Allianz Australia Insurance Limited v Ab Jalil

DETERMINATION OF REVIEW PANEL
CITATION:	Allianz Australia Insurance Limited v Ab Jalil [2023] NSWPICMP 560
CLAIMANT:	Abwakil Ab Jalil
INSURER:	Allianz Australia Insurance Limited
REVIEW PANEL
MEMBER:	Belinda Cassidy
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	Lesley Barnsley
DATE OF DECISION:	8 November 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; threshold injury dispute and insurer’s review of assessment under section 7.26; Medical Assessor (MA) Herald assessed cervical spine injury after January 2022 accident as non-minor (now non-threshold) due to CT scan finding of April 2022 showing “chronic” 25% compression fracture and no evidence of previous fracture or neck complaints; insurer argued “chronic” indicated not acute and therefore not caused by the accident and that report from GP said no history of neck problems, but GP had only been treating claimant since May 2022; Panel called for pre-accident GP notes, specialist reports and access to digital images; no specialist reports or digital images provided; Held – GP notes confirmed GP had been treating claimant since May 2012 and there were no previous neck complaints; GP records contained two additional scans, MRI of December 2022 and CT scan of October 2023 both of which recorded no loss of vertebral height or fracture; Panel found radiology report of compression fracture in April 2022 was erroneous and was not satisfied there was any compression fracture; on examination one of the five signs of radiculopathy was present but not two or more; review of medical records found no signs of radiculopathy reported at any time since the accident; claimant’s cervical spine injury therefore is a threshold injury; certificate of MA Herald revoked.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate of Medical Assessor Herald dated 28 February 2023. 2. Certifies that the claimant’s cervical spine injury is a threshold injury for the purposes of the Act.

STATEMENT OF REASONS

INTRODUCTION

Abwakil Ab Jalil[1] was involved in a motor accident on 12 January 2022. The claimant was driving straight along Sunnyholt Road “on a very rainy night” when a car turned in front of him at an intersection and a collision occurred between the two vehicles.
[1] These proceedings were commenced in the name Abwakil Jalil, but there are several iterations of the claimant’s name including Abwakil Ab Jalil (claim form), Ab Wakil Ab Jalil (police report) and Ab Wakil Abjalil (hospital and medical centre). The claimant’s solicitor was asked to confirm the claimant’s preferred spelling and they advised that according to their records he is known as Wakil Jalil. The Panel has adopted the spelling from the claim form which Mr Ab Jalil has signed as true and correct.
Mr Ab Jalil says he injured his chest, back and neck in the accident. He made a claim for benefits with Allianz, the third-party insurer of the vehicle he says caused his accident.
A medical dispute about whether any of the claimant’s injuries were “minor” injuries arose in connection with that claim and that dispute was referred to the Personal Injury Commission (the Commission) for assessment.
Medical Assessor Herald determined on 28 February 2023 that Mr Ab Jalil sustained a C5 wedge fracture in the accident and that this was not a “minor” injury.
The insurer has lodged an application with the Commission seeking a review of the Medical Assessor’s decision. On 8 May 2023, a delegate of the President determined there was reasonable cause to suspect a material error in the assessment and has allowed the Review and on 10 May 2023 the President has convened this Panel to conduct the Review.

LEGISLATIVE FRAMEWORK

Jurisdiction

Mr Ab Jalil’s claim is governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act). This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensatory damages (under Part 4) for persons injured in motor accidents in New South Wales.
The statutory benefits available under the MAI Act are not unlimited. For example, under

ss 3.11(1) and 3.28(1) of the Act, statutory benefits cease at a point in time after the motor accident if the only injuries sustained by the injured person are “minor” or “threshold” injuries. The issue of “minor” or “threshold” injury is also relevant to a common law damages claim. While a claim can be made regardless of the severity of the injury, no damages are recoverable if the claimant’s only injuries are “minor” or “threshold” injuries.[2]
[2] Section 4.4 of the MAI Act.
The statutory benefits scheme was amended by legislation in 2022. The term “threshold” injury was introduced to replace the previous term “minor” injury and this amendment applies to all claims regardless of the date of the accident. The availability of statutory benefits was amended to allow benefits for up to 52 weeks after the accident (previously 26 weeks) but this amendment only applies to accidents occurring on or after 1 April 2023 and therefore not to Mr Ab Jalil’s claim. While the dispute originally determined by Medical Assessor Herald was termed a “minor” injury dispute, the Panel will adopt the new terminology for the remainder of these reasons.

Threshold injury

A threshold injury is defined in s 1.6(1) of the MAI Act as a “soft tissue injury”. Section 1.6(2) of the MAI Act defines a soft tissue injury to mean:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6(4) provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulation) says that “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” is a threshold injury.
Section 1.6(5) says that the Motor Accident Guidelines (the Guidelines) may provide for the assessment of whether or not an injury is a threshold injury. Relevantly to the matters in issue in this claim, cls 5.7 to 5.9 of the Guidelines are headed “soft tissue assessment – injury to a spinal nerve root” and cl 5.7 provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
Clause 5.8 then defines radiculopathy and adopts the method of assessment provided for in the whole person impairment chapter of Part 6 of the Guidelines.[3] Clause 5.9 then states:
“Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury”.
[3] Chapter 6 of the Guidelines.
In summary:
(a) if a person injured in a car accident sustains soft tissue injuries only then, unless one of those soft tissue injuries falls within the exclusion contained in s 1.6(2) (highlighted in italics in paragraph 10 above), the injured person’s statutory benefits cease in accordance with ss 3.11 and 3.28 of the MAI Act, and
(b) if the person injured in the car accident sustains a spinal nerve injury this is a threshold injury unless the particular nerve injury manifests in signs of radiculopathy in accordance with cl 4 of the MAI Regulation.

Dispute Resolution

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

ASSESSMENT UNDER REVIEW

Medical Assessor Herald examined the claimant on 30 November 2022 and issued a certificate on 28 February 2023. He says at [2] that the only injury he was asked to assess was a cervical spine injury.
Medical Assessor Herald records at [8] that the claimant is a painter who took six months off work due to neck pain but has now returned to part time work. Medical Assessor Herald has a history at [9] of the other vehicle traveling at 70 kmph and turning right in front of him in heavy rain. Although the car was written off, the claimant did not go to hospital, was driven home and saw his general practitioner (GP) the next day.
Medical Assessor Herald takes a history at [10] of severe neck and back pain developing with no radiculopathy but radiating symptoms from his neck to his shoulders. The Medical Assessor refers to the radiology and notes that the claimant had not been referred to a specialist.
Medical Assessor Herald records at [12] current symptoms of neck pain radiating to the shoulders but no neurological symptoms.
On examination [15] there was tenderness over the spine and paraspinal muscles and reduced cervical motion with spasm present. Mr Ab Jalil had a negative Spurling’s test (suggesting no nerve root problem) but loading of the cervical spine caused radiating pain into the shoulders. He had normal tone, power and reflexes.
Medical Assessor Herald notes at [18] the radiology with the diagnosis at [19] of a C5 25% wedge compression fracture “just fracture on a background of cervical spondylosis”.
Medical Assessor Herald says that such a fracture is a non-threshold injury as it is not a soft tissue injury. He says in respect of causation:
“As there is no evidence that he has sustained this fracture prior to the motor vehicle accident dated 12 January 2022 the causation of this fracture will have to be attributed to the motor vehicle accident which was thus identify the cervical spine injury as a non-minor injury.”

ISSUES FOR DETERMINATION

Insurer’s submissions

The insurer refers to the following errors:
(a)    a reference at page 2, paragraph 4 to a submission from Allianz that the claimant’s injuries are non-minor. The insurer says it has submitted the injuries were minor;
(b)    the reference to “just fracture” in the diagnosis section has no medical meaning and is not a medical diagnosis;
(c)    the Medical Assessor’s finding that because there was no evidence of a fracture before the accident, the fracture must be attributed to the accident:
(i)fails to address the dispute between the parties;
(ii)does not take into account the age-related pathology reported namely kyphoscoliosis and chronic wedge compression fracture, and
(iii)the insurer does not have to prove evidence the fracture was sustained before the accident when “the diagnosis of its very nature is pre-existing longstanding and chronic”;
(d)    the Medical Assessor had not addressed the fact that, according to a letter from Dr Suleiman to the insurer from August 2022,[6] the claimant had only been a patient of Dr Suleiman’s practice since May 2022 and therefore he cannot provide an opinion of the claimant’s pre-accident state, and
(e)    the Medical Assessor’s conclusion that the fracture was a C6 wedge fracture when it was a compression fracture.
[6] See paragraph 55 below.
The insurer relied on a document not available to Medical Assessor Herald namely a report from a biomechanical expert, Dr McIntosh.

Claimant’s submissions

The claimant submits:
(a)    the first error is a simple typographical error which could be corrected by the Medical Assessor;
(b)    the second error is again a typographical error, and the Medical Assessor could be requested to clarify the use of the term;
(c)    in respect of the third error (about causation), the Medical Assessor has explained that the GP stated there were no previous complaints of neck pain or neck injury and the Medical Assessor’s reasoning is clear;
(d)    the fourth error concerns the failure to refer to Dr Suleiman’s report of no previous complaints and says the Medical Assessor is not obliged to mention or address all the documents relied on by the parties, and
(e)    the fifth error is a typographical error which could be clarified without resort to a review.

Procedural matters

On 15 May 2023 the Panel issued directions to the parties requesting confirmation from the parties about the issues in dispute. The Panel also requested GP notes from before the accident, final submissions and a digital copy of the radiology or the means by which the Panel could access the digital imaging studies.
The Panel met on 4 August 2023 to discuss the proceedings and reported to the parties on

7 August 2023. The Panel noted:
(a)    the parties’ submissions referred only to the issue of the C5 compression fracture and asked for confirmation this was the only issue between the parties and in particular to confirm whether cervical radiculopathy was in issue;
(b)    the report of Dr Griffiths included references to documents the Panel did not have and directed the insurer to provide copies of those documents;
(c)    clarification and confirmation as to the names of the doctors who had treated the claimant after the accident;
(d)    confirmation of who was the claimant’s doctor before Dr Suleiman (in the light of his letter from August 2022 to NRMA), and
(e)    the Panel had requested the claimant provided it with an authority to enable the Panel to view digital imaging scans and studies of the claimant’s neck but the claimant had provided a very general authority for the production of documents (not specified) from the imaging firm to the claimant’s solicitor.
The Panel also directed the claimant to provide additional medical records and documents and queried what other radiological imaging studies had been done of the claimant’s cervical spine.
The claimant was advised of the re-examination date and requested to take with him the actual imaging studies so these could be viewed.
The insurer responded with a bundle of additional documents on 27 September 2023.
On 12 October 2023 the Panel received a bundle of documents from Rouse Hill medical centre (Dr Suleiman) in answer to a direction issued by the Commission at the request of the insurer.
On 2 November 2023 the insurer lodged an application to admit the records from Rouse Hill into evidence and provided the following submissions:
“The insurer refers to the Review Panel directions of 7 August 2023, paragraph 8 (d), (e) and (f) and says:
(d) MRI - see page 299/311 - the insurer submits there were no fractures.
(e) Dr Sulieman saw the claimant prior to the accident - see attached notes.
(f) Dr Sulieman has produced notes from prior to the accident - see attached notes.
Further, the insurer draws to the attention of the Review Panel, [to] a further CT dated 4 October 2023 (pg 99/311) in which Dr MacKinnon reported: Cervical vertebral body height is preserved. No acute fractures or suspicious osseous lesions.”
The claimant had not responded to the Panel’s report and directions document. Upon receipt of the insurer’s submissions above, the Panel caused a message to be relayed to the claimant on 6 November 2023 asking whether the claimant intended to respond. If so, the Panel indicated it would issue directions and a timetable for the lodgement of the submissions. No response was received.

REVIEW OF THE EVIDENCE

Claim form and claim documents

Mr Ab Jalil’s claim form was signed and dated 27 January 2022.[7] He says he was not taken to hospital and says he had no previous injuries or conditions. He said he was a painter and had been off work since the day of the accident.
[7] Page 5 of A1.
The insurer denied liability for ongoing statutory benefits[8] on the basis that the claimant’s injuries were threshold (soft tissue) injuries in particular a whiplash syndrome to his neck and lower back.
[8] The liability notice is dated 26 April 2022 and is at page 10 of A1.
The claimant sought an internal review of that decision alleging the claimant had a wedge fracture at C5 and degenerative cervical disc disease as a result of the accident. The insurer issued a decision affirming the original decision.[9]
[9] The application for internal review is dated 18 July 2022 and is at page 13, the acknowledgement is dated 20 July 2022 and is at page 17 and the internal review document itself is dated 8 August 2022 and is at page 17 of A1.
The police report is dated 25 January 2022 and refers to the accident occurring at about

1.15pm on a straight and level road which was wet and there was fog. The speed limit was 70 kmph. Vehicle one was said to be a Honda Civic driving at 15 kmph and it sustained a damaged bonnet. The claimant’s vehicle (vehicle two) was a Toyota Corolla being driven at 70 kmph and was said to have sustained total damage.
The police report notes that Mr Ab Jalil was driving straight into the intersection when the insured driver turned right in front of him.

Treating medical records and reports

GP records before the accident

Dr Sulieman’s statement that he had only been Mr Ab Jalil’s treating doctor since May 2022 appears incorrect. The claimant has been a patient of the practice since May 2012. The records indicate:[10]
[10] Only references to relevant or possibly relevant conditions have been included.
(a)    on 23 July 2012 the claimant attended with a throbbing headache, he was neurologically normal and had no neck stiffness;
(b)    on 17 October 2012 Mr Ab Jalil attended with low back pain for two days with no trauma and no radiation and no neurological deficits;
(c)    low back pain was the subject of complaints on 19 November 2012 this time with radiation to left thigh almost daily and said to be severe at times but there was no paraesthesia and no weakness;
(d)    on 23 November 2012 the claimant’s CT scan results were discussed, he had a L4/5 disc prolapse and had back pain but there were no neurological signs;
(e)    on 20 May 2014 the claimant attended complaining of right knee pain for six months, no trauma and severe pain when going up and down stairs;
(f)    right shoulder pain was the subject of an attendance on 4 September 2015. The pain had been present for two days after painting. There was no direct trauma, no neck pain and no abnormality in the neck on examination;
(g)    on 4 July 2016 Mr Ab Jalil attended with right shoulder pain on abduction, no neck pain, no numbness and weakness and no trauma. The examination records the neck was normal and the shoulder was tender;
(h)    Mr Ab Jalil attended on 31 January 2019 reporting “back pain for [a] few days.” The pain was mid lumbar towards the left with no history of trauma “does constant lifting of children and heavy stroller.” The claimant had physiotherapy for “acute on chronic left sided low back pain with intermittent radiation”;[11]
(i)    on 3 February 2019 the back pain had eased, however
(j)    on 14 February 2019 the claimant attended with lower back pain radiating to the right buttock. Dr Suleiman notes a history of L4/5 disc prolapse pain not improving.
[11] Page 242 of the Rouse Hill bundle.

Records after the accident

The claimant attended Dr Suleiman’s practice on 13 January 2022 the day after the accident complaining of pain in the neck, upper and lower back and front of his right chest. There was no numbness and no weakness complained of. On examination:
(a)    there was tenderness of the paravertebral muscles of cervical, thoracic and lumbar spine;
(b)    no midline tenderness;
(c)    normal range of motion in the cervical spine;
(d)    normal range of motion in the lumbar spine;
(e)    neurologically intact upper and lower limbs, and
(f)    tender in the seat belt area and normal range of motion in all joints.

Dr Sulieman completed the certificate of fitness and capacity dated 13 January 2022[12] diagnosing a whiplash injury of the cervical spine, seatbelt injury and sprain of the lumbar and thoracic spine. He referred the claimant for physiotherapy and massage.
[12] The four certificates commence at page 38 of A1. The insurer provides a further set commencing at page 5 of R1.
On 13 January 2022 a physiotherapist wrote to NRMA advising the claimant had neck and lower back pain which Mr Ab Jalil rated at 3-4 out of 10 and chest pain which was rated as 10 out of 10 and a request for physiotherapy was made.[13]
[13] Page 246 of the Rouse Hill bundle.
On 20 January 2022, Dr Sulieman saw the claimant again recording complaints of right chest wall pain at the site of the seat belt and an X-ray of the ribs was requested and Voltaren prescribed.
On 25 January 2022 the claimant attended for review of the X-rays (no rib fractures or pneumothorax). The claimant was reported to still have neck and upper back pain and seat belt pain with no radiation, weakness or paraesthesia. On 27 January 2022 the claimant was complaining of neck and chest pain and similar complaints were made on 9 February 2022.
On 8 February 2022, the physiotherapist wrote again to NRMA[14] reporting pain in the neck, lower back and chest pain rated at 2-3 out of 10.
[14] Page 252 of the Rouse Hill bundle.
For the next two weeks the claimant was attending daily for wound care having burnt himself with hot oil. Mr Ab Jalil next attends for his accident-related complaints on 24 February 2022 referring to his neck only (which was slightly better) and he was reportedly having physiotherapy twice a week.
On 22 February 2022, the physiotherapist[15] noted the pain rating was 5-6 out of 10 for the neck, 3-5 out of 10 for the back and 6-7 out of 10 for the chest.
[15] Page 254 of the Rouse Hill bundle.
The second certificate of fitness and capacity dated 9 March 2022 refers to a diagnosis of whiplash injury to the cervical spine and a seat belt injury only, and again refers the claimant for physiotherapy and massage. On 15 March 2022 the claimant reported still having neck pain but with no radiation, weakness or headaches. His neck was normal in alignment, there was normal range of motion in the neck and shoulders and there was only “mild tenderness” in the paravertebral muscles of the upper thoracic spine.
A third certificate of fitness and capacity dated 5 April 2022 refers to a diagnosis of whiplash injury of cervical spine only and notes a referral had been given for a CT scan of the cervical spine. This may be related to the claimant’s complaints of pain sometimes radiating to the right arm and elbow. No neurological deficits were recorded.
A report from the physiotherapist dated 26 April 2022[16] notes intermittent pain in the neck rated at 1-3 out of 10, and 1 – 2 out of 10 in the lower back. The claimant was no longer experiencing chest and seatbelt pain. Range of motion in the neck and back had improved to 70 and 80% of normal (in the neck) and 80 – 90% of normal in the lower back.
[16] Page 270 of the Rouse Hill bundle.
A further certificate of fitness was submitted by Dr Suleiman dated 28 April 2022. The claimant had the CT scan, but the results were not available. His neck pain was said to be improving and there was no weakness, headaches or numbness. The claimant had returned to work and was said to be coping well.
Further certificates dated 12 May, 17 May and 16 June 2022 refer to the imaging studies and the diagnosis of “whiplash injury of cervical spine, wedge fracture of cervical spine and right C7 nerve root impingement”. The claimant was awaiting an MRI in the fifth certificate and neurosurgical review in the sixth and Dr Abraszko is mentioned as the neurosurgeon. A dual-energy X-ray absorbitometry (DEXA) bone density scan was also requested.
On 2 June 2022, the claimant attended Dr Schindler at the practice due to neck pain and there is a note “DEXA scan essentially normal”. When the claimant saw Dr Suleiman on

16 June 2022, he was referred to Dr Hsu due to ongoing neck pain which was not worsening and where there were no neurological findings.
On 29 June 2022 the claimant’s neck pain was said to be on and off and last week it was radiating to the left shoulder. The claimant had not yet made an appointment with Dr Hsu. After a case conference it appears the insurer’s company’s claims officer was to consider approving it and making an appointment.
In a letter to Allianz dated 3 August 2022,[17] Dr Sulieman expresses the opinion that the claimant’s “chronic wedge C5/6” was caused by the accident. His reasoning is that the “patient” never had any previous neck injury, pain or complaints. The claimant was said to have been a regular patient of the surgery since 20 May 2022 [sic] and Dr Suleiman said, “I have reviewed all his previous consultations with no record of any previous neck issues.”
[17] Page 39 of R1.
On 21 November 2022 Dr Suleiman records the claimant’s neck pain was “slightly better not resolved”. The claimant was working 18 hours a week and was getting pain when painting the ceiling.
The claimant returned on 4 January 2023. He had seen Dr Singh and had a repeat MRI and “pain is better”. On 24 January 2023 the claimant complained of pain in the left side of his back. On 27 March 2023 Dr Suleiman records “neck pain again says it is radiating to his shoulders no numbness” and there was normal range of motion. There were similar complaints on 1 May 2023. On 8 June 2023 the claimant complained of psychological issues including a severe fear of driving and having flashbacks. His neck pain was said to be better. On 10 July 2023 his back pain was said to have recurred in the last few weeks and there are similar complaints in August and September.
There is a letter to a physiotherapist from Dr Suleiman dated 27 September 2023 requesting treatment for the claimant due to the car accident. It is said “he has seen a neurosurgeon that did not think surgery was needed.”
While Dr Suleiman has produced his records, there are no reports from either Dr Hsu (spine surgeon) or Dr Abraszko (neurosurgeon) in those records.
An allied health recovery request (AHRR) was lodged with Allianz by Mr Crowe, physiotherapist dated 12 January 2022[18] this refers to a whiplash syndrome, constant pain in the neck and lower back and pain over the seatbelt region. Eight sessions were requested. A second request was dated 22 February 2022 and recorded new goals and sought a further eight sessions. A third request dated 26 April 2022 revealing an improvement in range of motion and a further eight sessions were proposed.
[18] Page 8 of R1.
Mr Crowe last progress report is dated 18 July 2023 refers to the radiology, notes the claimant’s rehabilitation had plateaued and that sleeping, lifting and prolonged sitting and standing aggravate his condition. Mr Crowe requested Dr Suleiman consider referring the claimant to a specialist for assessment of his neck.

Radiology

A CT scan of the claimant’s cervical spine was done on 28 April 2022[19] with a clinical history provided of “MVA, neck radiation to the right arm”. The results were stated as:
(a)    kyphoscoliosis;
(b)    chronic wedge compression fracture of C5 (25%);
(c)    moderate C6-7 and mild C5-6 degenerative disc disease;
(d)    mild to moderate right sided C6-7 foraminal stenosis with irritation of the right C7 nerve root, and
(e)    C6-7 disc bulge mildly indents the cervical cord at the rear.
[19] Page 37 of A1.
A bone mineral density scan was done on 1 June 2022[20] which revealed:
“Study has not demonstrated presence of osteoporosis and the lumbar vertebral study has demonstrated DEXA BMD finding of borderline normal / osteopaenia only.”
[20] Page 277 of the Rouse Hill records.
An MRI of the cervical and lumbar spine for “neck and back pain” occurred on

9 December 2022.[21] In respect of the cervical spine it says, “the vertebral body height is preserved” and there is “no fracture”. At C2/3, C3/4, C4/5 and C5/6 there were small broad-based disc osteophytic protrusions with other degenerative changes. There is a broad-based disc osteophytic protrusion at C6/7 with mild compression of the exiting C7 nerve roots on both sides. At C7/T1 there was some mild compression of the left exiting C8 nerve roots.
[21] Page 299 of the Rouse Hill bundle.
There are severe changes in the lumbar spine in particular at L4/5 and L5/S1.
A CT scan undertaken on 4 October 2023[22] showed “cervical vertebral height is preserved” and “no acute fractures” and no significant impingement at C2/3, C3/4, C4/5, C5/6 and C7/T1. At C6/7, there was “moderate spondylosis with annular disc osteophyte complex bulge. No significant spinal canal narrowing. Facet joints are unremarkable. Moderate bilateral neural exit foraminal narrowing”.
[22] Page 311 of the Rouse Hill records.

Expert reports

The insurer has retained Dr Michael Griffiths who has provided a report dated

19 December 2022. He says he was asked to provide an opinion on whether the claimant’s injuries could have been caused by the accident. He notes the limitation of the report in that he has only one photograph available of the damage, no pre-incident medical records and limited post-accident records.
At 3.0, Dr Griffiths lists the documents he has which includes statements from both drivers and two reports of an investigator. There is also a daily living assessment report referred to. The Panel does not have these documents.
Dr Griffiths says that Mr Jalil said he had a green light and the insured driver said he had a green right hand turn arrow. Dr Griffiths says one of the drivers must have had a red light noting their paths of travel.
The insured said his vehicle was a write off. Mr Jalil’s photographs show that both front airbag’s deployed but that the driver’s side thoracic airbag and side head curtain did not deploy. He says the photographs suggest the claimant’s vehicle impacted the other vehicle on an angle with the driver’s side showing a greater intrusion than the passenger side.
He calculates a frontal velocity change of 20 to 30 kmph.
Police attended the scene, but an ambulance was not called. The claimant in his statement is said to have told police he was injured. The insured driver in his statement is reported to have said that both he and the claimant told the police they were not injured.
He expressed the preliminary opinion that the claimant’s pre-accident medical history would be important noting the abnormal pathology was reported as being chronic and degenerative. He suggests that the limited medical records suggest a continuation of degenerative chronic spinal pathology. There is no further report from Dr Griffiths but in the light of the Rouse Hill records now being available no further report would assist the Panel.
At the commencement of these Review proceedings, the Panel would have been assisted by a report from an expert radiologist commenting on the April 2022 imaging studies however, in the light of the Rouse Hill records and the emergence of the subsequent scans, no further report is necessary.

RE-EXAMINATION FINDINGS

Mr Ab Jalil attended an examination on 4 October 2023. He is currently 41 years of age, married with two children.
A Persian interpreter was present in the Farsi language and Mr Ab Jalil utilised the interpreter throughout the examination.
The claimant presented in a straightforward manner and responded directly to the questions put to him regarding the circumstances of the motor accident. He co-operated during the examination when asked to move his neck and upper extremities.

History of the accident and symptoms

Mr Ab Jalil said he was the driver of a Toyota Corolla involved in a motor vehicle accident when driving along Sunnyholt Road in the rain. At the intersection with the Quakers Hill Parkway another vehicle coming from the opposite direction drove across Mr Ab Jalil’s side of the road and the vehicles collided. Mr Ab Jalil’s vehicle was severely damaged, and his airbags deployed.
Mr Ab Jalil said he sustained an injury to his chest from the seat belt and neck and back strain injuries.
The claimant reports his chest pain has resolved since the accident, but he has ongoing neck pain and stiffness as well as some residual low back pain.
When asked, Mr Ab Jalil denied any previous neck injury or conditions. Mr Ab Jalil told Medical Assessor Dixon that he had only seen Dr Suleiman for treatment and the other doctors at the Rouse Hill practice. Therefore, the Panel is proceeding on the basis the available medical records from Dr Suleiman constitute the totality of the available medical information relating to Mr Ab Jalil and his condition.

Examination

Mr Ab Jalil was 175cm tall and weighed 67kg.
There was stiffness of his cervical spine with dysmetria in two of the three planes of motion as follows:
(a)    flexion was decreased by one quarter and extension by one third associated with some pain;
(b)    lateral rotation to the right was decreased by one quarter and to the left by one fifth, and
(c)    lateral flexion was decreased by one half on both sides.
There was tenderness of the trapezius muscles. The sternomastoid muscles were no longer tender. There was no tenderness of the supraclavicular brachial plexuses.
There was no guarding or muscle spasm observed.
Mr Ab Jalil’s cervical foraminal compression test was positive, and his brachial plexus stretch test on the right was positive and negative on the left.
He had symmetrical but mild reduction of the C5/6 reflexes in both upper extremities. His triceps jerks (a C7 reflex) were present and symmetrical with reinforcement.
There was no wasting of his upper limbs. At 10cm above the elbows, both arms measured 32 cm. In the forearms measured 10 cm below the elbow there was 1cm difference on the left (22 cm) when compared with the right (23cm).
His grip strength, intrinsic power and thenar power were grade 5 out of 5 bilaterally.
He had a full symmetrical range of motion of the shoulders, elbows, wrists and hands. He had no objective sensory losses in the upper extremities.
Other than the positive brachial plexus tension test, there were no other clinical findings to suggest radiculopathy although he does have radicular complaint at times with Mr Ab Jalil describing some pain radiating to the right forearm.

Radiology

Although requested to bring radiological imaging studies to the re-examination in the Panel’s report of 7 August 2023, Mr Ab Jalil did not have any of the CT scan or MRI images with him.

CONSIDERATION OF THE ISSUES

What injuries did the claimant sustain in the accident?

It is the clinical judgment of the medical members of the Panel that Mr Ab Jalil sustained a whiplash injury to his neck in the motor accident. There are consistent complaints dating from the day of the accident (to a physiotherapist) and to his GP, Dr Suleiman the day after the accident.
Mr Ab Jalil said he also had a chest injury from the seat belt. His physiotherapy and doctor’s notes confirm a seat belt injury which caused symptoms of pain and discomfort for some months after the accident. Mr Ab Jalil says this injury has since resolved. This injury was investigated but no fracture was found. This injury is a soft tissue, threshold injury.
The Panel notes that Mr Ab Jalil told Medical Assessor Dixon he had a lower back injury. The Panel notes this injury was not referred to Medical Assessor Herald for assessment and the submissions from the parties do not address such an injury.
The GP’s certificates of fitness refer to a sprain of the lumbar and thoracic spine, but these do not appear prominently in the GP notes. As the GP notes document a long-standing lower back complaint, with evidence of a disc protrusion dating back to 2015, it is the Panel’s view that any thoracic or lumbar spine injury was a mild soft-tissue injury which has aggravated pre-existing degenerative changes. The upper and lower back injury is therefore also a threshold injury.

Does the claimant have cervical radiculopathy?

Clause 5.8 of the Guidelines defines radiculopathy as “the impairment caused by the dysfunction of a spinal nerve root or nerve roots” and requires there to be two or more of the following clinical signs present on examination:
(a)    loss or asymmetry of reflexes (as provided for in table 6.8);
(b)    positive sciatic nerve root tension signs;
(c)    muscle atrophy and/or decreased limb circumference (as provided for in table 6.8);
(d)    muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and
(e)    reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
On examination by Medical Assessor Dixon, Mr Ab Jalil had:
(a)    no loss or asymmetry of reflexes. All reflexes were present and equal;
(b)    a positive C7 nerve root tension sign on the right;
(c)    no significant muscle atrophy or muscle weakness in either upper extremity. While there was a 1cm difference in the forearm circumference with the right being larger than the left, in accordance with table 6.8 this is not a clinically significant discrepancy and in the clinical judgment of the members of the Panel reflects the claimant’s right-hand dominance;
(d)    no muscle weakness. Distal power was measured as grade 5 out of 5, and
(e)    there was no reproducible sensory loss and no complaints of paraesthesia made to Medical Assessor Dixon.
Mr Ab Jalil had, at that time, one sign of radiculopathy within the meaning of cl 5.8 but not two or more.

Has the claimant had cervical radiculopathy at any time since the accident?

The Panel has read the extensive records of the Rouse Hill practice and notes of

Dr Suleiman. While there are records of neck pain since the accident with some complaints of pain radiating into the shoulder (such as on 29 June 2022 and 24 March 2023), radiating pain is not one of the five signs of radiculopathy in cl 5.8.
There are no entries in the records suggesting that there have been any of the five signs of radiculopathy at any time since the accident. To the contrary the records are replete with “no neurological signs” and comments about there being no weakness or paraesthesia.
There are no medico-legal reports from either side and no specialist reports (from Dr Hsu or Dr Abraszko) before the Panel.
Medical Assessor Herald reported on a normal neurological examination and his assessment does not reveal any of the five signs of radiculopathy.
The Panel is not satisfied that at any time since the accident the claimant has demonstrated any of the five signs of radiculopathy in an appropriate medical examination that complied with cl 5.6 of the Guidelines. Any injury to any of the claimant’s spinal nerves or nerve roots is therefore, in accordance with cl 4 of the Regulation, a threshold injury as it does not manifest in radiculopathy.

Does the claimant have a compression fracture?

The report of the claimant’s cervical spine CT of 28 April 2022 showed a 25% wedge compression fracture of C5.
A cervical and lumbar spine MRI from 9 December 2022 found “vertebral body height is preserved” and “no fracture”. The comprehensive report describes each level in the spine but does not report evidence of a wedge or compression fracture anywhere.
The claimant’s 4 October 2023 CT scan showed “vertebral height is preserved” and “no acute fractures”. There is also no comment here about a wedge or compression fracture.
The Panel has not had the benefit of reviewing the images of the cervical CT scan taken in April 2022, but the specialist radiologist reporting that scan described the findings as a “chronic” compression fracture. This would suggest there was no evidence of a recent fracture such as a fracture line, soft tissue swelling adjacent to the fracture site or bony sclerosis or callus formation.
The Medical Assessors also note that the April 2022 scan demonstrated there was kyphoscoliosis meaning that the cervical spine was bent in two planes. It is the clinical judgment of the medical members of the Panel that this would have the potential to distort the view of the individual vertebrae and explains why a finding was reported as present on this scan but was not reported on the two subsequent scans, the MRI of 9 December 2022 and the CT scan of 4 October 2023.

The medical members of the Panel note that compression fractures heal with persistence of the loss of height of the affected vertebrae. The affected vertebra does not “uncompress”. It is medically implausible that there was a fracture present in April 2022 but no evidence of any compression or loss of vertebral height in two subsequent studies, using different modalities (CT and the more accurate MRI).
The medical members of the Panel have also considered the clinical presentation of the claimant on the day after the accident. The doctor found a normal range of motion in the cervical spine. It is the clinical judgment of the medical members of the Panel that this would be a most unlikely finding in the presence of an acute cervical vertebral fracture.
The clinical progress of the claimant is also relevant to the Medical Assessors. If the original symptoms had been caused by a fracture, then the claimant’s pain would be expected to resolve as the fracture healed. The persistence of pain would further argue against a fracture being the cause of the original neck pain and the cause of the pain is more consistent with a soft tissue injury aggravating degenerative changes in the spine.
It is therefore the clinical judgment of the Medical Assessors that the original CT scan report of a fracture was erroneous and inconsistent with the subsequent imaging studies, the initial clinical presentation and the clinical progress of the claimant. The Panel is not satisfied that the claimant has a compression fracture in his cervical spine and therefore there was no acute cervical compression fracture sustained in the accident.

CONCLUSION

In the absence of a fracture the claimant has a cervical soft tissue injury, with some radiation of pain to the arm. He does not have the necessary physical findings to support a finding of a nerve root injury manifesting in radiculopathy within the meaning of the Guidelines and therefore has a threshold injury to the cervical spine.
As the Panel has come to a different conclusion to Medical Assessor Herald it therefore follows that his certificate must be revoked.

[2023] NSWPICMP 560

8 November 2023