Allianz Australia Insurance Limited v Yaqo
[2025] NSWPICMP 293
•29 April 2025
| DETERMINATION OF REVIEW PANEL | |
| CITATION: | Allianz Australia Insurance Limited v Yaqo [2025] NSWPICMP 293 |
| CLAIMANT: | Halo Yaqo |
| INSURER: | Allianz Insurance Australia Ltd |
| REVIEW PANEL | |
| PRINCIPAL MEMBER: | John Harris |
| MEDICAL ASSESSOR: | David Gorman |
| MEDICAL ASSESSOR: | Alan Home |
| DATE OF DECISION: | 29 April 2025 |
| CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); motor accident; rear end collision; claimant re-examined; early complaint of left sided low back pain into left hip region; MRI scan showed left sided annular fissure at L4/5; scan otherwise normal; no prior back pain; clinical findings of the Review Panel and original Medical Assessor support source of pain from the L4/5 annular tear; Held – motor accident caused annular tear at L4/5; non-threshold injury within the meaning of the Act; MAC confirmed. |
| DETERMINATIONS MADE: | Medical Assessment – Threshold injury Review Panel assessment of threshold injury Replacement certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel confirms the certificate dated 21 March 2024. |
REASONS
BACKGROUND
Ms Halo Yaqo (the claimant) suffered injury in a motor accident on 27 May 2023 when the insured vehicle rear ended the claimant’s stationary vehicle.[1]
[1] Claimant’s bundle, p 3.
The insurer is liable to pay to Ms Yaqo 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 the injuries are classified as a “threshold 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 threshold injury for the purposes of the Act”.
The following injuries were referred in the medical dispute:
(a) cervical spine;
(b) shoulders, and
(c) lumbar spine.
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.
Whether a person has only suffered threshold injuries as a result of a motor vehicle accident affects the entitlement to both statutory benefits and damages. For threshold injuries the entitlement to statutory benefits ceases after either 26 or 52 weeks, depending on the date of injury and the injured person cannot recover damages under the MAI Act if the “only injuries resulting from the motor accident were threshold injuries”.[3]
[3] Section 4.4 of the MAI Act.
STATUTORY AMENDMENT
The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From
1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
For motor accidents occurring on or after 1 April 2023, the entitlement to statutory benefits for a threshold injury have increased from 26 weeks to 52 weeks.
Accordingly, an injury which does not fall within the definition of a threshold injury (a non-threshold injury) means that a claimant has an entitlement to claim damages and, subject to other exclusions, receive statutory entitlements beyond either the 26-week or 52-week limitation period.
ORIGINAL MEDICAL ASSESSMENT
The medical dispute was referred to Medical Assessor McGrath who issued a Medical Assessment Certificate dated 21 March 2024 (the medical assessment certificate).[4]
[4] Claimant’s bundle, p 39.
The Medical Assessor noted normal range of neck movement with normal neurological examination. Examination of the lumbar spine showed reduced straight leg raising in the left, tenderness in the left buttock region with normal neurological examination of the lower limbs.
Assessment of the shoulder showed normal range of movement without any localised pain to the shoulders and some discomfort in the neck region.
The Medical Assessor provided the following reasons:[5]
“Ms Yaqo was involved in an MVA on 27 May 2023. This was a rear end collision which initially did not lead to significant pain. She was mostly concerned about possible aggravation to a caesarean section which had been bothering her. The next couple of weeks, she rested at home before seeing her general practitioner. The doctor features picture diagnosed trouble with the shoulder, neck and lower back. She was investigated by Dr Bazina, a neurosurgeon, it could not find any surgical condition but it was noted that there was a small far left annular fissure of the L4/5 intervertebral disc. This lesion is consistent with the current clinical pattern symptoms on the left-hand side of the back descending into the buttock region. The absence of signs in the right hand side supported physical origin to her symptoms.”
[5] Claimant’s bundle, p 44.
The Medical Assessor concluded that there was sufficient clinical evidence that the claimant had damaged the L4/5 intervertebral disc consistent with the clinical picture. The Medical Assessor noted that annular fissures can arise through traumatic origin with degenerative causes, there was no history of prior back pain which would support a degenerative origin and concluded that the claimant had damaged the L4/5 intervertebral disc which was not a non-threshold injury within the meaning of the MAI Act.
OTHER MEDICAL ASSESSMENT
Medical Assessor Sidorov concluded that the motor accident caused a major depressive disorder which is a non-threshold injury.[6]
[6] Claimant’s bundle, p 47.
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 medical assessment certificate.
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.
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[7] that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Personal Injury Commission (Commission).
[7] 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.[8]
[8] 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.[9]
[9] 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.[10]
[10] Section 7.26(6) of the MAI Act.
The parties filed bundles of documents for the Panel’s consideration.
STATUTORY PROVISIONS
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “threshold 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 threshold 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)” 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 MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the 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 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 threshold psychological or psychiatric injury caused by the motor accident.
5.4 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.”
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 threshold injury. An injury resulting in radiculopathy will not be classified as a threshold 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 threshold injury.[11]
[11] Clause 5.9 of the Guidelines.
Sections 5D and 5E of the Civil Liability Act 2002 apply to the MAI Act.[12] In Raina v CIC Allianz Insurance Ltd[13] Campbell J stated:
“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.”
[12] See s 3B(2) of the Civil Liability Act 2002.
[13] [2021] NSWSC 13 (Raina) at [65].
Further, cls 6.5 to 6.7 of the Guidelines refer to causation of both injury and whether the degree of permanent impairment is caused by injury.
Clause 6.7 of the Guidelines provides:
“There is no simple common test of causation that is applicable in 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 the sole cause as long as it is a contributing cause, which is more than negligible.”
SUBMISSIONS
Claimant’s submissions dated 20 December 2023[14]
[14] Claimant’s bundle, p 16.
The claimant alleged that the motor accident caused injuries to the neck, both shoulders, arms, hands, whole back with radiating symptoms and psychological sequelae.
The claimant referred to complaints of radiating symptoms in the neck and both shoulders on a daily basis and the MRI scan of the lumbar spine dated 27 June 2023 which identified mild disc bulges and an annular fissure.
The claimant noted that she was treated by Dr Renata Bazina, neurologist.
Reference was made to various psychological symptoms which is outside the scope of the medical dispute before this Panel.
Insurer’s submission dated 29 January 2024[15]
[15] Insurer’s bundle, p 3.
The insurer submitted that the photographs show a low-speed impact. The claimant self-presented at the emergency department at Liverpool Hospital on the day of the accident with lower abdominal and lumbar spine pain.
The insurer noted that the claimant first attended upon Dr Sorani on 20 June 2023 complaining of left lower back pain radiating to the left leg, neck pain and left shoulder pain without radiation to the arms. Neurological examination performed by the general practitioner (GP) was normal.
The insurer noted the MRI scans of the lumbar spine and cervical spine dated 27 June 2023 and subsequent attendances upon the GP.
The insurer noted that the claimant commenced physiotherapy treatment on 27 July 2023 and she complained of neck and shoulder pain radiating to the fingers and low back pain. The provisional diagnosis was a whiplash injury with physiotherapy continuing up until
31 October 2023.The claimant attended Dr Bazina on 25 September 2023 who reported that the lumbar spine scan was normal and the cervical spine scan revealed an isolated left C5/6 disc osteophyte. The doctor noted abnormal illness behaviour during the consultation and advised that follow-up is not required.
The insurer disputed there was a cervical spine injury noting the absence of complaint when the claimant attended Liverpool Hospital on the day the motor accident.
The insurer disputed that the claimant sustained a shoulder injury with the first shoulder complaints been recorded on 20 June 2023 and then with respect to the left shoulder. It otherwise noted injuries are limited to soft tissue injuries as there was no evidence of any pathology as required by the MAI Act or the Guidelines.
The insurer submitted that any injury to the lumbar spine was a soft tissue injury and that the annular fissure at L4/5 was an incidental finding. It noted that Dr Bazina reported that the MRI scan of the lumbar spine was normal.
The insurer noted that the claimant complained of referred symptoms but there is no evidence of radiculopathy as defined in cl 5.8 of the Guidelines.
Insurer’s submission dated 3 April 2024[16]
[16] Insurer’s bundle, p 9.
These submissions were filed seeking leave to review the medical assessment.
The insurer submitted that the Medical Assessor’s conclusion that the annular fissure at L4/5 was caused by the accident is inconsistent with Dr Bazina’s findings.
The insurer submitted that the causation findings did not comply with s 5D of the Civil Liability Act 2002 or otherwise explain his path of reasoning informing the conclusion that the motor accident caused the disc injury identified in the MRI scan.
MATERIAL BEFORE THE REVIEW PANEL
Pre-accident medical records
The clinical record of the GP dated 30 January 2023 noted pain in the right shoulder which was localised and free movement. The claimant was prescribed Voltaren rapid.[17]
[17] Claimant’s bundle, p 56.
Post-accident medical records
On 27 May 2023 the GP referred to the motor accident and recorded no head or chest injury, with pain in lower abdomen and lower back from left side. The GP referred the claimant to the emergency department.[18]
[18] Claimant’s bundle, p 56.
Photographs of the insured vehicle do not appear to show any damage.[19]
[19] Insurer’s bundle, pp 35-36.
The emergency department discharge referral dated 27 May 2023 referred to the claimant’s attendance at hospital on that day with lower abdominal pain and lumbar paraspinal pain following a low-speed trauma.[20] The clinical notes refer to no cervical spine tenderness or pain, with abdominal tenderness with no signs of trauma and paraspinal lumbar tenderness.
[20] Claimant’s bundle, p 27.
On 20 June 2023 the GP recorded that the claimant had been having dizziness since the motor vehicle accident with pain in the left lower back spreading to the left leg and neck pain and left shoulder pain. The records refer to localised tenderness in the paracervical cervical region, localised tenderness in the lower back with nil focal neurological findings.[21]
[21] Claimant’s bundle, p 56.
A certificate of capacity dated 20 June 2023 referred to the motor accident causing multiple cervical and lumbosacral disc prolapses with anxiety and depression.[22]
[22] Claimant’s bundle, p 77.
The claim form dated 24 July 2023 referred to the motor accident causing injuries to the neck, shoulders, arms, hands, whole back and lower limbs, stomach and psychological.[23]
[23] Claimant’s bundle, p 3.
The MRI scan of the lumbar spine dated 27 June 2023 noted a small diffuse disc bulge at L3/4, small diffuse disc bulge, larger in the left foraminal region at L4/5 with an underlying annular fissure in the left far lateral region.[24]
[24] Claimant’s bundle, p 34.
The MRI scan of the cervical spine dated 27 June 2023 noted a tiny broad-based posterior disc osteophyte complex at C4/5 with no central canal or neural exit foraminal narrowing, broad-based posterior disc osteophyte complex, larger in the left at C5/6 with contact on the exiting left C6 nerve and disc osteophyte complex at C6/7 with no neural contact.[25]
[25] Claimant’s bundle, p 35.
On 11 July 2023 the GP noted ongoing back and neck pain with stress, anxiety, sleeping disturbances and heart racing since the motor accident.[26]
[26] Claimant’s bundle, p 57.
On 25 July 2023 the GP referred the claimant for physiotherapy of the neck and back noting “multiple disc problems as a result of a MVA”.[27]
[27] Claimant’s bundle, p 32.
An X-ray dated 2 September 2023 noted a clinical history of pain and tenderness in the region since the accident. No fracture or dislocation was shown on the X-ray.
Subsequent GP records refer to ongoing neck and back pain.
Dr Renata Bazina, neurosurgeon, examined the claimant on 21 September 2023. The doctor opined that the MRI of the lumbar scan was normal, and the cervical MRI scan showed an isolated left C5/6 disc osteophyte.
Dr Bazina opined that the claimant showed evidence of abnormal illness behaviour during the consultation although referred the claimant for a left C5/6 foraminal injection.
An ultrasound of the abdominal wall dated 21 February 2024 noted the postsurgical scarring at the caesarean section with no soft tissue abnormality.[28] On 4 March 2024, Dr Youkhanis, surgeon, reviewed the abdominal ultrasound and confirmed that it did not show any abnormality of the suprapubic region. The doctor noted the claimant was seeing a plastic surgeon for abdominoplasty.[29]
[28] Claimant’s bundle, p 120.
[29] Insurer’s bundle, p 109.
On 1 March 2024 the GP noted that the claimant landed on her left shoulder recently with some tenderness and restriction of movement.[30] An X-ray of the left shoulder following the fall was suggestive of a very slight posterolateral subluxation of the humeral head.[31]
[30] Claimant’s bundle, p 60.
[31] Claimant’s bundle, p 73.
Dr Mpho Banda, occupational physician, provided a report dated 24 April 2024.[32] The doctor diagnosed cervical pain with radiculopathy, lower back pain with radiculopathy, abdominal wound dehiscence and low mood and anxiety. There were no neurological findings of radiculopathy within the report although there were references to radiating pain to the left leg and left shoulder.
[32] Claimant’s bundle, p 163.
A report from the physiotherapist dated 25 June 2024 noted complaints of left-sided neck pain impacting the left shoulder movement and lower back pain impacting left-sided back following the motor accident.[33]
[33] Claimant’s bundle, p 125.
A report from Dr Vahid Mohabbati, pain physician, dated 11 July 2024, noted the claimant presented with chronic musculoskeletal pain syndrome affecting the neck, back and left leg following the motor accident.
Physical examination suggested tenderness on the left side facet joints at C3/4, C4/5 and C5/6 and a positive FABER and thrust test indicating sacroiliac joint dysfunction in the left back with positive straight leg raising test indicating possible lumbar disc herniation or nerve root irritation in the left leg.
The doctor arranged a bone scan along with an MRI scan of the whole spine to further evaluate the sources of the chronic pain.
An Allied health recovery request for physiotherapy treatment dated 27 August 2024 referred to the motor accident causing neck and lower back injury with disc bulges in the lower lumbar spine and narrowing at C5/6 and C6/7.[34]
[34] Claimant’s bundle, p 21.
RE-EXAMINATION
The claimant was examined by Medical Assessor Gorman who provided the following report:
“Mrs Yaqo attended with her daughter and the interpreter, Claudia El Brihi.
HISTORY
Pre-accident medical history and personal details.
Ms Yaqo is a 43 year old women.
She is married with 4 children – the eldest is 21 and the youngest 10 years.
She is a heavy smoker smoking 2 packets of cigarettes per day. She has occasional alcohol.
She was born in Iraq and came to Australia in 2009. She has not worked in Australia.
She has been well. She has had 4 Caesarean Sections.
She had a previous fall leading to an operation on her right thumb.
She has asthma.
History of the motor accident
On 27 May 2023 she was the driver of a RAV 4 SUV which was stationary and hit from behind by a utility.
The car was knocked forward a few meters. She reported that she could drive from the accident but the boot would not close. She drove on to her friends house.
History of symptoms and treatment following the motor accident
She was somewhat unsteady after driving and was then taken to Liverpool Hospital. She was examined and investigated with discharge after observation. She mainly complained of abdominal pain and lumbar pain.
With ongoing spinal pain she was referred for an MRI.
Her GP also arranged physiotherapy.
She was referred to Dr Renata Bazina (Neurosurgeon) who suggested a left cervical foraminal injection (which Mrs Yaqo did not have).
She had continuing nightmares, flashbacks and insomnia – she saw a psychologist.
She saw Dr Vahid Mohabbati (Pain Specialist) on 11 July 2024. He noted left sided cervical tenderness and left sided lumbar pain with radiation. He felt that this was a ‘whiplash’ injury of the ‘spine’ and suggested a multi-disciplinary approach to her pain.
Details of any relevant injuries or conditions sustained since the motor accident
Nil noted.
Current symptoms
She continues to have widespread pain involving the neck, low back and both shoulders.
The pain was particularly down the left side she reported. She said that when she woke the morning of the examination the left arm was swollen and numb.
Current and proposed treatment
She does not take medications except for Panadol – everything else causes heartburn.
She had 5 sessions of physiotherapy but stopped because it made her feel worse.
She uses the asthma puffer.
PHYSICAL EXAMINATION
General
She was short with a height of 148cm and a weight of 73.1kg.
She walked with a limp favouring her left leg. She held the left arm at her side and it did not swing normally as she walked.
She indicated pain in the left arm and left leg – she said her ‘whole left side is affected’.
Cervical spine
She had marked restriction in movement in the cervical spine to ¼ normal. There was no dysmetria.
Power and reflexes were normal. There was no wasting. Cervical foraminal compression test was negative.
There was abnormal sensation in the whole left arm – it was not in a dermatomal distribution. Right sided sensation was normal.
Lumbar spine
There was tenderness over the whole lumbar spine extending out to the left lumbar region more than the right.
Her lumbar flexion was to ¼ normal. She said that any greater flexion caused increased pain. All other lumbar spinal movements were restricted to ¼ normal.
Power, sensation and reflexes were normal. There was no wasting. Straight leg raising was to 70 degrees on the right and only 30 degrees on the left; these movements were limited by low back pain.
Shoulders
The shoulder movements on the left were restricted and variable. The left shoulder could only elevate to 70 degrees as a maximum – the right shoulder was normal. The ranges are outlined in the table below.
SHOULDER MOVEMENT
Right (degrees)
Left (degrees)
Flexion
180
70
Extension
50
20
Abduction
180
70
Adduction
50
20
Internal rotation
80
70
External rotation
90
90
Comments on consistency
She was inconsistent in shoulder and spinal movements. She was asked why her neck and arm movements were much reduced from previous examinations. She said that she had woken with left arm pain and numbness and that was why the symptoms were worse during this examination on that side.
In the lumbar spine and left lower limb she however has had consistent left sided symptoms however since the accident.
Summary of radiological imaging reports
27 June 2023 – MRI Lumbar spine - mild disc bulges at the L3/4 and L4/5 levels as well as a small L4/5 annular fissure in the far-left lateral region. There are no signs of neural impingement but there is neural foraminal narrowing at both the L3/4 and L4/5 on the left.
27 June 2023 – MRI Cervical spine – disc/osteophytes most significant at the C5/6 level; no nerve root compression.
DETERMINATIONS – THRESHOLD INJURY
Diagnosis and reasons
The following regions were referred for assessment and are listed in turn with the diagnoses:
Cervical spine: soft tissue injury. There is no radiculopathy.
Lumbar spine: L4/5 annular fissure. This fissure was noted on the MRI on 26 June 2023 (one month after the accident). There is no radiculopathy.
Shoulders: referred pain from the cervical spine - she had pain in both shoulders which varied over time from the right to the left being most severe.
Causation and reasons
Cervical spine: she has had ongoing pain in the cervical spine since the accident caused by the accident.
Lumbar spine: she has ongoing pain in the lumbar spine caused by the accident. She has widespread symptoms with pain behaviours and variability in examination findings. She has features of ‘central sensitisation’ with ‘somatisation’ of her psychological distress. However, despite these behaviours, she has consistently had left lumbar pain since the subject accident. The Panel believes that the lumbar spine was injured in the accident and the effects of that injury remain.
Shoulders: the mechanism of the accident did not suggest possible injury to the shoulders. Her initial complaints at the hospital were not in the shoulders - instead the symptoms were in the lumbar spine and lower abdomen. The pain in the shoulders and limitation in movement has varied from the left to right sides. There have been no investigations of the shoulders. The pain in the shoulders and variable restriction in movement is due to the referred pain from the cervical spinal soft tissue injury.
Summary of injuries referred by the parties
The following WERE caused by the motor accident:
Cervical spine – soft tissue injury.
Lumbar spine – L4/5 annular fissure.
The following injuries WERE NOT caused by the motor accident:
Shoulder pain and discomfort associated with radiating symptoms in the neck and both shoulders.
Threshold Injury
In the cervical spine there is no radiculopathy. Investigations do not reveal any partial or complete ruptures in the fibrocartilage of the cervical discs. The disc/osteophytes complexes seen are degenerative. The cervical spine therefore is a threshold injury.
In the lumbar spine there is no radiculopathy. However, she has had persisting left lower lumbar symptoms and referred symptoms to the left leg. The annular fissure, which is a partial rupture of a fibrocartilage, is on the left side in the L4/5 disc. While annular fissures can be degenerative, there are no other fissures seen and the remainder of the lumbar spine does not show marked degenerative changes – there are disc bulges only.
The motor vehicle accident could have caused an annular fissure. On balance, noting the consistent history of left sided lumbar and leg symptoms, the Panel believes that the annular fissure was caused by the accident. Therefore, this is a non-threshold injury.
CONCLUSION – THRESHOLD INJURY
The following injury is a threshold injury:
Cervical spine – soft tissue injury.
The following is a non-threshold injury:
Lumbar spine – L4/5 annular fissure.”
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 threshold or not threshold injuries 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[35] and Insurance Australia Ltd v Marsh.[36]
[35] [2021] NSWCA 287 at [40], [41] and [45].
[36] [2022] NSWCA 31 at [11], [21] and [64].
The Panel adopts the reasoning in David v Allianz Australia Ltd[37] that radiculopathy can be present at any time to establish that the injury is not a threshold injury for the purposes of the MAI Act.
[37] [2021] NSWPICMP 227 at [84]-[104].
We adopt the reasoning in Lynch v AAI Ltd[38] that the claimant bears the onus of proof in establishing that any injury is not a threshold injury for the purposes of the MAI Act. That conclusion is consistent with the observations in Briggs v IAG Ltd (No 2):[39]
“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.”
[38] [2022] NSWPICMP 6 at [44]-[62].
[39] [2022] NSWSC 372 (Briggs (No 2)) at [73].
The Panel adopts the examination and other findings of Medical Assessor Gorman supplemented by the following reasons.
We are satisfied that the motor accident caused the annular tear at L4/5 for the following reasons.
First, the claimant was asymptomatic in the lumbar spine prior to the motor accident.
Secondly, the claimant immediately complained to the GP and to the hospital of lumbar spine symptoms radiating to the left side.
Thirdly, the clinical findings of both Medical Assessor Gorman and previously to Medical Assessor McGrath was that the pain was consistent with a left sided annular tear (fissure) at L4/5. Dr Mohabbati noted similar findings.
Fourthly, the MRI scan is basically normal with the presence of pathology at L4/5. Whilst annular tears can be degenerative and asymptomatic, this is a factor suggestive of a traumatic origin.
Fifthly, the nature of the motor accident could cause pathology in the lower lumbar spine.
We note that Dr Bazina opined that the lumbar MRI scan was normal. We have explained why our opinion differs.
An annular tear is a partial rupture of fibrocartilage material of the L4/5 disc. Accordingly we are satisfied that the motor accident caused a partial rupture of cartilage which is not a threshold injury as defined in the MAI Act.
Other injuries
We do not accept that the claimant has, or ever had, two signs of radiculopathy as defined in the Guidelines.
We also do not accept that the motor accident caused trauma to the shoulders. The symptoms in the shoulders are probably referred pain from the cervical spine.
CONCLUSION
For these reasons the Panel confirms the medical assessment certificate.
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