claimant’s review submission
16/10/2024
A1
1
Previously summarised.
Claimant’s submissions for treatment dispute
05/06/2024
A2
6
Previously summarised.
MAS Certificate of Medical Assessor Home
20/09/2024
A3
11
Application for personal injury benefits
28/04/2021
A4
23
Reports of Professor Ali Ghahreman
Various
A5
29
20/07/2022:
He developed severe lower back pain a week after the motor accident. MRI lumbar spine. Severe pain was present for two weeks and mild pain affected him on an ongoing basis with fluctuation between the neck and lower back pain. In the past few weeks….. the lower back is much more severely affecting him. He has had a number of episodes of his upper and lower limbs “ceasing up” (sic).
MRI lumbar spine: multilevel disc bulges and annular tears extending from L1/L2 to L5/S1 inclusive. Significant disc desiccation.
22/08/2022:
A significant lower back injury associated with the car accident. He has a significant annular tear at L4/L5 with associated canal stenosis and lateral recess stenosis….
His lumbar spine showed a very large annular tear at L4/L5 with canal and lateral recess stenosis of a moderate nature.
11/11/2022:
Continue to experience low back pain with radiation to the left buttock and posterior left thigh. Following his injection experienced an improvement for about two weeks but the result was incomplete and temporary. He describes constant background ache with sharp shooting exacerbations of lancinating pain.
11/03/2024:
Has bilateral lower back and lower limb pain worse on the left. He has canal stenosis and lateral recess stenosis affecting the L4/L5 and to lesser extent L3/L4 segments. In view of failure of conservative measures, I have recommended lumbar decompression through a laminotomy at L4/L5 and L3/L4. I have discussed the option of a lumbar laminectomy for refractory claudication and radicular symptoms. Neurogenic claudication and radicular symptoms have an 85% chance of improvement or resolution. The risks of the procedure were outlined including a discussion of the potential for nerve root injury or root swelling (2%) causing increased numbness, weakness, or severe neuropathic pain. Risk to life and paraplegia were mentioned as remote uncommon risks. The risk of CSP leak (1%) and wound healing problems with a need for flatbed rest or reoperation were outlined. There is a 1% risk of infection which may be deep and necessitate reoperations, and prolonged antibiotics therapy. Fusion for instability, residual or recurrent symptoms is required in 5% of patients undergoing laminectomy. There is a risk of haemorrhage and haematoma, DVT, PE, other cardio pulmonary This report complications, pneumonia, UTI and allergic reactions. Fully informed consent was provided.
CTP please approve surgery: L4/L5 and L3/L4 decompression.
Reports of Dr Sanki, general surgeon
Various
A6
34
30/04/2021:
This report is not relevant for the Panel’s consideration as it deals with disc injury at C3/C4 and C5/C6.
13/05/2021:
Dr Sanki refers to a CT scan investigation that revealed the following:
1.Disc bulges at L2/L3, L3/L4, L4/L5 and L5/S1
2.An element of final spinal stenosis due to the thickened ligamentum flavum and disc protrusion
Patient is required to see the physiotherapist and do swimming exercises.
27/05/2021:
Patient was advised to undergo physiotherapy to the cervical and lumbar regions of his spine.
20/09/2021:
Mr Alalawi is diagnosed to be suffering from aggravated pre-existing degenerative changes in the cervical and lumbosacral regions of the spine. MRI investigations showed small disc bulges at C4/C5 and C5/C6, which could be pre-existent to the motor vehicle accident or as a result of the motor vehicle accident. The radiological investigations also showed disc bugles at L2/L3, L3/L4 and L4/L5, which could be a direct result of the motor vehicle accident.
03/02/2022:
Consultation on 28 January 2022 when the claimant complained of multiple aches and pain in his back and neck. Physical examination showed the following:
1.Normal lordotic curve of the lumbar spine
2.Mild kyphosis in the thoracic spine
3.Palpation of his spine revealed tender spots in the thoracolumbar region
Diagnosis of myofascial pain, due to the presence of trigger spots.
30/06/2022:
Mr Alalawi was seen by me on 16 June 2022. He explained that he found physiotherapy effective and requested continued physiotherapy for his lower back. CT scan of his lumbosacral spine done on 6 May 2021 showed the following:
1.Mild to moderate disc bulge at L2/L3, causing minor narrowing of the exit foramina on both sides
2.At L3/L4, there was mild to moderate broad base disc bulge indenting the anterior part of the thecal sac and causing some ligamentum flavum hypertrophy, with minor narrowing at the exit foramina. The disc was found to be abutting each L3 nerve root.
3.At L4/L5 and L5/S1, there was also moderate broad based disc bulge with indentation of the thecal sac ligamentous flavum hypertrophy and facet joint arthritis, causing narrowing of the spinal canal and also causing abutment of the disc on each L4 and L5 nerve root.
I will recommend patient to have facet joint injection cortisone and epidural cortisone injection.
Patient’s recent MRI, however, shows a different picture. The most important feature of the finding is that patient has posterior aspect of a disc bulge at L4/L5 and a similar feature suggested the presence of high intensity zone, causing annular fissure.
01/07/2022:
Not relevant for Panel’s consideration.
13/05/2024:
Seen by me on 6 May 2024 when he complained of continuous lower back pain, radiating to the lower limbs, weakness in the legs, inability to sit or stand for long periods.
He stated Professor Ali Ghahreman, neurosurgeon, advised surgery for his spinal stenosis and disc bulge at L4. It is my opinion that Mr Alalawi could benefit from surgery to get pain relief.
Reports of Mr Kasim Abaie, psychologist
21/09/2021
A7
43
Not relevant for Panel’s consideration.
Clinical records of Four Health Medical and Dental Centres
11/10/2023
A8
46
Clinical notes of Fairfield District Medical Centre
25/03/2022
A9
170
Clinical notes of Essential Care Family
19/09/2023
A10
186
Clinical notes of Hall Street Medical Centre
11/03/2022
A11
199
Clinical notes of Fairfield Hospital
Various
A12
319
ED Discharge referral from Fairfield Hospital
10/04/2021
A13
417
ED Discharge referral from Fairfield Hospital
05/08/2021
A14
420
Ambulance report
10/04/2021
A15
524
Case description: T/T 43 year old male neck and head pain post MVA. O/A patient seated on grass. Per patient was driving at approximately 60 km/h, and was running to from behind by car, shoving him into car in front. Nil LOC, head strike or airbags deployed. Patient able to self-extricate and wait 30 minutes until Paramedics arrived. OE Patient alert, orientated and well-perfused. Observations unremarkable. Patient witnessed to be moving head around with full ROM. Nil RESP, GI, neuro, cardiac or urinary issues on concerns noted or stated. Lungs EC, nil signs of injuries or trauma. Patient ambulant on scene. Patient put on stretcher and cervical collar placed on patient. Patient refused pain relief. Patient transported to Fairfield Hospital for further investigation with nil changes enroute.
CT lumbosacral spine
07/05/2021
A16
430
See previously.
MRI lumbar spine
11/08/2021
A17
432
See previously.
Certificate of Capacity
Various
A18
434
Contrary to the Panel’s direction, the claimant did not indicate which of the voluminous entries in the clinical notes are said to be relevant to the matters in issue, for the Panel’s determination.
The insurer relied upon the following material which the Panel has considered:
Doc No.
Description
Date
Page
1
Insurer’s submissions (review reply – treatment dispute)
04/11/2024
2 – 4
2
Insurer’s submissions (treatment dispute)
21/06/2024
5 – 8
(a) In relation to the proposed L4/L5 and L3/L4 decompression surgery as proposed by Associate Professor Ali Ghahreman, the insurer submits that the request for treatment does not relate to the injuries sustained in the motor accident and is not reasonable and necessary in the circumstances. The insurer refers to Part 4, cl 4.80 of the Guidelines.
(b) The insurer submits the claimant did not sustain an injury to the lumbar spine in the subject motor accident. The insurer relies on the Certificate of the Review Panel dated 22 November 2022 to that effect.
(c) The insurer submits the existence of spondylotic changes and small annular fissures is degenerative and not acute pathology.
(d) The insurer submits the imaging, in combination with the pre-accident medical records, confirm the lumbar pathology was pre-existing and symptomatic, as recent as seven months before the accident.
(e) The insurer relies on the NSW Ambulance report and the ED discharge referral of Fairfield Hospital, dated 10 April 2021, neither of which reported any injuries or pain to the lumbar spine. The claimant’s GPs did not record complaints pertaining to the lower back until 6 May 2021, almost one month after the subject accident.
(f) In keeping with the findings of the Review Panel Certificate dated 22 November 2022, the insurer submits the pre-existing lower back injury, as well as the delay in onset of symptoms following the accident, together with the claimant’s confirmation of delay in onset, confirm no injury or aggravation to the lumbar spine was sustained in the subject accident.
(g) In the absence of a causal relationship between the alleged injury and the accident, the insurer submits that surgery for such injury is not reasonable or necessary in the circumstances.
3
CT lumbosacral spine
07/05/2021
9 - 10
Dr Joseph Sanki reported minor broad-base disc bulges at L2/L3, L3/L4, L4/L5 and L5/S1. He states that spondylotic change is present in the sites described.
4
PIC Review Panel Certificate
22/11/2022
11 - 26
See previously.
5
Updated clinical notes of Fairfield District Medical Centre
18/09/2024
27 - 44
EXAMINATION REPORT
The examination report of Medical Assessor David Gorman and Medical Assessor Tai-Tak Wan is as follows:
Taha Alalawi MRP Examination
10 April 2025
Assessor David Gorman in PIC Rooms with Dr Tai-Tak Won participating via Teams video link
He attended the assessment
The history was obtained with the assistance of an Arabic language interpreter, Mr Elias Zakharia, NAATI number: CPN1RP72A.
HISTORY
Pre-accident medical history and relevant personal details
Mr Alalawi is a 46 year old man. He is right-hand-dominant.
He is not working at present. He has been caring for his son. He was working for Uber X and then Uber Eats.
He was born in Iraq and came to Australia in 2010.
He is married with 4 children aged 23, 21, 17 and 7 years.
Mr Alalawi confirms a past episode of low back pain which occurred in 2015 for which he attended Liverpool Hospital. He underwent x-ray of his lumbar spine. He subsequently attended his general practitioner who arranged CT scan imaging of the lumbar spine. He recalls that pain settled soon after the investigations. He said that he did not experience further back pain in the period leading up to 2021. He could work as a Uber driver for 12 hours per day he reported.
I note from the medical record there was one episode of neck pain, but not back pain, recorded in 2020. However, the claimant could not recall any past history of neck pain.
History of the motor accident
On 10 April 2021 he was the seat-belted driver of a Hyundai 2016 car, stationary on Horsley Drive in Wetherill Park when his vehicle was struck from behind. He said that his car was pushed into the car in front, but airbags did not deploy.
He recalled his head moving backwards and forwards at impact causing neck pain. His body was “stiff”. He recalled “burning” on his head and neck.
His car was towed from the scene and later written-off. He recalls that he sat in his vehicle for 10 minutes before he alighted. Ambulance was called to the scene by the other driver.
The Ambulance Report of 10 April 2021 sets out complaints of neck and head pain post-motor vehicle accident. On arrival the patient was seated on the grass. He was transferred to Fairfield Hospital.
History of symptoms and treatment following the motor accident
The neck pain became more severe. He confirms that he underwent CT scan imaging of the cervical spine and head on 10 April 2021 at Fairfield Hospital. He was discharged with analgesia.
He attended his general practitioner, Dr Hanna on 16 April 2021 complaining of neck pain. He cannot recall any symptoms of lower back pain until between 10 days to two weeks after the accident. He says that Dr Hanna was not prepared to see motor vehicle cases. He was referred on to Dr AJ Sanki, whom he also attended on 16 April 2021. He was subsequently referred for MRI scans of the cervical spine.
He recalls that after the onset of low back pain he returned to Dr Sanki. He was referred for CT scan imaging of the lumbar spine performed 7 May 2021. He was referred to physical therapy in late May 2021.
At Hill Street Medical on 22 June 2021 he then saw Dr Osman. An MRI scan of cervical and lumbar spine. He also recorded that he 1-2 weeks after the accident he “started having lumbar spine back pain. Currently neck and lower back pain.”
Certificates of Capacity commencing 2 July 2021 from Dr Osman detail neck and back complaints.
He was referred to Dr Ghahreman, neurosurgeon, whom he attended in July 2022.
The report of Dr Ghahreman dated 20 July 2022, some 15 months post-accident details early onset of neck pain following the subject accident. He states that a week later he developed severe low back pain. He was then sent MRI scans of the lumbar spine. He reviewed the imaging and found that MRI scans of the lumbar spine demonstrated multilevel disc bulges and annular tears from L1/2 to L5/S1 inclusive, with significant disc desiccation. In the cervical spine there were mild disc bulges without neural compression at C4/5 and C5/6. New imaging was requested.
I note the report from Dr Ghahreman to the physiotherapist dated 22 August 2022 opined that “the gentleman had a significant lower back injury associated with a car accident with an annular tear.”
He underwent a spinal injection. He recalls transient benefit for up to a week following the lumbar spine injection.
He says that his back pain intensified in early 2024. He was subsequently referred back to Dr Ghahreman who arranged further imaging. He was told by Dr Ghahreman that he was a candidate for spinal decompression surgery to address spinal stenosis.
In the further report of Prof Ghahreman of 11 March 2024 there was reference to the history of the development of severe low back pain a week after the accident. Severe pain presented for two weeks, and milder pain affected him on an ongoing basis with fluctuation between the neck and lower back pain. “In the past few weeks the pain has been a severe disabling pain. The lower back is much more severely affecting him. He has had a number of episodes of the upper and lower limb seizing up on him.” He took the history that there was significant pain in the back, affecting both lower limbs, more so on the left side associated with numbness and paraesthesia in the posterolateral thigh and leg. The injection helped him for a short period. At this examination he documented bilateral lower back and lower limb pain, worse on the left with canal stenosis and lateral recess stenosis affecting L4/5 and to a lesser extent L3/4.
In view of the failure of conservative measures he recommended lumbar decompression through a laminotomy at L4/5 and L3/4. The benefits and risks of surgery were discussed.
I note the report of Dr Sanki details presentation on 6 May 2024 with complaints of continuous lower back pain radiating to the lower limbs, weakness in the legs and inability to stand for long periods. He supported the view that there was a requirement for surgical treatment.
He saw Dr Ghahreman again around 1 week before this assessment and has had a further MRI on 27 April 2025. He is still recommending lumbar spinal surgery.
Current symptoms
Mr Alalawi reports current symptoms of constant low back pain of severe intensity. The pain mainly radiates to the left buttock.
The pain radiates to a minor extent down his legs. He has “numbness” and “pins and needles” in the feet.
He reports a sitting tolerance of 30 minutes and a similar tolerance for driving. He reports a walking tolerance of two to three hundred metres.
He is restricted in forward bending at the waist. He is able to climb a short flight of stairs. His sleep is disrupted. He estimates a lifting tolerance of three kilograms. He does not engage in domestic chores.
He says that he pushed himself to return to Uber work because of financial reasons. He however has not worked for 18 months.
Current treatment
He has not had any physiotherapy for 1.5 years except for 5 Medicare funded sessions. He had previously received around 80 sessions of therapy directed toward his complaints of neck and back pain.
He reports current use of Mobic one tablet daily, Lyrica 75mg bd and Panadeine Forte one tablet daily at the most. He takes Palexia 50mg IR when the pain is very severe.
CLINICAL EXAMINATION
General presentation
Mr Alalawi is a 46-year-old standing 165 centimetres, weighing 62.3 kilograms.
Cervical Spine
Examination of the cervical spine reveals normal spinal curvature. There is no muscle spasm. Active cervical flexion is performed to normal range and extension normal range. There was mild limitation in left rotation of the cervical spine during the consultation but he turned his head easily to the left at other times during the consultation.
Neurological examination of the upper extremities reveals normal upper limb power in all muscle groups. There is normal sensation. The deep tendon reflexes are symmetrically preserved. There is no muscle wasting.
The circumference of the arms and forearms are symmetrical. There is a full range of active motion of both shoulders.
Lumbar Spine
On examination of lumbosacral spine, there is lumbar flexion performed to 3/4 normal range, extension 1/3 normal range, lateral flexion performed to 2/3 normal range on each side.
Straight leg raise was negative.
Neurological examination of lower extremities reveals normal lower limb power in all muscle groups. The deep tendon reflexes at the knees, ankles and hamstrings were symmetrical. There is normal sensation. There is no muscle wasting.
Comments on consistency
Mr Alalawi was reasonably consistent throughout the examination although during the formal examination he was more restricted at times than observed at other times.
Summary of relevant radiological and medical imaging and other investigations
The disc containing the following scans was reviewed by Assessor Gorman at the PIC Rooms on 1 May 2025. He confirmed the findings in the radiology reports.
Pre-Accident:
• X-ray lumbar spine dated 25 April 2015: normal alignment of the lumbar spine. Preservation of vertebral body heights.
• CT lumbar spine dated 8 May 2015: at L2/3 mild to moderate disc bulge, indentation of the anterior thecal sac, but no significant stenosis. No foraminal nerve root compression. At L3/4 there is a moderate disc bulge with mild canal stenosis. At L4/5 there is a mild disc bulge. There is minimal facet arthropathy and mild ligamentum flavum hypertrophy. There is mild canal stenosis. No foraminal nerve root compression. At L5/S1 there is mild disc bulging.
Post-Accident:
• CT lumbar spine dated 7 May 2021: at L2/3 mild to moderate disc bulge. Disc is intending the anterior part of the thecal sac with minor narrowing of the exit foramina bilaterally. At L3/4 mild-to-moderate broad-based disc bulge. Disc is intending the anterior part of the thecal sac. Canal stenosis present at this level due to a combination of disc bulge and ligamentum flavum hypertrophy. There is minor narrowing of the exit foramina bilaterally. The disc is abutting each L3 nerve root and the respective exit foramen. At L4/5 there is a moderate broad-based disc bulge. The disc is intending the anterior part of the thecal sac. Canal stenosis is present at this level due to a combination of disc bulge, ligamentum flavum hypertrophy and facet joint arthritis. The disc is causing a minor narrowing of the exit foramina bilaterally. The disc is abutting each L4 nerve root within their respective exit foramen. At L5/S1 there is a minor broad-based disc bulge. The disc is abutting the anterior part of the thecal sac. Endplate osteophytes and intervertebral discs are causing mild narrowing of the exit foramina bilaterally. The disc is abutting each L5 nerve root within their respective exit foramen.
• MRI of the lumbar spine dated 11 August 2021: at L2/3 mild posterior disc bulge present. No canal stenosis. No exit foraminal narrowing. There is a small annular fissure. At L3/4 mild posterior disc bulge is present. There is no canal stenosis. There is a small annular fissure. At L4/5 mild posterior disc bulge present. No canal stenosis. No exit foraminal narrowing. Small annular fissure. At L5/S1 no focal disc herniation, canal or foraminal stenosis.
DETERMINATIONS
Diagnosis and Causation
Mr Alalawi was involved in a motor vehicle accident in which his vehicle was struck from behind. He also recalls a secondary impact at the front. There was early documentation of neck pain.
The onset of lower back pain was delayed by at least 10 days, possibly two weeks. It has persisted since that time.
There is a pre-existing history of an episode of lower back pain in 2015 at which time degenerative changes were noted in the lumbar spine. The post-accident imaging demonstrated similar changes. I understand that there has been a progression of his symptoms in the last six months, leading to a further medical presentation in March 2024. He has been advised that he may benefit from decompression surgery by his treating surgeon Dr Ghahreman.
The Review Panel Assessment of John Harris, Les Barnsley and Michael Couch dated 22 November 2022 was a minor injury dispute. With regard to the lower back injury the previous Panel noted that there was a significant delay in the onset of back pain following the motor accident. That Panel opined that a 10-day delay in the onset of back pain is medically unlikely to relate to the motor vehicle accident. The onset of symptoms following the motor accident is more explicable based on the degenerative lumbar spine, which was at least symptomatic in 2015. The previous Panel was not satisfied that the claimant injured his lower back in the motor accident. The previous Panel found no evidence of radiculopathy at the time of the assessment.
This Panel agrees that there is no radiculopathy but disagrees with the previous Panel findings that the 1-2 weeks delay negated the accident as aggravating the pre-existing degenerative disease. It was possible that because of the initial severe neck pain Mr Alawi ignored other symptoms for 1-2 weeks.
This Panel accepts that he had pre-existing degenerative disease but that it was not symptomatic from 2015 to 2021. This Panel believes that he has had an aggravation of his degenerative lumbar pain caused by the accident and that the aggravation continues.
Treatment – reasonable and necessary
The Panel believes that the proposed treatment is not reasonable and necessary.
The ongoing pain is more axial and not radicular in nature. There is no radiculopathy. The pain is more likely from the degenerate discs or from the facet joints than from nerve compression. It is unlikely that the proposed lumbar decompression surgery will be beneficial for either of these causes of pain. The Panel acknowledges that it cannot be certain of that conclusion but is satisfied of it on the balance of probability.
CONCLUSION
The following treatment and care does relate to the injuries caused by the motor accident:
• L3/4 and L4/5 decompression surgery proposed by Dr Ali Ghahreman.
The following treatment and care is not reasonable and necessary in the circumstances:
• L3/4 and L4/5 decompression surgery proposed by Dr Ali Ghahreman
REASONABLE AND NECESSARY IN THE CIRCUMSTANCES
The claimant is required to establish that the treatment and care is both “reasonable and necessary”. This test differs from the worker’s compensation legislation which requires a worker to establish that the treatment and care is “reasonably necessary”. There is a stricter requirement under the Act because there is no moderation of the requirement that the treatment and care is “necessary”.
When discussing the meaning of “reasonably necessary” under s 60 of the Workers Compensation Act1987 in Clampett v WorkCover Authority of NSW,[7] Grove J stated:[8]
“22. I return to the expression ‘reasonably necessary’ in s 60. Dictionaries stipulate that ‘necessary’ as relevant definition as ‘indispensable, requisite, needful, that cannot be done without’ – (shorter Oxford English Dictionary, 3rd Edition) and ‘that cannot be dispensed with’ – Macquarie.
23. The essential issue is what effect flows from conditioning such qualities as ‘reasonably’. The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word ‘necessary’ if it stood alone. In order to contemplate such moderation, it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker’s home, having regard to the nature of the worker’s incapacity, is reasonably necessary. In contemplation of what may be ‘reasonably necessary’, there is these statutory obligations specifically to have regard to the nature of the worker’s incapacity. It provides emphasis towards moderating the meaning of ‘necessary’ in this context.”
[7] [2003] NSWCA 52.
[8] Clampett at (22) – (23), Meagher and Santow JJA agreeing.
Similar observations have been made subsequently by the Court of Appeal on the meaning of “reasonably necessary” under other legislation.[9]
[9] See ING Bank (Australia) Limited v O’Shea [2010] NSWCA 71 at (48); Moorebank Recyclers Pty Limited v Tanlane Pty Limited [2012] NSWCA 445 at (113).
Factors relevant to, but not determinative of, the criteria of reasonableness in the context of the worker’s compensation legislation are well-settled.[10] They include:
(a) the appropriateness of particular treatments;
(b) the availability of alternative treatments;
(c) the costs of the treatment;
(d) the actual or potential effectiveness of the treatment, and
(e) the acceptance by medical experts of the treatment as being appropriate or likely to be effective.
[10] See Diab v NRMA Limited [2014] NSWWCCPD 2 at (88) (Diab).
Whilst the observations in Diab were directed to the test of “reasonably necessary” in the worker’s compensation legislation, we adopt it in so far as they have relevance, although not determinative, of the stricter test of “reasonable and necessary”.
The words “in the circumstances” in the context of whether the treatment is “reasonable and necessary” must refer to the particular circumstances of the claimant. This is because Schedule 2 of the Act refers to treatment “provided or to be provided to the claimant”.
The test of “reasonable and necessary in the circumstances” does not direct attention to the relationship between the accident and the treatment. That issue arises from consideration of whether treatment “relates to the injury caused by the accident”.
FINDINGS
The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[11]
[11] Section 7.26(6) of the Act
The Panel is not required to choose between competing medical opinions and is required to form its own opinion.[12]
[12] Allianz Australia Group Limited v Keen [2021] NSWCA 287 and Insurance Australia Group Limited v Marsh [2021] NSWCA 31
The Panel finds, as a matter of medical determination, and as a matter of non-medical factual determination, that the proposed lumbar decompression surgery is related to the subject accident.
The Panel has explained the bases for its findings. These are different to those of the previous Review Panel, and of Medical Assessor Home, with whom the Panel members respectfully disagree.
CONCLUSION
For the above reasons, the Panel concludes that the Certificate dated 20 September 2024 should be revoked. The new Certificates appears at the commencement of these reasons.
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