Allianz Australia Insurance Limited v Skaf

DETERMINATION OF REVIEW PANEL
CITATION:	Allianz Australia Insurance Limited v Skaf [2023] NSWPICMP 625
CLAIMANT:	Jomana Skaf
INSURER:	Allianz Australia Insurance Limited
REVIEW PANEL
MEMBER:	Anthony Scarcella
MEDICAL ASSESSOR:	Christopher Oates
MEDICAL ASSESSOR:	Alan Home
DATE OF DECISION:	27 November 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical assessment of a threshold injury under section 1.6; claimant claimed she sustained injuries to the cervical spine, thoracic spine, lumbar spine, bilateral legs, bilateral shoulders, sternum/chest and head in a motor accident on 29 October 2021; Medical Assessor (MA) Cameron determined that the claimant sustained injuries to those parts of the claimant’s body caused by the motor accident and that all except for the cervical spine injury were threshold injuries; review sought by the insurer under section 7.26; consideration and application of section 1.6 and clauses 5.7, 5.8 and 5.9 of the Motor Accident Guidelines; Held – as a result of the motor accident, the claimant sustained soft tissue injuries to the cervical spine, thoracic spine, lumbar spine, right leg, left leg, bilateral shoulders, sternum/neck and head; all the said injuries are threshold injuries; the certificate of MA Cameron dated 26 September 2022 is revoked.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the certificate of Medical Assessor Ian Cameron dated 26 September 2022. 2. Certifies that the injuries sustained by the claimant in the motor accident on 29 October 2021 to the cervical spine, bilateral shoulders, thoracic spine, lumbar spine, right leg, left leg, head and sternum are threshold injuries for the purposes of the Motor Accident Injuries Act 2017.

STATEMENT OF REASONS

BACKGROUND

The claimant, Ms Jomana Skaf, is a 44-year-old woman who was involved in a motor accident on 29 October 2021 (the motor accident). On 19 November 2021, Ms Skaf made a claim for personal injury benefits on Allianz Australia Insurance Limited (the insurer). She claimed that she suffered injuries to her neck, bilateral shoulders, upper back, mid back, lower back, left leg, right leg and a psychological injury as a result of the motor accident.
Ms Skaf’s claim is governed by the provisions of the Motor Accident Injuries Act2017 (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 compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
A dispute has arisen between Ms Skaf and the insurer as to whether, for the purposes of the MAI Act, the injuries caused by the motor accident were threshold injuries.
The dispute about whether the motor accident caused the claimed injuries are threshold injuries is a medical dispute, as defined by s 7.17 of the MAI Act and is a medical assessment matter: Schedule 2 cl 2(e) of the MAI Act.
The Motor Accident Injuries Amendment Act 2022 amended the MAI Act to omit the term ‘minor injury’ and insert the term ‘threshold injury’ from 1 April 2023. References in these reasons to ‘minor injury’ or ‘minor injuries’ are references taken from documents created prior to 1 April 2023.
The medical dispute was referred to the Personal Injury Commission (Commission) and the Commission assigned it to Medical Assessor Ian Cameron for assessment.
The medical dispute was assessed by Medical Assessor Cameron, who issued a certificate dated 29 September 2022 wherein he certified that the injury to the cervical spine was caused by the motor accident and was a non-minor injury for the purposes of the MAI Act. Further, he certified that the bilateral shoulder, thoracic spine, lumbar spine, right leg, left leg, head and sternum injuries were all soft tissue injuries caused by the motor accident and that they were minor injuries for the purposes of the MAI Act (the Medical Assessment).

REVIEW PROCEDURE

The insurer sought a review of the Medical Assessment in accordance with s 7.26 of the MAI Act (the Review).
On 16 March 2023, the President’s delegate determined that there was reasonable cause to suspect that the Medical Assessment was incorrect in a material respect and referred the matter to a Review Panel (the Panel).
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 new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission: s 7.26(5A) of the MAI Act. Accordingly, the President’s delegate has convened this Panel to conduct the review of the Medical Assessment.
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: s 41(2) of the PIC Act.
The Review of the Medical Assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect. The Review is by way of a new assessment of all matters with which the medical assessment is concerned: s 7.26(6) of the MAI Act. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
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: Rule 128 of the PIC Rules.
On 4 May 2023, the Panel directed the parties to lodge with the Commission an indexed and paginated final bundle on which they relied in the Review (the insurer by 15 May 2023 and Ms Skaf by 22 May 2023). The parties advised the Panel that they did not propose to lodge any further documents. The insurer informed the Panel that it relied on the documents identified as “R1” in the Commission’s portal. Ms Skaf advised the Panel that she relied on Medical Assessor Cameron’s assessment certificate dated 26 September 2022.
On 30 May 2023, the Panel advised the parties that it would be assisted by the provision of the following:
(a) a copy of the claimant’s general practitioners’ clinical records pre-dating the motor accident from 1 September 2018, and
(b) an electronic copy of all relevant medical imaging studies from 1 September 2018.
On 30 May 2023, the Panel also requested the parties to consider whether they accepted Medical Assessor Cameron’s assessment that the bilateral shoulder, thoracic spine, lumbar spine, right leg, left leg, head and sternum injuries were threshold injuries (leaving aside the issue of causation). On 31 May 2023, Ms Skaf’s lawyer advised that Ms Skaf accepted Medical Assessor Cameron’s assessment that the bilateral shoulder, thoracic spine, lumbar spine, right leg, left leg, head and sternum injuries were threshold injuries (leaving aside the issue of causation). On 2 June 2023, the insurer likewise accepted Medical Assessor Cameron’s assessment in this regard. Accordingly, by agreement, the dispute before the Panel was narrowed to the assessment of the claimed injury to the cervical spine.
On 31 July 2023, the Panel informed the parties that it considered a re-examination of Ms Skaf was required. Arrangements were made for Ms Skaf to be re-examined by Medical Assessor Alan Home in-person and Medical Assessor Christopher Oates by video link on 15 September 2023. The insurer was directed to lodge the clinical records and medical imaging studies sought in the Panel’s Report and Directions dated 30 May 2023 by 1 September 2023. Ms Skaf was directed to provide the Panel with any final submissions in response to any matters raised in the Panel’s report and directions by 6 September 2023. The insurer was directed to provide the Panel with any final submissions in response to any matters raised in the Panel’s report and directions by 13 September 2023.

STATUTORY PROVISIONS

Section 1.4 of the MAI Act defines ‘injury’ to mean a personal or bodily injury and includes a pre-natal injury; a psychological or psychiatric injury; and damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses.
Whilst almost all injured persons are entitled to statutory benefits in accordance with Part 3 of the MAI Act, there are some disentitling provisions and limits to the amount and extent of benefits available. One of these restrictions is that, under ss 3.11(1) and 3.28(1) of the MAI Act, statutory benefits cease 26 weeks after the motor accident if the only injuries sustained by the injured person are ‘threshold’ injuries.
The Motor Accidents Injuries Amendment Act 2022 provided for a number of amendments to the scheme of statutory benefits including the payment of statutory benefits on a not at fault or no-fault basis being extended from 26 weeks to 52 weeks and the repeal of s 3.28(3) of the MAI Act, resulting in no statutory benefits being payable after 52 weeks if the injuries are threshold injuries or if the claimant is wholly or mostly at fault. These amendments only apply to a motor accident that occurred after 1 April 2023: Schedule 4, Part 7 of the MAI Act.
Further, s 4.4 of the MAI Act provides that no damages may be awarded to an injured person if the person’s only injuries resulting from the motor accident were threshold injuries.
A threshold injury is defined in s 1.6 of the MAI Act and includes a ‘soft tissue injury’.
Section 1.6(2) of the MAI Act defines a soft tissue injury to mean an 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 of the MAI Act provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulations) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by a motor accident is a threshold injury for the purposes of the MAI Act. Version 9.2 of the Guidelines commenced on 10 November 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“General provisions for assessment
5.3    The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4    Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5    A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6    The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a)a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b)a review of all relevant records available at the assessment
(c)a comprehensive description of the injured person’s current symptoms
(d)a careful and thorough physical and/or psychological examination
(e)diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
In respect of the assessment of threshold injury to the neck or spine, cls 5.7, 5.8 and 5.9 of the Guidelines provide:
“Soft tissue assessment - injury to a spinal nerve root
5.7 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.
5.8 Radiculopathy means the impairment caused by dysfunction of the 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 of symmetry 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.
5.9 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.”
In respect of causation of injuries, Wright J in Briggs v IAG Limited trading as NRMA Insurance[1] stated:
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries.”
[1] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372 at [35].
Clause 6.6 of the Guidelines notes:
“6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.”

Clause 6.7 of the Guidelines states:
“There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”

ASSESSMENT UNDER REVIEW

Medical Assessor Cameron examined Ms Skaf on 20 September 2022 and issued a certificate under s 7.23(1) of the MAI Act dated 26 September 2022.
Medical Assessor Cameron was asked to assess the minor (threshold) injury dispute in respect of the following injuries:
(a)    cervical spine – whiplash associated disorder, extreme pain, C5/6 broad-based posterior disc bulge with narrowing of both exit foramen, radiculopathy and acute disc herniation;
(b)    bilateral shoulders – rotator cuff related pain and radicular symptoms to the top of the shoulders;
(c)    thoracic spine – radiculopathy, pain and restricted range of motion;
(d)    lumbar spine – radiculopathy, L4/5 disc bulge, very stiff lower back and restricted range of motion;
(e)    right leg – soft tissue injury;
(f)    left leg – soft tissue injury;
(g)    head – closed head injury, and
(h)    sternum – chest pains and difficulty breathing.
Medical Assessor Cameron took a pre-accident history from Ms Skaf, who reported that she lived with her two children aged 21 and 17 years. She was in receipt of Centrelink JobSeeker and single parent allowances at the time of the motor accident. She had a past history of pain but it was not severe. She had been consulting a psychiatrist. She was taking migraine medication.
In respect of the motor accident, Medical Assessor Cameron took a history that Ms Skaf was the driver of a vehicle that left the road and struck a tree when she tried to evade a collision with another vehicle. Ambulance attended. She was conveyed to Fairfield Hospital where she was assessed and discharged.
In respect of symptoms and treatment following the motor accident, Ms Skaf reported to Medical Assessor Cameron that it had been difficult to consult a local doctor because her previous doctor was unwell. She eventually found another general practitioner. Prior to the motor accident, she had undergone injections to both shoulders in April 2021. Following the motor accident, shoulder pain increased and she underwent a further shoulder injection in April 2022. Multiple symptoms have persisted.
Ms Skaf did not report any relevant injuries or conditions sustained since the motor accident.
In respect of current symptoms, Ms Skaf complained of ongoing neck pain and pain in her upper, middle and lower back. There are noises in her neck. There is pelvic pain across the body at hip level. There is pain in the legs and limited movement. She has difficulties carrying and bending. She suffers poor sleep due to back pain. She is unable to do her housework. She is able to drive.
Ms Skaf informed Medical Assessor Cameron that she currently takes paracetamol and Tramadol as required. She also takes oxazepam 15mg about three times per week. Dr Al Shadidi is her current general practitioner.
In respect of Ms Skaf’s general presentation, Medical Assessor Cameron observed that she was right-handed, 166cm in height and weighed 77kg. She was cooperative. She was somewhat anxious and upset. There was no cognitive impairment.
On examination of Ms Skaf’s cervical spine, Medical Assessor Cameron observed that there was moderately and symmetrically reduced range of motion (to 70% normal) in all planes with no muscle spasm, no muscle guarding, no dysmetria and no non-verifiable radicular complaints. Nerve tension signs were negative.
On examination of Ms Skaf’s shoulders, Medical Assessor Cameron observed a full range of motion at both shoulders with pain on extremes of movement. There was a full range of motion at other upper extremity joints. There were no neurological abnormalities in the upper extremities. Circumferences of the upper extremities were both 24cm.

On examination of Ms Skaf’s thoracic spine, Medical Assessor Cameron observed that there was moderately and symmetrically reduced range of motion (to 70% normal) in all planes with no muscle spasm, no muscle guarding, no dysmetria and no non-verifiable radicular complaints.
On examination of Ms Skaf’s chest, she reported sternal tenderness.
On examination of Ms Skaf’s lumbar spine, Medical Assessor Cameron observed that there was moderately and symmetrically reduced range of motion (to 70% normal) in all planes with no muscle spasm, no muscle guarding, no dysmetria and no non-verifiable radicular complaints. Nerve tension signs were negative.
On examination of Ms Skaf’s lower extremities, Medical Assessor Cameron observed a full range of motion at both knees; a full range of motion at other lower extremity joints; no neurological abnormalities; circumferences of the lower extremities were both 38cm; and that she walked with a normal gait.
Medical Assessor Cameron was of the view that Ms Skaf was consistent in her presentation.
Medical Assessor Cameron reviewed and summarised the relevant documentation made available to him. He noted that there were no imaging studies to review.
Medical Assessor Cameron concluded that the following injuries were caused by the motor accident:
(a)    cervical spine – soft tissue injury with acute disc herniation;
(b)    bilateral shoulders – soft tissue injury;
(c)    thoracic spine – soft tissue injury;
(d)    lumbar spine – soft tissue injury;
(e)    right leg – soft tissue injury;
(f)    left leg – soft tissue injury;
(g)    head – soft tissue injury, and
(h)    sternum – soft tissue injury.
Medical Assessor Cameron opined that there was no evidence of radiculopathy as defined in the Guidelines currently or at any time after the motor accident. The disc bulges noted were not related to the motor accident and are frequently found in the asymptomatic general population. However, the occurrence of the cervical disc herniation was not a usual appearance and it likely represented an acute disc herniation related to the motor accident. Further, there was no evidence of a closed head injury because there was no medically verified loss of consciousness, no post-traumatic amnesia and no brain imaging abnormality.
Medical Assessor Cameron determined that the bilateral shoulder, thoracic spine, lumbar spine, right leg, left leg, head and sternum injuries were minor (threshold) injuries. He determined that the cervical spine injury was a non-minor (non-threshold) injury.

EVIDENCE BEFORE THE PANEL

The evidence before the Panel consisted of the following:
(a)    the insurer’s indexed bundle of documents dated 11 October 2022 identified as “R1” on the Commission’s portal (insurer’s documents);
(b)    Medical Assessor Cameron’s certificate dated 26 September 2022, and
(c)    Australis Group clinical records produced on 14 July 2023 (Australis records).

REVIEW OF THE EVIDENCE

NSW police

In evidence, there is the NSW police letter dated 3 December 2021, which had attached to it the event report E 84796428 (the event report) produced on 2 December 2021.[2]
[2] Insurer's documents at pages 54-60.
The event report described the incident type as a major traffic crash.
The event report provided crash summary details that included the vehicle being driven by Ms Skaf being forced to merge off the road by a vehicle on her right merging into her lane resulting in Ms Skaf’s vehicle colliding with a tree. It reported that the motor accident occurred at about 5.40pm on 29 October 2021 and that the stated speed at the time was 60kmph.
The event report noted that Ms Skaf was conveyed to Fairfield Hospital by ambulance.

Application for personal injury benefits

On 19 November 2021, Ms Skaf completed an application for personal injury benefits in respect of the motor accident (the application form).[3]
[3] Insurer’s documents at pages 7-11.
The application form set out the basic particulars of the motor accident consistent with the history taken by Medical Assessor Cameron and that recorded in the NSW police event report.
In the application form, Ms Skaf described the injuries she received in the motor accident as follows:
“neck, left and right shoulder, upper back, mid back, lower back, left leg, right leg, psychological.”[4]
[4] Insurer's documents at page 8.
In the application form, Ms Skaf disclosed that, prior to the motor accident, she had suffered from depression.

Relevant pre-accident medical history and investigations

In a referral letter to Associate Professor James van Gelder, neurosurgeon and spine surgeon, dated 13 November 2021, Dr Milad Youkhana, general practitioner, of Ware Street Medical and Dental Centre included, amongst other things, the following in Ms Skaf’s past medical history:
(a)    4 May 2018: right rotator cuff tendinitis;
(b)    5 September 2018: bilateral carpal tunnel syndrome, bilateral cervical radiculopathy and bilateral rotator cuff tendinitis;
(c)    10 September 2018: cervical disc disease, right subacromial bursitis and bilateral supraspinatus tendinitis;
(d)    3 September 2019: right subacromial bursitis;
(e)    17 January 2020: mechanical low back pain;
(f)    24 January 2020: facet joint arthritis, foraminal stenosis, lumbar disc disease and lumbar radiculopathy, and
(g)    3 May 2021: left subacromial bursitis and left supraspinatus tendinitis.[5]
[5] Insurer's documents at pages 70-71.
On 23 April 2021, Ms Skaf underwent a right shoulder ultrasound. The ultrasound demonstrated calcific tendonitis of supraspinatus, infraspinatus and subscapularis with no tear and bursal thickening with impingement.
On 26 April 2021, Ms Skaf underwent an ultrasound-guided right subacromial corticosteroid injection.
On 27 April 2021, Ms Skaf underwent a CT scan of her cervical and thoracic spine and an ultrasound of her left shoulder. The CT scans demonstrated mild cervical degenerative change with regions of mild foraminal stenosis at left C5/6 with no definite neural impingement. No facet joint degeneration. Mild degenerative change in the thoracic spine with no evidence of neural impingement. The left shoulder ultrasound demonstrated mild calcific tendinosis of supraspinatus and subacromial/subdeltoid bursitis with features of impingement.
On 4 May 2021, Ms Skaf underwent an ultrasound-guided left subacromial/subdeltoid bursal corticosteroid injection.

Treating medical records and reports

The NSW ambulance electronic medical record reported that, on 29 October 2021, Ms Skaf was conveyed to Fairfield Hospital by ambulance and presented to the emergency department. The electronic medical record reported a history of the motor accident that was consistent with the evidence. It was also reported that Ms Skaf complained to paramedics of headache, shock and anxiety. Ms Skaf denied having struck her head or having lost consciousness. She denied having cervical spine pain or any other injuries in the motor accident. The paramedics observed a seatbelt abrasion but no other obvious injuries.[6]
[6] Insurer's documents at page 62.
Ms Skaf was admitted to Fairfield Hospital on 29 October 2021 and discharged on 30 October 2021. The Fairfield Hospital clinical records took a history of the motor accident that was consistent with the evidence. The clinical records noted that Ms Skaf complained of pain in the back of the head, neck, bilateral shoulders and the lower back. There was no chest pain, no breathing difficulty and no abdominal pain. On examination, there was no visible contusion over the chest or abdomen. Medical staff concluded that Ms Skaf had likely suffered a whiplash injury in the motor accident.[7]
[7] Insurer’s documents at pages 195-196.
On 29 October 2021, Ms Skaf underwent a CT scan of her head and cervical spine by Dr John Vedelago, radiologist, of Fairfield Hospital. The reported clinical history was of complaints of pain in the back of the head following a motor accident. Dr Vedelago concluded that there was no acute intracranial haemorrhage or subdural haematoma identified. There was no acute cervical spine fracture identified.[8]
[8] Insurer's documents at page 239.
On 29 October 2021, Ms Skaf also underwent a chest X-ray by Dr P Sharma, radiologist, of Fairfield Hospital. The reported clinical history included complaints of pain in the back of the head, neck pain, bilateral arm pain and lower back pain following a motor accident. On examination, it was noted that Ms Skaf was tender over the C5/6 and had mild tenderness over the lumbar spine. Dr Sharma concluded that there were no rib fractures; that cardiac and mediastinal outlines were normal; that the lungs were clear; and that right rotator cuff calcification was noted.[9]
[9] Insurer's documents at page 242.
On 29 October 2021, Ms Skaf also underwent a lumbosacral spine X-ray by Dr Sharma of Fairfield Hospital. Dr Sharma concluded that the lumbar vertebral body height and alignment was maintained; that there was no deformity of the visualised transverse processes; that intervertebral disc spaces were preserved; and that there was no acute bony abnormality.[10]
[10] Insurer's documents at page 243.
On 31 October 2021, Ms Skaf underwent a right shoulder X-ray by Dr N Shaba, radiologist, of Fairfield Hospital. The reported clinical history included right shoulder pain following a motor accident two days earlier, with pain on adduction. Dr Shaba concluded that there was no acute displaced fracture or dislocation and that there was a bone island in the lateral aspect of the humeral head, which was a normal variant.[11]
[11] Insurer's documents at page 241.
Ms Skaf initially consulted Dr Youkhana following the motor accident. Ms Skaf’s early consultations with Dr Youkhana took place whilst he was practising at Ware Street Medical and Dental Centre. She subsequently consulted him at the Sonic Health Plus Guildford medical practice.
On 8 November 2021, Ms Skaf underwent a cervical spine MRI scan by Dr Vincent Caristo, radiologist, on the referral of Dr Youkhana. Dr Caristo concluded that there was some narrowing of both exit foramen at the C5/6 level with the right side more severely affected. He opined that on dynamic movement there may well be irritation of the right C6 root. There was no canal stenosis at any level.[12]
[12] Insurer's documents at page 134.
On 13 November 2021, Dr Youkhana referred Ms Skaf to Associate Professor van Gelder.[13]
[13] Insurer's documents at pages 70-71.
On 26 November 2021, Ms Skaf consulted Dr Tom Lieng, general practitioner, of the medical practice known as Australis Group. Dr Lieng took a history of the motor accident that was consistent with the evidence. Ms Skaf complained of neck, lumbar, bilateral shoulder, chest and head pain. Dr Lieng noted that Ms Skaf was medicating with Tramadol and Voltaren. She had undergone physiotherapy but found it too painful. She requested him to assist her in submitting a claim for treatment.[14]
[14] Australis records at pages 2-3.
On 3 December 2021, Ms Skaf consulted Dr Lieng, who referred her for physiotherapy (JQ Physiotherapy and Sports Rehabilitation)[15] and prescribed her Voltaren 50mg tablets (one tablet twice daily).[16]
[15] Australis records at page 49.
[16] Australis records at page 3.
On 17 December 2021, Ms Skaf consulted Dr Lieng complaining of an inability to sleep due to shoulder pain and that she experienced gastrointestinal upset on taking the prescribed Voltaren tablets. Dr Lieng advised her to cease taking Voltaren and prescribed Celebrex 100mg capsules to be taken once daily.[17]
[17] Australis records at pages 3-4.
On 17 January 2022, Ms Skaf consulted Dr Lieng reporting little improvement in her condition. Dr Lieng noted diffuse pain over the cervical, thoracic and lumbar areas with a reasonable range of motion, globally reduced. He recommended that she continue with the current treatment plan and that they await a report from Associate Professor van Gelder after the upcoming consultation with him.[18]
[18] Australis records at page 4.
On 1 February 2022, Ms Skaf consulted Associate Professor van Gelder, who reported to Dr Youkhana on 11 February 2022. Associate Professor van Gelder took a history of the motor accident from Ms Skaf that was consistent with the evidence. Associate Professor van Gelder interpreted the MRI scan of Ms Skaf’s cervical spine dated 8 November 2021 as demonstrating focal acute looking disc herniations on the right at C5/6 and on the left at C6/7. Associate Professor van Gelder concluded as follows:
“Ms Skaf has non-specific neck pain after a motor vehicle accident associated with acute disc herniation in the cervical spine. She does not have clear-cut nerve symptoms or signs of deformity or instability that would make an indication for neurosurgical treatments. She is unlikely to have a sustained meaningful benefit from cervical injections. Disc herniations like this can shrink over six months or so and inflammation can settle. Ms Skaf should continue with management of non-specific chronic neck pain along standard guidelines for musculoskeletal conditions. Thinks [sic – Things] that may help include physiotherapy advice on symptomatic treatments and exercise and pain management strategies. She will not benefit from manual therapies and she had found this painful in the past. It is not possible to predict when symptoms will improve. Ms Skaf should be further investigated for back and hip symptoms. If possible, she would benefit from treatment of her anxiety and depression. She may benefit from practical assistance and social support.” [19]
[19] Insurer's documents at pages 72-73.
On 3 February 2022, Ms Skaf consulted Dr Lieng complaining of worsening pain, being pain over the whole of her spine. She reported that she had presented to hospital on 30 January 2022 and was diagnosed with anxiety. She also reported that she had consulted Associate Professor van Gelder. She told Dr Lieng that she was worried that there was something wrong with her back due to the ongoing pain. She advised that she was already seeing a psychologist. Dr Lieng referred her for further scans at InjuryScan.[20] He also had a long discussion with her about catastrophising and pain focus.[21]
[20] Australis documents at page 57.
[21] Australis documents at pages 4-5.
On 20 February 2022, Ms Skaf underwent MRI scans of her thoracic spine and lumbar spine by Dr Niranjan Ganeshan, radiologist. Dr Ganeshan concluded that there was ligamentum flavum thickening and mild facet joint arthropathy at L4/5 with a low-grade disc bulge and minimal canal narrowing without root impingement. There was no other evidence of disc disease and no evidence of traumatic osseous injury.[22]
[22] Insurer's documents at page 117.
On 1 March 2022, Ms Skaf consulted Dr Lieng and they discussed the outcome of the MRI scans of her thoracic spine and lumbar spine.[23]
[23] Australis documents at page 6.
On 14 April 2022, Ms Skaf consulted Dr Lieng who noted that she was clinically better and moving better. She was still experiencing pain but overall, did not appear to look as stressed.[24]
[24] Australis documents at page 7.
On 20 May 2022, Ms Samantha Liu, accredited exercise physiologist, of FX Conditioning reported to Dr Lieng.[25] Ms Liu noted that Ms Skaf reported ongoing pain symptoms in her shoulders and neck that worsened with increased activity. She also reported ongoing pain symptoms in her lower back particularly with twisting and sudden flexion movements. She reported tightness in the back of the knees with prolonged periods of walking or standing. On objective assessment, Ms Liu observed full shoulder flexion, full shoulder abduction and improved movement when performing exercises and walking. She opined that psychosocial factors were involved, namely, fear avoidance and lack of understanding of active treatment. Ms Liu reported that Ms Skaf had participated in eight exercise physiology sessions and had achieved a lifting capacity of 5kg and unilateral pulling/pushing up to 9kg. She had progressed in mobility with rehabilitation and reported pain at a lesser frequency than initially and now presented as less pain-focused. Ms Skaf had been provided with tools to aid self-management of her condition through exercise and other strategies and was discharged from exercise physiology.
[25] Australis documents at page 38.
On 4 July 2022, Ms Skaf underwent an ultrasound-guided right subacromial/subdeltoid bursal injection of corticosteroid.
On 12 July 2022, Ms Skaf underwent an ultrasound-guided left subacromial/subdeltoid bursal injection of corticosteroid.
In the certificates of capacity issued to Ms Skaf by Dr Lieng, he diagnosed the motor accident related injuries as whiplash associated disorder, bilateral shoulder injuries, lumbar spine injury, closed head injury and sternum injury.[26]

SUBMISSIONS

[26] Insurer's documents at pages 12-45.

Insurer’s submissions

Ms Skaf’s alleged injuries as a result of the motor accident meet the definition of a threshold injury for the purposes of the MAI Act.
Ms Skaf sustained a soft tissue injury to her cervical spine, which is a threshold injury for the purposes of the MAI Act. Such proposition is supported by the diagnoses of a whiplash associated disorder by Ms Skaf’s treatment providers together with post-accident CT imaging revealing no abnormalities to the cervical spine.
Ms Skaf’s complaints of cervical spine radiculopathy following the motor accident and the post-accident MRI findings of focal acute looking disc herniations on the right at C5/6 and on the left at C6/7 likely pre-dated the motor accident. There was a pre-existing history of cervical spine radiculopathy, arthritis and disc disease since, at least, 2018. Further, Associate Professor van Gelder opined that Ms Skaf suffered from non-specific chronic neck pain and did not suffer from clear-cut nerve symptoms or signs of deformity at the time of his examination.
Ms Skaf sustained a soft tissue injury to her thoracic spine, which is a threshold injury for the purposes of the MAI Act. In the MRI scan dated 20 February 2022, there was no evidence of disc disease or traumatic osseous injury to the thoracic spine.
Ms Skaf sustained a soft tissue injury to her lumbar spine, which is a threshold injury for the purposes of the MAI Act. The ligamentum flavum thickening and mild facet joint arthropathy at L4/5 with a low-great disc bulge and minimal canal narrowing and no root impingement found in the MRI scan dated 20 February 2022, was pathology that pre-dated the motor accident. Such proposition is supported by Ms Skaf’s general practitioner clinical records and their reference to prior mechanical low back pain, arthritis, lumbar spine disc disease with radiculopathy since, at least, 2020.
Ms Skaf’s alleged bilateral leg injuries are not causally related to the motor accident. Such proposition is supported by the lack of any related bilateral leg complaints in the treating practitioners’ records and the absence of any radiological investigations. In the alternative, if there is a finding of bilateral leg injuries, then any such injuries are threshold injuries for the purposes of the MAI Act.
Ms Skaf sustained soft tissue injuries to her shoulders, which are threshold injuries for the purposes of the MAI Act. The medical evidence revealed a history of shoulder arthritis, a rotator cuff tendonitis, subacromial bursitis and supraspinatus tendonitis since, at least, 2018 and as recently as May 2021. There was no post-accident medical imaging to the bilateral shoulders which would suggest that Ms Skaf sustained anything more than a soft tissue injury as a result of the motor accident.
Ms Skaf sustained a soft tissue injury to her chest, which is a threshold injury in accordance with the MAI Act. The diagnosis of a sternum injury and costochondritis by the general practitioner is disputed because the NSW Ambulance and Fairfield Hospital records did not record complaints of chest pain, other than seatbelt abrasion. Similarly, the post-accident chest X-ray did not indicate any nerve or acute structural injury.

Ms Skaf’s claimed closed head injury was not causally related to the motor accident. The NSW Ambulance report did not record any head strike at the time of the accident and further, post-accident CT imaging of the head did not reveal any abnormality. Whilst the treating general practitioner diagnosed a closed head injury, such diagnosis was inconsistent with the NSW Ambulance and Fairfield Hospital records that stated that Ms Skaf was unaware whether she hit her head in the motor accident. In the alternative, if there is a finding of a head injury as a result of the motor accident, then it is submitted that such injury satisfies the criteria of a threshold injury for the purposes of the MAI Act.

Ms Skaf’s submissions

As a result of the motor accident, Ms Skaf sustained a whiplash associated disorder, extreme pain, C5/6 broad-based posterior disc bulge with narrowing of both exit foramen, radiculopathy and acute disc herniation.
The injury to Ms Skaf’s cervical spine is a non-threshold injury.
Ms Skaf conceded that the claimed injuries to her thoracic spine, lumbar spine, bilateral legs, bilateral shoulders, chest/sternum and head were all threshold injuries.

THE RE-EXAMINATION

The Panel re-examination of Ms Skaf was undertaken by Medical Assessor Home in-person in his rooms and by Medical Assessor Oates via audio-visual link. Medical Assessor Oates was present throughout the assessment. The history was obtained with the assistance of an Arabic language interpreter, Ms Zahraa Mortada, NAATI number CPN0HS8YI.

Past history

The Panel sought Ms Skaf’s past history.
Ms Skaf reported that she had no prior history of neck pain.
Ms Skaf did recall chronic pain at the right shoulder which had been managed with approximately two to three corticosteroid injections whilst overseas. After arriving in Australia in February 2018, she attended Dr Atto in Fairfield. She recalled that she had received two or three corticosteroid injections into her right shoulder in the period between 2018 and the motor accident.
Ms Skaf recalled that she had also required a corticosteroid injection into her left shoulder, administered in May 2021. On each occasion, she experienced temporary symptom benefit for up to 12 months following each injection.
Ms Skaf recalled that she had also attended a rheumatologist, Dr Rozario, prior to the motor accident.
On enquiry, Ms Skaf confirmed an episode of lower back pain in early 2020, for which she underwent CT scan imaging. She could not recall the precise advice but did recall that she was told that there was evidence of disc bulging on the scans. She stated that symptoms settled over a period of several months by early 2020. During the episode of back pain, she required treatment with Lyrica. She could not recall other treatment.
Ms Skaf recalled that she had previously taken Voltaren anti-inflammatory medication periodically. She did not recall persisting symptoms of lower back pain prior to the motor accident. However, she continued to experience, at least, low grade symptoms at the right shoulder.
On enquiry, Ms Skaf could not recall any prior history of motor vehicle accidents or traumatic falls prior to the onset of her previous shoulder or back conditions.
Ms Skaf brought additional imaging to the assessment, which is referred to below.

History of the motor accident

Ms Skaf recalled that she was involved in the motor accident on 29 October 2021 as the unaccompanied seat-belted driver of a Toyota Kluger travelling along Polding Street in Fairfield Heights toward the roundabout at Rawson Street. She stated that there was a stationary car turning right in the right hand lane in front. Her vehicle was in the left hand lane. A car travelling in front of her in the right hand lane allegedly changed lanes without warning. She took evasive action and drove off the road toward a house fence before attempting to re-correct steering to the right. Her vehicle then impacted a tree head on. Airbags did not deploy.
Ms Skaf recalled that she was helped out of the car by a pedestrian. She recalled early symptoms of psychological shock. An ambulance attended the scene. She did not recall impact with the internal aspects of her vehicle. She recalled that she had later developed bruising in her right or left thigh, she could not recall which. She was transported by ambulance to Fairfield Hospital.

History of symptoms and treatment following the motor accident

Ms Skaf recalled early symptoms of chest pain. She could not recall symptoms of neck or lower back pain at the initial attendance. She was assessed that evening and attended the hospital between 6.00pm and 1.00am, when she left the hospital to travel home. It is noted that CT scans of the head and cervical spine were performed.
Ms Skaf confirmed that she re-attended the hospital on 31 October 2021 with symptoms of right shoulder pain.
Ms Skaf subsequently attended her general practitioner’s rooms in Fairfield. She was then seen by Dr Youkhana, as Dr Atto was not available. She was referred for MRI scans of the cervical spine, performed on 8 November 2021. Subsequently, she was referred to Associate Professor van Gelder on 13 November 2021.
In late November 2021, she attended Dr Lieng. She recalled that this was related to a referral from the insurer.
Ms Skaf said that, thereafter, she attended a further physiotherapist for treatment directed toward her complaints of neck and back pain. She was also referred for MRI scans of the thoracic spine and lumbar spine, performed in February 2022.
Ms Skaf attended Associate Professor van Gelder on 11 February 2022. She received advice to continue with physical exercise.
Ms Skaf underwent further ultrasound guided right and left subacromial bursal injections, performed on 4 July 2022 and 12 July 2022. She again recalled symptom benefit from the procedures.
Over the last few months, Ms Skaf had been attended by a physiotherapist funded through the National Disability Insurance Scheme (NDIS) who visits her home. This treatment includes passive therapy techniques such as massage directed toward her spinal complaints at weekly intervals.
Ms Skaf could not recall further specialist attendance.
Ms Skaf currently takes Tramadol sparingly, approximately once per month. She takes Panadeine Forte analgesia once or twice weekly. She had previously trialled Paracetamol but found that this was ineffective. She now also takes Valium three to four days per week.

Current symptoms

Ms Skaf reported fairly constant neck pain at average intensity of 5/10 on a good day and up to 10/10 on a bad day. The pain is felt bilaterally and evenly across the neck. There are frequent headache symptoms. Sometimes, there is associated nausea.
Ms Skaf described poor memory and there is sometimes disequilibrium.
Ms Skaf described symptoms of intermittent activity related pain at the right shoulder. She has regained a good range of motion. She described pain at the extreme range of elevation.
Ms Skaf described similar activity related pain at the left shoulder with mild stiffness.
On direct enquiry, Ms Skaf reported intermittent paraesthesia or numbness extending from the elbows to the fingertips in a rather global pattern without localisation. Sometimes, she experiences paraesthesia when gripping objects. She sometimes wakes with hand paraesthesia and shakes her hands relieving the symptoms.
There was no area of permanent numbness.
Ms Skaf described a sitting tolerance of one hour, a driving tolerance of 30 minutes and a walking tolerance of 10 minutes. The latter is limited by lower back pain and general fatigue. She said that she climbs stairs slowly.
Ms Skaf described constant back pain extending from the upper back to the lumbar region, at an average intensity of 8/10. There was exacerbation of lower back pain with bending and twisting. Sometimes, there was a sensation of global numbness in the left or right leg. There were no complaints of lower limb radicular pain.
There was occasional anterior chest pain. There was no respiratory difficulty.

Functional capacity and reported tolerances

Ms Skaf is right hand dominant.
Ms Skaf described a sitting tolerance of one hour, a driving tolerance of 30 minutes and a walking tolerance of 10 minutes. The latter is limited by lower back pain and general fatigue. She says that she climbs stairs slowly.
Ms Skaf is independent for activities of self-care.

Social history

Ms Skaf is a single mother with children aged 22 and 18 years, having separated from her husband.
Ms Skaf lives in a house in Edensor Park. She was undertaking domestic chores in a piecemeal fashion until the last few months when she was awarded NDIS assistance.

Vocational history

At the time of the motor accident, Ms Skaf was working as a beauty student. She discontinued her studies thereafter.
In August 2023, Ms Skaf was awarded a disability pension. She told the Panel that this was related to both physical and psychological symptoms.

Clinical examination

General presentation

Ms Skaf was of solid build being 165cm in height and weighing 80kg. She reported that she was 73kg at the date of the motor accident.
Ms Skaf sat comfortably whilst relating the history and transferred freely out of a chair and on and off the examination couch.

Cervical spine

No dysmetria. Flexion and extension were full range with complaint of tightness and sharp pain in the neck at the end of range. Lateral flexion was to two-thirds normal range bilaterally and rotation was two-thirds normal range bilaterally.
The upper limb reflexes were symmetrical. Upper limb power was normal bilaterally. Sensation in the right upper extremity was normal, and on the left side, showed some reduction in the radial fingers of the left hand.
Phalen sign was negative at the wrist. There was a positive Tinel sign over the median nerve at the left wrist.
Upper arm girth: right 31.6cm, left 32cm. Forearm girth: right 25.5cm, left 26cm.

Thoracic spine

Thoraco-lumbar flexion and extension were normal. Thoracic rotation was three-quarters normal range bilaterally with a complaint of cracking sensation. There was no spinal deformity or dysmetria. There was a slight restriction of motion. The thoracic spine was symmetrical.

Lumbar spine

No dysmetria of active movements. Flexion and extension were both three-quarters of normal range with complaint of low back pain on recovery from flexion. Lateral flexion was two-thirds of normal range bilaterally.
Reflexes in the lower limbs were symmetrical. Power was normal in the lower limbs, as was sensation. Sciatic nerve stretch test was negative bilaterally.
Thigh girth: right equals left equals 56cm. Leg girth: right equals left equals 40cm.

Lower extremities

Ms Skaf recalled bruising to one of her legs after the motor accident. There were no current complaints of injuries to the legs and there were no abnormalities on examination of the lower extremities.

Upper extremities (shoulders)

There was tenderness to palpation over the apex of the right shoulder. Range of movement (ROM) was measured with a goniometer.

Shoulder Movements Active ROM Measured
RIGHT Active ROM Measured
LEFT

Flexion 150° 160°

Extension 50° 50°

Adduction 50° 50°

Abduction 140° 160°

Internal Rotation 50° 75°

External Rotation 90° 90°

Sternum/Chest

There was general sternal tenderness and tenderness over the bilateral rib cage. Chest expansion was normal.

Head

There was no ongoing evidence or complaint of the head soreness referred to in the Fairfield Hospital discharge records.

Investigations

Pre-motor accident

23 April 2021: ultrasound right shoulder. Calcific tendonitis of supraspinatus, infraspinatus and subscapularis with no tear. Bursal thickening with impingement.
26 April 2021: ultrasound-guided right subacromial corticosteroid injection.
27 April 2021: CT cervical and thoracic spine and ultrasound left shoulder. The CT scans demonstrated mild cervical degenerative change with regions of mild foraminal stenosis at the left C5/6 with no definite neural impingement. No facet joint degeneration. Mild degenerative change in the thoracic spine with no evidence of neural impingement. The left shoulder ultrasound demonstrated mild calcific tendinosis of supraspinatus and subacromial/subdeltoid bursitis with features of impingement.
4 May 2021: ultrasound-guided left subacromial/subdeltoid bursal corticosteroid injection.

Post motor accident

8 November 2021: MRI cervical spine. Narrowing of C5/6 bilateral neural exit foramina, more seriously affected on the right side. On dynamic movement, there may well be irritation of the right C6 nerve root.
20 February 2022: MRI thoracic and lumbar spine. Clinical indication of ongoing severe pain after a motor vehicle accident. Ligamentum flavum thickening and mild facet joint arthropathy at L4/5 with a low-grade disc bulge and minimal canal narrowing but no nerve root impingement. No other evidence of disc disease and no evidence of traumatic osseous injury.
4 July 2022: ultrasound-guided right subacromial/subdeltoid bursal injection of corticosteroid.
12 July 2022: ultrasound-guided left subacromial/subdeltoid bursal injection of corticosteroid.

Comments on consistency

Ms Skaf presented in a straightforward manner with no evidence of inconsistency in her presentation.

DIAGNOSIS, CAUSATION AND REASONS

Cervical spine

The diagnosis is one of a soft tissue injury to cervical spine with an aggravation of pre-existing symptomatic degenerative changes. The motor accident was the cause of the soft tissue injury to the cervical spine, in that, it aggravated a pre-existing symptomatic condition.
Neck pain was denied to the ambulance paramedics but neck pain was referred to in the Fairfield Hospital discharge summary and in the clincal records of her treating general practitioners.
The Panel is satisfied that the mechanism of the motor accident, that is, the collision with the tree could have caused or contributed to the soft tissue injury to Ms Skaf’s cervical spine and further, that it did cause such injury.

Thoracic spine

The diagnosis is one of a soft tissue injury to the thoracic spine.
The Panel is satisfied that the mechanism of the motor accident, that is, the collision with the tree could have caused or contributed to the soft tissue injury to Ms Skaf’s thoracic spine and further, that it did cause such injury.

Lumbar spine

The diagnosis is one of a soft tissue injury to the lumbar spine with an aggravation of pre-existing symptomatic degenerative changes.
The lumbar spine was symptomatic prior to the motor accident, as acknowledged by Ms Skaf. Back pain was referred to in the Fairfield Hospital discharge summary shortly after the motor accident.
The Panel is satisfied that the mechanism of the motor accident, that is, the collision with the tree could have caused or contributed to the soft tissue injury to Ms Skaf’s lumbar spine and further, that it did cause such injury.

Lower extremities

Whilst there may have been injuries to both legs in the motor accident, there was no current evidence of soft tissue injuries to the right leg or left leg.

Upper extremities (shoulders)

The diagnosis is one of soft tissue injuries to the bilateral shoulders with aggravations of pre-existing symptomatic conditions of rotator cuff tendonitis, bursitis with impingement in both shoulders.
There was evidence of pre-existing injuries to the shoulder based on the imaging brought to the Panel re-examination. Although the Panel requested but did not receive any general practitioner records pre-dating the motor accident, the imaging makes it clear that both shoulders were symptomatic prior to the motor accident and had been the site of corticosteroid injections to the subacromial/subdeltoid bursae. Bilateral shoulder pain was referred to in the Fairfield Hospital discharge summary.
The Panel is satisfied that the mechanism of the motor accident, that is, the collision with the tree could have caused or contributed to the soft tissue injuries to Ms Skaf’s shoulders and further, that it did cause such injuries.

Sternum/chest

The diagnosis is one of a soft tissue injury to the sternum/chest.
Seatbelt abrasion was referred to in the ambulance records. Chest X-rays to check for bony injury and any cardiothoracic condition was performed at Fairfield Hospital on the day of accident, although the Fairfield Hospital clinical records indicated no anterior or posterior chest wall tenderness.
The Panel is satisfied that the mechanism of the motor accident, that is, the collision with the tree could have caused or contributed to the soft tissue injury to Ms Skaf’s sternum/chest and further, that it did cause such injury.

Head

The diagnosis is one of a soft tissue injury to the head.
There was reference to soreness in the head in the Fairfield Hospital discharge summary, prompting a CT scan of the head.
The Panel is satisfied that the mechanism of the motor accident, that is, the collision with the tree could have caused or contributed to the soft tissue injury to Ms Skaf’s head and further, that it did cause such injury.

THRESHOLD INJURY?

Cervical spine

The cervical spine injury is a threshold injury.
There was no evidence of cervical radiculopathy. None of the clinical signs referred to in cl 5.8 of the Guidelines were found on examination.
The right paracentral C5/6 disc protrusion shown on the MRI scan dated 8 November 2021 is a threshold injury because it does not involve complete or partial rupture of muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes.
The disc protrusion does not indicate any discontinuity in the annulus of the cervical disc to indicate rupture of the fibro-cartilaginous margin of the disc. The Panel notes that Medical Assessor Cameron designated the C5/6 disc lesion as an acute disc herniation. However, in the MRI scan dated 8 November 2021, the radiologist did not refer to the acute herniation of a disc at C5/6. Bone marrow returned a normal MR signal, indicating the absence of oedema which would be expected if the injury was acute. There is also noted to be a moderate decrease in intervertebral disc height space. The Panel note that there is two level disc pathology including a right paracentral disc protrusion at C5/6 against the background of broad based disc bulge and narrowing of both exit foramina, with the overall appearance more consistent with a degenerative process. The Panel note a further disc protrusion on the left at C6/7. Taken together the Panel do not find that the appearances are consistent with an acute traumatic disc lesion.

Thoracic spine

The parties did not dispute that the injury to the thoracic spine is a threshold injury.

Lumbar spine

The parties did not dispute that the injury to the lumbar spine is a threshold injury.

Lower extremities

The parties did not dispute that the injuries to the legs are threshold injuries.

Upper extremities (shoulders)

The parties did not dispute that the injuries to the shoulders are threshold injuries.

Sternum/chest

The parties did not dispute that the injury to the sternum/chest is a threshold injury.

Head

The parties did not dispute that the injury to the head is a threshold injury.

FINDINGS

The Panel adopts the re-examination findings and conclusions of Medical Assessor Home and Medical Assessor Oates based on their examination and specific findings pertaining to diagnosis and causation.
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[27] and Insurance Australia Ltd v Marsh.[28]
[27] Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45].
[28] Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21], [64].
The Panel determines that Ms Skaf sustained a soft tissue injury to the cervical spine with aggravation of pre-existing symptomatic degenerative changes as a result of the motor accident.
The Panel determines that the soft tissue injury to the cervical spine with aggravation of pre-existing symptomatic degenerative changes is a threshold injury for the purposes of the MAI Act.

The Panel determines that Ms Skaf also sustained soft tissue injuries to the bilateral shoulders, thoracic spine, lumbar spine, right leg, left leg, head and sternum/chest as a result of the motor accident and notes that the parties do not dispute that such injuries were threshold injuries for the purposes of the MAI Act.

CONCLUSION

The certificate of Medical Assessor Cameron dated 26 September 2022 is revoked.
The Panel certifies that the injuries to the cervical spine, bilateral shoulders, thoracic spine, lumbar spine, right leg, left leg, head and sternum/chest sustained by Ms Skaf in the motor accident are threshold injuries for the purposes of the MAI Act.

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	150°	160°
Extension	50°	50°
Adduction	50°	50°
Abduction	140°	160°
Internal Rotation	50°	75°
External Rotation	90°	90°

[2023] NSWPICMP 625

27 November 2023