Aleksic v QBE Insurance (Australia) Limited

[2022] NSWPICMP 416

DETERMINATION OF REVIEW PANEL
CITATION:	Aleksic v QBE Insurance (Australia) Limited [2022] NSWPICMP 416
CLAIMANT:	Katica Aleksic
INSURER:	QBE Insurance (Australia) Ltd
REVIEW Panel
PRINCIPAL MEMBER:	John Harris
MEDICAL ASSESSOR:	Dr Drew Dixon
MEDICAL ASSESSOR:	Dr Shane Moloney
DATE OF DECISION:	21 October 2022
CATCHWORDS:	MOTOR ACCIDENTS – The claimant suffered an injury on 24 February 2020 when a kangaroo collided with the claimant’s vehicle; this was a medical dispute about whether the claimant suffered a non-minor injury within the meaning of the Motor Accident Injuries Act 2017 in the motor accident; claimant bore the onus of proof in establishing that the injuries were not a minor injury; Briggs v IAG Ltd (No 2) referred to; the Panel concluded that the claimant suffered a minor injury; there was no radiculopathy in either the upper or lower limbs as defined by the Motor Accident Guidelines (Guidelines); the right knee complaint was not radiculopathy and represented longstanding pathology associated with prior knee replacement; the reference to hand numbness and upper arm pain did not satisfy the meaning of radiculopathy in clause 5.8 of the Guidelines as it did not describe symptoms in a specific dermatome; the pathology in the cervical spine showed longstanding degenerative changes; it was unlikely that the motor accident caused injury to the nerves or partial tearing of the tendons, ligaments, menisci or cartilage; original assessment confirmed; findings made that claimant sustained a minor injury to the cervical and lumbar spines; Held – Medical Assessment Certificate confirmed.
DETERMINATIONS MADE:	The Review Panel confirms the certificate dated 6 April 2022.

REASONS

BACKGROUND

1. Ms Katica Aleksic (the claimant) suffered injury in a motor accident on
   24 February 2020 when a kangaroo collided with the claimant’s vehicle (the motor accident).

2. The claimant also suffered injury in a motor vehicle accident on 1 February 2020 (the earlier motor accident) when a vehicle collided with passenger side of the claimant’s vehicle.

3. The Review Panel has been constituted to determine the medical dispute of minor injury for both the earlier motor accident and the motor accident.

4. QBE Insurance (Australia) Ltd (QBE) is the insurer liable to pay Ms Aleksic any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the motor accident. GIO is the insurer of the other vehicle liable for the earlier motor accident.

5. The issue presently in dispute is whether Ms Aleksic’s injury is classified as a “minor injury” within the meaning of the MAI Act. Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is a minor injury for the purposes of the Act”.

6. A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[1] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.

   [1] Section 7.20 of the MAI Act.

7. The dispute was referred to Medical Assessor Herald who issued a medical assessment certificate dated 6 April 2022. Medical Assessor Herald concluded that
   Ms Aleksic sustained soft tissue injuries to the lumbar and cervical spine resulting from the motor accident which are a minor injury for the purposes of the MAI Act.

8. The Medical Assessor also issued a medical assessment certificate for the earlier motor accident when he concluded that the claimant sustained soft tissue injuries to the cervical and lumbar spine which were also minor injuries.

9. Whether a person has only suffered minor injuries as a result of a motor vehicle accident affects the entitlement to both statutory benefits and damages. 

10. Statutory benefits by way of loss of earnings and treatment and care expenses cease after 26 weeks if “the person’s only injuries resulting from the motor accident were minor injuries”[2]. An injured person otherwise cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were minor injuries”.[3]

    [2] Sections 3.11 and 3.28 of the MAI Act.

    [3] Section 4.4 of the MAI Act.

THE REVIEW

1. The application for referral of the medical assessment to a review panel was made by Ms Aleksic within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.

2. The President’s delegate referred the medical assessment to the Review Panel (the Panel) as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[4]

   [4] Section 7.26(5) of the MAI Act.

3. Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after
   1 March 2021, the new review provisions apply.

4. The review provisions provide[5] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (the Commission).

   [5] Section 7.26(5A) of the MAI Act.

5. Part 5 of 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.[6]

   [6] Section 41(2) of the PIC Act.

6. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (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.[7]

   [7] Rule 128 of the PIC Rules.

7. The review of the medical assessment is by way of new assessment of all the matters with which the medical assessment is concerned.[8] 

   [8] Section 7.26(6) of the MAI Act.

8. The Panel was constituted to determine the issue of minor injury and issued an initial direction to the parties requiring the provision of respective bundles of documents to be considered. The parties were advised that the Panel was determining the issue of minor injury for the motor accident and the earlier motor accident and that the insurers were to serve their bundles on each other.

9. There was no objection by the insurers to this direction

STATUTORY PROVISIONS

1. A minor injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “minor psychological or psychiatric injury”. Section 1.6(2) of the 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.”

2. Section 1.6 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 Regulations) further defines minor injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder.

3. Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a minor injury for the purposes of the Act. Version 8 of the Guidelines commenced on 29 October 2021 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a minor injury, the Guidelines relevantly provide:

   “5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a minor psychological or psychiatric injury caused by the motor accident.
   5.4 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.”

4. Clause 5.7 to 5.9 of the Guidelines relate to whether an injury to a spinal nerve root in the context of neurological symptoms is classified as a minor injury. An injury resulting in radiculopathy will not be classified as a minor injury.

5. Clause 5.7 of the Guidelines 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.”

6. Radiculopathy is defined in cl 5.8 of the Guidelines as follows:

   “Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.

   (a)loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)

   (b)positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)

   (c)muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)

   (d)muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution

   (e)reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”

7. Neurological symptoms that do not meet the assessment criteria for radiculopathy means that the injury will be assessed as a minor injury.[9]

   [9] Clause 5.9 of the Guidelines.

8. Sections 5D and 5E of the Civil Liability Act 2002 apply to the Act[10].

   [10] See s 3B(2) of the Civil Liability Act 2002.

ASSESSMENT UNDER REVIEW

1. The Medical Assessor concluded that Ms Aleksic suffered soft tissue injuries to the cervical and lumbar spine which were classified as minor injuries within the meaning of the MAI Act.

SUBMISSIONS

Claimant’s submissions dated 25 February 2021[11]

[11] Claimant’s bundle, p 74.

1. The claimant referred to the MRI scan of the cervical spine dated 23 June 2020 and submitted that “a traumatic disc herniation cannot be excluded” which involved a “part of the disc pushed into the spinal canal through a tear or rupture of the annulus and therefore a non-minor injury”.[12]

   [12] Claimant’s bundle, p 75.

2. The clinical notes recording pain in the right shoulder (17 March 2020) and numbness extending into the right hand (18 June 2020) is “evidence of radiculopathy in relation to the injury to the cervical spine”.

3. The cervical spine was injured in the earlier motor accident and aggravated by the motor accident.

4. The claimant relied on the corrected note of Dr Le dated 28 August 2020 regarding the entry of 5 February 2020 which referred to back pain. The physiotherapist notes of
   7 May 2020 referred to neck, back, right arm and leg pain since the earlier motor accident. The physiotherapist noted that pain got worse since the motor accident.

5. The claimant submitted that she should have the opportunity to be clinically examined to determine whether the right knee symptoms are signs of radiculopathy.

Claimant’s submissions dated 3 May 2022[13]

[13] Claimant’s bundle, p 81.

1. These submissions were filed seeking leave to review both certificates issued by Medical Assessor Herald.

2. The claimant submitted that the Medical Assessor found “radiculopathic symptoms” but did not describe these or explain how they weren’t radiculopathy.  Reference was made to the Medical Assessor’s findings of radiating pain and the clinical notes of the general practitioner of right arm pain associated with numbness.

3. The claimant also submitted that there was no evidence that rotation was assessed nor whether the assessment included an examination with respect to atrophy, muscle guarding, spasm and non-verifiable radiculopathic complaint. Similar complaints were made for the assessment undertaken of the lumbar spine.

QBE’s submissions dated 23 March 2021[14]

[14] QBE bundle, page 11.

1. After referring to the medical evidence in some detail, QBE submitted that “there is no evidence that the claimant sustained an acute injury in the second accident at all”.[15]

   [15] QBE bundle, p 14.

2. The MRI scan of the cervical spine showed degenerative changes only and likely pre-dated the motor accident. The clinical note of the general practitioner dated
   2 June 2020 reported pain not in the neck and was likely muscular.

3. In relation to the lumbar spine, QBE submitted that there was “no objective medical evidence to substantiate that any injury to the lumbar spine was sustained at all” or that any aggravation was soft tissue only. In any event, there is no evidence of two signs of radiculopathy as required by the MAI Act.

4. QBE submitted that there was no injury to the right leg and may have experienced signs of radiculopathy.

5. In relation to the right shoulder, it was noted that this was first reported on
   17 March 2020. On 18 June 2020 the general practitioner recorded that there was a past history of shoulder injury with potential rotator cuff tear without specifying which shoulder.

6. QBE otherwise submitted that any symptoms relate to pre-existing degenerative conditions. Further, any injury in the motor accident was soft tissue only. Similar submissions applied to the left shoulder.

QBE’s submissions dated 31 May 2022[16]

[16] QBE bundle, p 269.

1. QBE submitted that the Medical Assessor disclosed his reasoning process. It submitted:[17]

   “Whilst the Assessor may have identified symptoms in his examination which may be described as “radiculopathic”, those symptoms did not constitute a diagnosis of radiculopathy as defined by the Act.”

   [17] QBE bundle, p 271.

2. QBE noted that the Medical Assessor recorded a normal neurological examination of both the cervical and lumbar spine.

MATERIAL BEFORE THE REVIEW PANEL

Pre-accident medical records

1. The pre-accident clinical notes do not refer to low back or cervical spine problems. Within the notes are references to various health issues including a total knee replacement.

Medical evidence

1. The claimant attended her general practitioner on 5 February 2020 who noted:[18]

   “MVA, hit from the side

   Car driven off

   Did not call police

   Car in finance, she may not get any money to buy other car

   Cannot sleep

   Will need support letter from us”

   [18] GIO bundle, p 421.

2. The certificate of capacity dated 14 February 2020 refers to referral to an osteopath for “muscular pain”.[19]

   [19] GIO bundle, p 30. A subsequent note stated that the osteopath had “close” (GIO bundle, p 434).

3. A referral to Mrs Hood dated 18 February 2020 was for “management of muscular pain after a recent motor vehicle accident”.[20] The clinical note of that day refers to “referral to psychologist and osteopath”.[21]

   [20] GIO bundle, p 132.

   [21] GIO bundle, p 431.

4. The claim form for the earlier motor accident dated 26 February 2020 refers to injuries to “neck, both shoulders and back, shock and anxiety and depression”.[22]

   [22] GIO bundle, p 35.

5. The clinical note of 24 February 2020 referred to the motor accident and noted “back pain worse” with mild tenderness in the paraspinal region and midline lumbar spine.[23]

   [23] GIO bundle, p 432.

6. The claim form for the motor accident dated 11 March 2020[24] noted the motor accident and alleged that Ms Aleksic suffered an injury to the back and post-traumatic stress.

   [24] QBE bundle, p 20.

7. On 17 March 2020 the general practitioner noted “R shoulder pain after injury”.[25]

   [25] GIO bundle, p 432.

8. By letter dated 7 May 2020 the general practitioner referred the claimant to physiotherapy for “management of muscular pain”.[26]

   [26] GIO bundle, p 135.

9. A physiotherapist report dated 9 May 2020 refers to the earlier motor accident and treatment commencing on 7 May 2020 for multiple soft tissue injuries to the neck, low back, right leg and right arm.[27]  The report noted that “everything became wore physically and psychologically” following the motor accident. The physiotherapist opined that Ms Aleksic suffered from Whiplash Associated Disorder Grade 2.

   [27] GIO bundle, p 38.

10. The Allied Health Recovery Request dated 14 May 2020 referred to muscular pain in the low back, neck, right leg and right arm[28] from the earlier motor accident which was “worsened” by the motor accident.

    [28] GIO bundle, p 39.

11. Allied Health Recovery Request dated 20 June 2020 repeats the wording in the earlier request.[29]

    [29] GIO bundle, p 60.

12. A further report from the general practitioner dated 4 August 2020 addressed to QBE noted first consultation after the motor accident (presumably involving QBE) was
    10 March 2020 with presentation of shoulder pain on 17 March 2020. The doctor stated:[30]

    “Katica reported that on the 24 of February 2020 while she was driving on the road a kangaroo jumped out from the side of the road and hit her car on the driver side and then the front of the car. Katica therefore had to break suddenly and strongly. She was wearing a seatbelt at the time. Katica was in shock at first, anxious and scared of driving for the next few hours. Half a day later she started felling her back pain, getting worse, her neck and shoulder started aching and later she felt numbness of her right hand.”

    [30] Claimant’s bundle, p 10.

13. The doctor noted recent worsening neck pain radiating to the right arm associated with numbness. The claimant was referred for an MRI scan in light of those symptoms.

Radiology

1. An X-ray of the right knee dated 12 June 2020 showed no joint effusion.[31]

   [31] Claimant’s bundle, p 6.

2. An MRI scan of the cervical spine dated 23 June 2020 showed significant spondylotic change including:[32]

   (a)    C3/4 right paracentral disc protrusion distorting the right side of the thecal sac resulting in disc osteophyte encroachment on the right exit foramen and encroaching on the exiting C4 nerve root;

   (b)    C4/5 broad based disc bulge with a left paracentral component, and

   (c)    C5/6 right paracentral disc bulge distorting the right side of the thecal sac and encroaching on the right exit foramen.

   [32] GIO bundle, p 518.

RE-EXAMINATION

1. The Panel determined that Ms Aleksic be re-examined by Medical Assessor Moloney which occurred on 12 October 2022.

2. The re-examination report is as follows:

   “Motor vehicle accident 1 on 1 February 2022.

   Motor vehicle accident 2 on 24 February 2022.
   Mrs Aleksic attended the medical suites of PIC on 12 October 2022 and was unaccompanied. She states that her son drove her to the rooms.

   Pre-accident history
   Mrs Aleksic migrated from Serbia with her husband in 1970. She is on the age pension and lives in a housing commission unit. She had bilateral knee replacements with the left knee in August 2019 and the right knee in November 2019. She states that the right knee took three months to recover from the surgery and hence had been prescribed Endone in December 2019 for this pain. There was a history of breast cancer in 2016 which was treated by several operations and chemotherapy. At present she has been told she is cancer free. There is also a six-year history of diabetes which is treated with oral medications and long-term thyroid disease, hypertension and hypercholesterolaemia. The husband died in 2007.
   Approximately 30 years ago when she was working at Alcatel, cervical spine problems occurred and after investigations was told that her discs were worn out and to change her occupation where she would be standing rather than sitting long-term.

   History of accidents and subsequent treatment
   The first accident occurred on 1 February 2020. Mrs Aleksic was the driver of her car when hit on the passenger side and at that time was accompanied by her 10-year-old grandson. She was wearing a seatbelt at the time and airbags were not deployed. She stated that she was very shocked at the time and was more worried about the welfare of her grandson. She was able to get out of the car and her son came and collected them from the accident scene.
   The day after the accident, there was increased pain in the neck, low back, right shoulder and right knee. She consulted her GP who referred her to a physiotherapist who treated her 20 times, and a psychologist treated her six times.
   The second accident occurred on 24 February 2022. At that time, she was the driver of her friend’s car, a Suzuki, when kangaroos appeared on the road. The first kangaroo was avoided but the second kangaroo collided with the front and driver’s side of the car she was driving. The car was declared a write-off. She was wearing a seatbelt at the time, but airbags were not deployed. The police attended the scene and actually shot the injured Kangaroo. A passing driver took her home. After this accident, the pain became worse in the same areas, and she consulted her GP.
   Mrs Aleksic is unsure when the right shoulder pain started but states it is definitely worse in the last year or so. Low back pain also increased and radiated into the right buttock region which was investigated with x-rays and an ultrasound. There was a follow-up with her treating orthopaedic surgeon,
   Dr Horsley who had operated on both knees. He did an x-ray of both knees and told her that there was no problem with the replacements. There was also a referral to Dr Darwish, a neurosurgeon, he apparently told her that there was no need for any surgical procedures.

   Current symptoms
   There is persistent low back pain which radiates into the right buttock region and occasionally is associated with cramps in the right anterior thigh. There is pain around the right knee and occasionally she gets numbness in all of the toes. The neck feels stiff and is painful with the radiation of pain into the right arm and in particular the right upper arm. He also gets an occasional spasm in the right thumb. The right shoulder can be painful which prevents her sleeping on the right shoulder.
   Prior to the accident, she states that she used to love gardening, but back pain prevents this after five minutes. When walking she is dependent on a walking stick and uses the shopping trolley when going out.
   There is also the development of pain and numbness in the right thumb and index finger particularly in the morning. Her GP apparently has suggested she has carpal tunnel syndrome on the right side worse than on the left.
   All of these areas of pain are constant but are getting worse in the past couple of years.

   Treatment
   Present medication is Lexapro One-A-Day, Voltaren when needed, Endone 5 mg about one per week, Panadol 2 to 3 times a day if needed and medication for her hypercholesterolaemia and hypertension. She also takes a medication to help peripheral circulation. She consults her GP when needed and sees a specialist for control of the diabetes. No manual therapy is being undertaken at present. An ultrasound of the right shoulder has been booked for the 25 October 2022.

   Clinical examination
   Mrs Aleksic walked into my room with an antalgic gait, relying on a walking stick in the right hand. She sat somewhat depressed during the interview. She states that she is right-handed and was measured at 171 cm and 125 kg

   Cervical spine
   On testing range of movement, flexion/extension, side bending, and rotation were all 70% of expected range with no asymmetry. On palpation there was tenderness over all the cervical and thoracic spines as well as tenderness in the paravertebral muscles more so on the right and the right trapezius muscle. No guarding or spasm was noted in the cervical musculature.
   On neurological examination of the upper limbs, reflexes were equal bilaterally with normal power and no sensory changes were noted. There is slight lymphoedema of the left upper arm as a consequence of the breast cancer surgery to the left side. No muscle wasting was apparent with the circumference of the upper arms 36 cm bilaterally (10 cm above the olecranon process) and in the upper forearms 32 cm bilaterally (5 cm below the electron process).

   Shoulders
   On inspection of the shoulders no muscle wasting was noted and on palpation there was a global tenderness around the entire right shoulder including the scapula and upper arm. There was no referral of pain from the cervical spine with movement of either the neck or shoulder. Passive movement was possible to 140° of flexion and abduction of the right shoulder and active movement was measured using a goniometer and repeated three times. Mrs Aleksic stated that movement was limited by severe pain. I discussed it with her that the previous assessor, seven months ago recorded a much better range of movement of the shoulders and she states that the pain has become much worse recently.

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	90°	100°/120°
Extension	40°	40°
Adduction	30°	40°
Abduction	100°	120°/ 100
Internal Rotation	70°	70°
External Rotation	80°	80°

Lumbar spine
Mrs Aleksic was dependent on walking stick in the right hand and without that had an antalgic gait. She was unable to stand on heels and toes or squat.
When testing range of movement flexion/extension were 60% of expected range and side bending was to the top margin of both knees with no asymmetry. Straight leg raise was 60° bilaterally and limited by hamstring tightness and low back pain. On palpation of the lumbar musculature no guarding or spasm was noted but there was tenderness in the superior insertion of the right hamstring muscle.
There was a full range of movement of both knees (Flexion 120° and extension 0° bilaterally) and tenderness on palpation of the medial side of the right knee but no crepitus was noted with passive movement. No ligament laxity was noted in either knee.
On neurological examination of the lower limbs, reflexes were equal bilaterally with normal power and no sensory changes were noted. No muscle wasting was apparent with the circumference of the lower thighs 58 cm bilaterally (10 cm above the superior patella pole) and at the maximum circumference of the calves 44 cm bilaterally.
An ultrasound of the right hip was provided dated 1 December 2021. This reported a chronic appearing high-grade partial thickness tear involving the right hamstring origin which is filled with fluid in measures 80 x 6 x 33 mm with no evidence of ischial bursitis.
In summary. There are no signs of radiculopathy in the upper or lower limbs.”   

FINDINGS

1. The review is a new assessment of all matters with which the medical assessment is concerned. The original medical assessment related to the injuries sustained in the motor accident were minor or non-minor as defined under the MAI Act.

2. The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion:  Insurance Australia Group Ltd v Keen[33] and Insurance Australia Ltd v Marsh.[34] 

   [33] [2021] NSWCA 287 at [40], [41] and [45].

   [34] [2022] NSWCA 31 at [11], [21] and [64].

3. The Panel adopts the reasoning in David v Allianz Australia Ltd[35] that radiculopathy can be present at any time to establish that the injury is not minor for the purposes of the MAI Act.

   [35] [2021] NSWPICMP 227 at [84] – [104].

4. We adopt the reasoning in Lynch v AAI Ltd[36] that the claimant bears the onus of proof in establishing that any injury is not a minor injury for the purposes of the MAI Act. The conclusion on onus is consistent with the observations of Wright J in Briggs v IAG Ltd (No 2)[37] when the Court noted that a causal finding on whether an injury was non-minor could be open on the evidence when the expert opinion was that it was possible. His Honour observed:

   “The second review panel did not address the question of whether on the balance of probabilities the motor vehicle accident caused the annular tear even though there might be no scientific certainty. Furthermore, the second review panel’s reasoning did not reflect the approach to determining causation in cl 6.6 and 6.7 of the Guidelines, which in my view is consistent with the legal principles I have outlined.”

   [36] [2022] NSWPICMP 6 at [44] – [62].

   [37] [2022] NSWSC 372 at [73].

5. The Panel adopts the examination report of Medical Assessor Moloney and adds the following reasons.

6. The claimant’s submission that the Medical Assessor was required to assess for matters such as muscle guarding, spasm and non-verifiable radiculopathic complaint is misguided. It confuses issues of whether the claimant would be assessed as DRE II for either the cervical and/or lumbar spine with the issue of whether the claimant is assessed as having a minor or non-minor injury. The Medical Assessor is not assessing permanent impairment. The matters raised by the claimant are not relevant to assessing whether the claimant has or had radiculopathy which is based upon the specific matters identified in cl 5.8 of the Guidelines.

Low back injury

1. We accept that the low back was injured in the previous motor accident and aggravated by the motor accident. However, we do not accept that there is any basis to conclude that there were pathological changes caused by the motor accident capable of constituting a non-minor injury.

2. There were no recorded signs of radiculopathy from the lumbar spine as defined by
   cl 5.8. Further, Medical Assessor Moloney did not identify lumbar spine radiculopathy in his recent examination.

3. The claimant otherwise speculated that the right knee symptoms was possible evidence of radiculopathy. The claimant was assessed by Medical Assessor Moloney who determined that these symptoms were not radiculopathy. The symptoms are more likely due to the claimant’s pre-existing knee condition.

Right knee

1. The right leg was mentioned by the physiotherapist without any diagnosis of injury consistent with the right knee X-ray dated 12 June 2020 showing no joint effusion.

2. The claimant has a history of bilateral knee problems resulting in knee replacements.

3. The current bilateral knee condition reflects longstanding pathology unrelated to the motor accident. Further, there is no basis to suggest a mechanism of injury to the right knee resulting from the motor accident.

4. We do not accept that the right knee was injured in the motor accident.

Cervical spine injury

1. The MRI scan of the cervical spine shows longstanding degenerative changes. This is clear from the existence of osteophyte encroachment at C3/4 which must have arisen over a number of years. The existence of disc protrusions over three levels in the cervical spine is also highly suggestive of longstanding degenerative disease rather than any particular disc protrusion being caused by either of the motor accidents.

2. The claimant’s submission that “a traumatic disc herniation cannot be excluded” reverses the onus of proof.

3. The nature of the earlier motor accident is likely to have aggravated the claimant’s degenerative cervical spine by rendering her condition symptomatic and been further aggravated by the motor accident.

4. The aggravation of the disc was likely due to swelling around the disc exacerbating the impingement of the exit foramen and encroaching on the exiting nerve roots. That process may explain the radicular type symptoms that were recorded by the clinicians including radiating pain into the shoulder and hand numbness.

5. For these reasons we do not accept that the changes on the MRI scan were caused by the motor accident and described as “injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage”.

6. We accept that the claimant had previously complained of non-verifiable radicular symptoms such as radiating pain into the shoulder and arm and hand numbness. However, those descriptions are not “reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution”.

7. The definition of radiculopathy in cl 5.8 requires specific findings.  A general comment of “hand numbness” could relate to the C6, C7 to C8 dermatome as well as other pathological explanations (such as carpal tunnel). That is why a clinical reference of hand numbness does not establish an objective sign of radiculopathy as it is non-specific. Similarly, a reference to radiating pain into the shoulder and arm may relate to any of the dermatomes from C4 to C7.  Again, simply referring to radiating pain into the arm does not satisfy the definition in cl 5.8.

8. In the absence of clear records, we cannot be satisfied that the claimed symptoms represent sensory loss in a specific dermatome. Therefore, a doctor may refer to the complaints as “non-verifiable” because the symptoms are not described by reference to a specific dermatome which will follow a particular nerve pathway.

9. Medical Assessor Moloney specifically examined for and did not find radiculopathy.

10. For these reasons we conclude that Ms Aleksic has not satisfied, at any time, two clinical signs of radiculopathy pursuant to cl 5.8 of the Guidelines.

Right shoulder/arm

1. The examination by Medical Assessor Moloney noted there was a global tenderness around the entire right shoulder. Right shoulder symptoms were first referenced on
   17 March 2021 which may have been radicular in nature. That appears to be the basis of the claimant’s submission.

2. There is no scan evidence showing shoulder pathology that could be defined as “injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage”.

3. For these brief reasons, the Panel is not satisfied that either motor accident caused any shoulder pathology capable of being defined as a non-minor injury.

CONCLUSION

1. For these reasons the Panel concludes that the certificate issued by Medical Assessor Herald is confirmed.