Allianz Australia Insurance Limited v Alalawi
[2022] NSWPICMP 478
•22 November 2022
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Allianz Australia Insurance Limited v Alalawi [2022] NSWPICMP 478 |
| CLAIMANT: | Taha Alalawi |
| INSURER: | Allianz Australia Insurance Ltd |
| REVIEW Panel | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | Les Barnsley |
| MEDICAL ASSESSOR: | Michael Couch |
| DATE OF DECISION: | 22 November 2022 |
CATCHWORDS: | MOTOR ACCIDENTS – The claimant suffered injury in a motor accident on 10 April 2021 when the insured vehicle collided into the rear side of the claimant’s vehicle forcing it into another vehicle (the motor accident); this was a medical dispute about whether the motor accident caused a non-minor injury within the meaning of the Motor Accident InjuriesAct2017; claimant bore the onus of proof in establishing that the injuries were not a minor injury; Briggs v IAG Ltd (No 2) referred to; reference to David v Allianz Australia Insurance Ltd that two signs of radiculopathy can be present at any time; original Medical Assessor’s findings that claimant had radiculopathy not accepted as Medical Assessor recorded findings that there were no neurological signs yet concluded that radiculopathy present; Held – 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 reference to hand numbness and upper arm pain did not satisfy the meaning of radiculopathy in cl 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 revoked; findings made that claimant sustained a minor injury to the cervical spine. |
| DETERMINATIONS MADE: | Medical Assessment – Minor injury Review Panel Assessment of Minor Injury The Review Panel revokes the certificate dated 9 June 2022 and issues a new certificate that the injury to the cervical spine suffered in the motor accident was a minor injury. The claimant did not suffer any other injuries caused by the motor accident. |
REASONS
BACKGROUND
Mr Taha Alalawi (the claimant) suffered injury in a motor accident on 10 April 2021 when his vehicle was rear ended by the insured vehicle forcing the claimant’s vehicle forward and impacting into another vehicle (the motor accident).[1]
[1] Insurer’s bundle, p 8.
The insurer is liable to pay to Mr Alalawi any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the motor accident.
The issue presently in dispute is whether Mr Alalawi’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”.
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[2] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[2] Section 7.20 of the MAI Act.
The dispute was referred to Medical Assessor Shahzad who issued a medical assessment certificate dated 9 June 2022. Medical Assessor Shahzad concluded that Mr Alalawi sustained a non-minor injury for the purposes of the MAI Act.
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. 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”[3]. An injured person otherwise cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were minor injuries”.[4]
[3] Sections 3.11 and 3.28 of the MAI Act.
[4] Section 4.4 of the MAI Act.
THE REVIEW
The application for referral of the medical assessment to a review panel was made by the insurer within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.
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.[5]
[5] Section 7.26(5) of the MAI Act.
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.The review provisions provide[6] 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).
[6] Section 7.26(5A) of the MAI Act.
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.[7]
[7] Section 41(2) of the PIC Act.
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.[8]
[8] 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.[9]
[9] Section 7.26(6) of the MAI Act.
STATUTORY PROVISIONS
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 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 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.
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.”
Clauses 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.
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.”
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.”
Neurological symptoms that do not meet the assessment criteria for radiculopathy means that the injury will be assessed as a minor injury.[10]
[10] Clause 5.9 of the Guidelines.
Sections 5D and 5E of the Civil Liability Act 2002 apply to the Act.[11]
[11] See s 3B(2) of the Civil Liability Act 2002.
ASSESSMENT UNDER REVIEW
The Medical Assessor reported that neurological examination in the upper and lower limbs were normal and found that the claimant suffered from “mechanical pain” in the cervical and lumbar spine and muscular injury and radiculopathy from the cervical spine into the left shoulder.[12]
[12] Claimant’s bundle, p 220.
The Medical Assessor otherwise concluded that Mr Alalawi suffered radiculopathy into the upper limbs, left shoulder and left sacroiliac joint which were not a minor injury within the meaning of the MAI Act.[13]
SUBMISSIONS
Claimant’s submissions dated 14 October 2021[14]
[13] Claimant’s bundle, p 215.
[14] Claimant’s bundle, p 11.
The claimant submitted that he sustained injuries to the neck with radiculopathy to the upper limbs, left shoulder, left and right hand, back with radiculopathy into the left sacroiliac joint and psychological sequelae.
The claimant submitted that he met the criteria in cl 5.8 in establishing radiculopathy. The evidence supporting that submission was not articulated.
Claimant’s submissions dated 4 August 2022[15]
[15] Claimant’s bundle, p 224.
These submissions were filed objecting to leave to review the Medical Assessment.
The claimant referred to the Medical Assessment submitting that the Medical Assessor has correctly and properly assessed the physical injuries. It was submitted that the assessment was made based on the clinical assessment and the Medical Assessor determined the matter in accordance with the MAI Act and the Guidelines.
The claimant submitted that the assessment was “comprehensive, well rationalised and reasoned” using his “full gamut of his training and skill”.[16]
[16] Claimant’s bundle, p 231.
The claimant referred to David v Allianz Australia Insurance Ltd[17] noting that radiculopathy can be present at any time to establish that the injury is not a minor injury. It was submitted that the Medical Assessor found at least two clinical signs of radiculopathy. As a result, the claimant’s injuries were not a minor injury.
Insurer’s submissions dated 16 November 2021[18]
[17] [2021] NSWPICMP 227 at [104].
[18] Insurer’s bundle, p 1.
The insurer referred to the MRI scan of the cervical spine which it submitted showed multi-level degenerative changes and that the claimant did not sustain any acute, traumatic or structural injury to the cervical spine. It submitted that any manifestation of neurological symptoms is secondary to constitutional changes and not as a result of the motor accident.
The insurer submitted that the claimant did not sustain a thoracic spine injury noting the absence of diagnosis by the general practitioner and physiotherapist and no radiological evidence showing acute, traumatic or structural injury.
The insurer submitted that the CT and MRI scans showed multi-level degenerative changes to the lumbar spine. It submitted that any manifestation of neurological symptoms is secondary to constitutional changes and not as a result of the motor accident.
The insurer also referred to a pre-existing lumbar spine condition evidenced by the certificate of capacity dated 31 August 2017 and Allied Health Recovery Request dated 2 July 2021 referring to “back pain, mild disc 2015”.
Insurer’s submissions on basis for review
The insurer’s submissions why the original Medical Assessment should be reviewed were not included in the material before the Panel.
MATERIAL BEFORE THE REVIEW PANEL
Pre-accident medical records
Various certificates of capacity after the motor accident referred to a pre-existing condition of “back pain, mild disc 2015”.[19]
[19] See for example, claimant’s bundle, p 38.
Medical evidence
The ambulance record dated 10 April 2021 referred to the accident and head and neck pain. The report referred to “nil LOC, head strike or airbags deployed” and no neurological concerns.[20]
[20] Insurer’s bundle, p 21.
The certificate of capacity dated 30 April 2021 referred to cervical radiculopathy, left carpal tunnel with a question mark and post-traumatic stress disorder (PTSD).[21]
[21] Insurer’s bundle, p 12.
Dr Sanki, surgeon provided a report dated 30 April 2021 noting continued complaints of pain in the neck, radiating to the left and right occipital regions down to the T2 level in the thoracic spine. Examination confirmed cervical spasm on both sides, normal reflexes and positive Tinel’s sign on the left side.[22] The clinical note is in similar terms.[23]
[22] Insurer’s bundle, p 60.
[23] Insurer’s bundle, p 79.
The clinical note from Dr Sanki dated 6 May 2021 referred to low back pain radiating to left sacroiliac joint.[24]
[24] Insurer’s bundle, p 79.
In a subsequent report dated 13 May 2021, Dr Sanki noted the lumbar CT scan as showing multi-level disc bulges and an element of spinal stenosis. The doctor recommended swimming and physiotherapy.[25] He also advised that the claimant undergo an MRI scan as he suspected a disc injury at C3/4 and C5/6.
[25] Insurer’s bundle, p 59.
On 27 May 2021 Dr Sanki noted the MRI scan which showed disc dessication at C5/6 and C6/7. The doctor stated that this explained the pain on twisting the head to the left side. [26]
[26] Insurer’s bundle, p 63.
Allied health recovery request dated 2 July 2021 referred to neck pain mostly on left side, pins and needles and numbness on left neck and upper arm and back pain mainly on left side.[27]
[27] Insurer’s bundle, p 71.
A certificate of capacity dated 3 August 2021 noted neck and lumbar spine pain from the motor accident with reference to “back pain, mild disc 2015” as a pre-existing factor.[28]
[28] Insurer’s bundle, p 36.
Emergency Department discharge dated 5 August 2021 noted worsening pain in the “L/back of the chest for few days”.[29] Neurological examination (sensory, power, reflexes and gait) were noted as normal as were previous scans.
[29] Insurer’s bundle, p 27.
Radiology
The CT scan of the lumbar spine dated 7 May 2021 noted left sacroiliac joint pain and confirmed spondylotic changes from L2/3 to L5/S1.[30]
[30] Insurer’s bundle, p 82.
The MRI scan of the cervical spine dated 13 May 2021 is reported as showing no evidence of neural impingement, no disc protrusion and slight bulges at C4/5 and C5/6 with low grade facet arthrosis.[31]
[31] Insurer’s bundle, p 64.
The MRI scan of the lumbar spine dated 11 August 2021 showed multilevel disc bulges, no focal disc herniation and evidence of fracture. [32]
[32] Insurer’s bundle, p 66.
Other records
The claim form dated 28 April 2021 refers to the motor accident and injuries sustained as:[33]
“Discal injury to neck
Radiation of pain into shoulders (more on the left)
Pain in hands
Psychiatric disorder-anxiety, PTSD, depression
Injury to back.”
[33] Insurer’s bundle, p 8.
RE-EXAMINATION
The Panel determined that Mr Alalawi be re-examined by Medical Assessor Barnsley on 14 November 2022.
The re-examination report is as follows:
“Mr Alalawi was assessed by Medical Assessor Les Barnsley at the PIC medical suites on Oxford Road Darlinghurst on 14th November 2022. An interpreter, Majid, NAATI number XXX was in attendance as well as a chaperone, Clarissa, from the PIC staff.
Mr Alalawi did not bring any imaging pictures or reports to the assessment.
Mr Alalawi reported that 6-7 years ago he had a short-lived episode of left sided neck pain, which was treated with Voltaren gel. He specifically denied any low back or shoulder problems prior to the accident. At the time of the accident, he had no musculoskeletal complaints.
On the 10th of April 2021 he was the driver of a Hyundai Elantra. He was working for Uber eats at the time. He was stationary in the line of traffic at a red light when his car was struck from behind by another vehicle. The impact shunted him into the car in front. He said he felt shocked but there was no loss of consciousness. He recalls being flung forward and backwards but does not recall hitting anything inside the car with his head or arms. He was immediately aware of pain in the neck. The pain extended from the left occipital region down to the upper part of the scapular. It did not cross the midline. It extended out along the upper trapezius but did not involve the shoulder cowl. He did not experience any focal neurological symptoms at that time. He was taken to Fairfield hospital. He recalled having some scans and was discharged after four hours.
About 10 days after the accident, he recalls the abrupt onset of left lower lumbar pain focused around the L5 level when he rolled over in bed. He said the pain was very severe for about two weeks.
Unfortunately, both his neck and back pain have persisted since then. On specific questioning about the presence of any neurological symptoms, he stated that he has had some intermittent numbness in the hands which is not problematic too him but which is overshadowed by the severity of his neck pain. Any hand numbness he did have affected the entirety of both hands. He gives a history of an episode about 4 months after the accident when he developed numbness and tingling affecting his entire body, associated with rapid breathing, and cramping of the hands. This sounds like an episode of hyperventilation. He describes occasional numbness in the lower limbs when sitting awkwardly on the floor which is promptly relieved by changing position but has had no persistent neurological symptoms such as weakness pins and needles or sensory loss. There has been no shooting or lancinating pain in any of his limbs.
Mr Alalawi was asked specifically about the presence of other pain or symptoms in any other part of his body, with particular reference to the thoracic spine, shoulders feet and hands. He denied any pain other than in his neck and lower back in the anatomical locations described above.
He has had treatment with physiotherapy and has consulted a specialist surgeon. He is attending hydrotherapy twice a week. He is currently taking:· Celecoxib 200mg/day
· Amitriptyline 25mg at night
· Tapentadol 50mg immediate release 1 twice daily
On examination, Mr Alalawi was a pleasant and cooperative gentleman. He was examined in a gown. He was 165cm tall and weighed 64.5Kg.
Lumbar Spine
He was able to stand on his toes and heels and maintained balance on either foot. There was some hypertonicity (tightness) of his lumbar paravertebral muscles but no guarding or spasm. There was no tenderness over his lumbar spine. Lumbar flexion was restricted so that he could reach his mid shin. Lumbar extension was decreased to 50% of expected. Lateral flexion was restricted to 7cm of translation of his fingertips down the outside of legs. Lumbar rotation was normal. Straight leg raising was 60 degrees on each side when measured with a goniometer. This was limited by low back pain, not leg pain. Sciatic stretch test was negative. Power was normal in hip flexion extension, abduction and adduction on both sides. Knee flexion and extension power and ankle plantar flexion and dorsiflexion power were normal on both sides. In terms of reflexes, both knee jerks and both ankle jerks were present and symmetrical. There was no loss of light touch sensation over any lower limb dermatome. To assess for muscle wasting, leg circumference was measured 10cm above the patella and 10cm below the patella on each side. Above the patella both legs measured 44cm and below the patella both legs measured 34 cm.
Thoracic spine
There was no tenderness over the thoracic spine. Flexion, extension and rotation were symmetrical and of normal amplitude. There was no tenderness, guarding or spasm, and no alteration in light touch sensation over the thoracic dermatomes.
Cervical Spine
There was no guarding or spasm on examination of the cervical spinal musculature. There was some tenderness on palpation of the left mid neck. Measured with a goniometer, right rotation was 30 degrees and left rotation was 60 degrees, Flexion, extension, and lateral flexion were symmetrical and full. Power was normal in all muscle groups specifically finger flexion, finger abduction, thumb abduction, wrist extension and flexion, elbow flexion and extension and shoulder abduction and adduction. In terms of reflexes, biceps jerks, triceps jerks, supinator jerks and finger jerks were all present, symmetrical and brisk. There was no loss of light touch sensation over any upper limb dermatome. To assess for muscle wasting, arm circumference was measured 10cm above the lateral epicondyle and 10cm below the lateral epicondyle on each side. Both upper arms measured 29cm and both forearms measured 25cm.
Shoulders.
A full range of active movements was found in each shoulder, specifically abduction, adduction, flexion, extension, internal rotation and external rotation.
Hands and wrists
A full range of movement was found in the wrists and hands. There was no joint swelling or crepitus. Grip strength was good and there were no areas of sensory loss to light touch on either hand.”
FINDINGS
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.
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[34] and Insurance Australia Ltd v Marsh.[35]
[34] [2021] NSWCA 287 at [40], [41] and [45].
[35] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the reasoning in David that radiculopathy can be present at any time to establish that the injury is not minor for the purposes of the MAI Act.
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.” (emphasis added)
[36] [2022] NSWPICMP 6 at [44] – [62].
[37] [2022] NSWSC 372 at [73].
The Panel adopts the examination report of Medical Assessor Barnsley and adds the following reasons.
Submission on the application of principles in David
As noted, we agree that two signs of radiculopathy can be present at any time for the purposes of defining the injury as not minor. The claimant relied on the conclusion of Medical Assessor Shahzad that this had been established.
Medical Assessor Shahzad did not state what the two signs were. He otherwise noted in the medical assessment that neurological examinations of the upper and lower limbs were normal. The Medical Assessor specifically referred to “muscle power, tone and deep tendon reflexes” as being normal.
Those precise examination findings are incompatible with the conclusion reached by the Medical Assessor that there was “radiculopathy into the left sacroiliac joint” and “radiculopathy into the upper limbs”.
Based on the recorded observations made by Medical Assessor Shahzad, the Panel does not accept that he found two signs of radiculopathy on examination as defined by cl 5.8 of the Guidelines. References to radicular pain does not satisfy the criteria in
cl 5.8. Further, in this matter, the Medical Assessor has noted that neurological examination of the upper and lower limbs was normal. Accordingly, it is unclear the precise nature of the “radiculopathy” that the Medical Assessor referred to as going into either the left sacroiliac joint or into the upper limbs. Given the lack of clarity it may have been radicular pain although, because of the inconsistency in the Reasons, we cannot determine what was meant by the Medical Assessor.Noting the claimant bears the onus, we are not satisfied that there were two signs of radiculopathy in either the legs or arms when the claimant was examined by Medical Assessor Shahzad.
Cervical spine injury
We accept that there was an obvious injury to the cervical spine probably aggravating the pre-existing degenerative changes. That conclusion is consistent with the whiplash injury sustained in the motor accident. This is supported by the mechanism of accident, the immediate development of well documented neck pain and the consistent reports of pain in this area since shortly after the accident.
The scan evidence shows degenerative changes with no evidence of traumatic injury involving an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.
Thoracic spine injury
The Panel does not accept there was injury to the thoracic spine. There was no complaint of thoracic spine injury recorded in the clinical notes and Mr Alalawi did not complain of pain in that region to Medical Assessor Barnsley. Furthermore, there is no clinical or scan evidence that suggests a non-minor injury to the thoracic spine.
Low back injury
There was a significant delay in the onset of back pain following the motor accident. The delay was confirmed by the claimant when he was recently examined by Medical Assessor Barnsley and was not referenced immediately following the motor accident. That delay is consistent with the history recorded by Medical Assessor Shahzad that the claimant began to experience pain in the lumbar spine about a week after the motor accident.[38]
[38] Claimant’s bundle, p 218.
The reference in the claim form of low back injury and subsequent attendances at the general practitioner occurred after the 10-day period.
The various certificates of capacity otherwise refer to a pre-existing back condition in 2015.
The 10-day delay in onset of back symptoms is medically unlikely to relate to the motor accident.
The various back scans otherwise do not show evidence of traumatic injury involving an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.
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 Panel is not satisfied that the claimant injured his low back in the motor accident.
Radiculopathy
The assessment of whether the injury to the cervical spine is non-minor is also dependent on whether there is evidence of radiculopathy. The Panel does not consider that there has been any radiculopathy satisfying cl 5.8 at any time since the motor accident.
First, on specific questioning of symptoms reported by Mr Alalawi there was no report of shooting pain, electrical pain or sensory or motor complaints in a single cervical dermatome.
Secondly, no practitioner at any time has recorded neurological findings that have included two or more of:
(a) loss or asymmetry of reflexes;
(b) positive sciatic nerve root tension signs;
(c) muscle atrophy and/or decreased limb circumference;
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution, and/or
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.Thirdly, there was no evidence of any of these findings on detailed neurological assessment at the assessment today during which these findings were actively sought.
Finally, we have previously addressed the submission that we are not satisfied that Medical Assessor Shahzad found two signs of radiculopathy within the meaning of
cl 5.8.
Left shoulder
The allegation of injury to the left shoulder is not explained by the mechanism of the motor accident involving no suggestion of traumatic impact or seatbelt related effect on that shoulder.
The initial recorded symptoms were probably referred pain from the neck. Further, there is no evidence of pathological changes in the left shoulder caused by motor accident.
We are not satisfied that there was an injury to the left shoulder caused by the motor accident.
Hands
There is no evidence of injury to the hands. The mechanism of injury from the motor accident does not suggest any direct trauma to that body part. The symptoms complained of in the hands are not compatible with a radiculopathy because they were described as affecting the entire hands rather than in a particular dermatome.
CONCLUSION
For these reasons the injury sustained in the motor accident was a minor injury as defined by the MAI Act and the various provisions. The certificate issued by Medical Assessor Shahzad is revoked. The new certificate is attached at the commencement of these Reasons.
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