Apostolov v Allianz Australia Insurance Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Apostolov v Allianz Australia Insurance Limited [2024] NSWPICMP 54
CLAIMANT:	Krsto Apostolov
INSURER:	Allianz Insurance (Australia) Ltd
REVIEW PANEL
MEMBER:	Ray Plibersek
MEDICAL ASSESSOR:	Christopher Oates
MEDICAL ASSESSOR:	Drew Dixon
DATE OF DECISION:	2 February 2024
CATCHWORDS:	MOTOR ACCIDENTS – Claimant’s car was stopped at traffic lights when it hit from behind by a bus in a low speed accident; Held – original medical certificate revoked regarding permanent impairment; original medical certificate regarding proposed treatment and care of spinal surgery also revoked; on review, the Panel found that the injuries to the claimant’s head, cervical spine and lumbar spine are soft tissue injuries caused by the motor accident and are threshold injuries; the injuries to the left and right shoulders are soft tissue injuries not caused by the motor accident; causation of claimant’s injuries considered; the Panel should make ‘a non-medical informed judgement’ as to whether it was likely that the motor accident caused or contributed to claimant’s injury; the Panel also found that the L4/5 decompression surgery as proposed treatment and care does relate to the injury caused by the motor accident and is reasonable and necessary in the circumstances; Briggs v IAG Limited trading as NRMA Insurance (No. 2) and Briggs v IAG Limited trading as NRMA Insurance (No. 3) considered and applied as cases on causation.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. The Review Panel revokes the certificate of Medical Assessor Ian Cameron dated 20 February 2022 and issues a replacement certificate determining that: (a) the following injuries caused by the motor accident are threshold injuries (formerly minor injuries): • head – soft tissue injury; • cervical spine – soft tissue injury; and • lumbar spine – soft tissue injury. (b) The following injuries were not caused by the motor accident: • left and right shoulders– soft tissue injury. 2. The Review Panel revokes the certificate of Medical Assessor Ian Cameron dated 20 February 2022 regarding treatment and care and issues a replacement certificate determining that: (a) The following treatment and care of a: · surgery - L4/5 decompression surgery, does relate to the injury caused by the motor accident. (b) The following treatment and care of a: · surgery - L4/5 decompression surgery, is reasonable and necessary in the circumstances.

STATEMENT OF REASONS

INTRODUCTION

On 9 February 2021, Mr Krsto Apostolov (the claimant) was driving a VW Tiguan Wagon with his seatbelt on. He was stopped at traffic lights at the intersection of Chapel Street and Hume Highway Bankstown when his car was hit from behind by a bus. His car was pushed about
5-6m into the intersection.
After the accident Mr Apostolov was taken to Liverpool Hospital. The Emergency Department (ED) discharge referral from Liverpool Hospital dated 9 February 2021 contained the following description of the accident: “… Very low speed MVA. Pt was at amber light and was hit from behind by a bus low speed 5- I0kmp.h. PT was wearing seatbelt -no-head injury. No LOC.”[1]
[1] Claimant’s bundle A 9 p 80.
Allianz Insurance (Australia) Ltd (the insurer) is the relevant insurer with liability to pay any damages to Mr Apostolov under the Motor Accident Injuries Act 2017 (MAI Act).
By letter dated 16 July 2021 the insurer wrote to the claimant and advised that the proposed L4/5 decompression surgery is not considered to be reasonable and necessary treatment and care.
In an email dated 12 August 2021 the claimant sought an internal review of this decision The insurer determined its internal review decision on 26 August 2021.[2] The outcome of the internal review was that the decision to decline the L4/5 decompression surgery was confirmed.
[2] Claimant’s bundle A 7 p 34.
By letter dated 18 August 2021, the insurer wrote to the claimant advising that they would not accept liability for payment of statutory benefits beyond 26 weeks.[3]
[3] Claimant’s bundle A 2 p 5.
The insurer determined its internal review decision on 28 September 2021.[4] The outcome of the internal review was that the minor injury determination was confirmed.
[4] Insurer’s bundle A 4 pp 9-29.
The claimant sought a medical assessment of his head, shoulders and spinal injuries. The claimant was medically assessed by Medical Assessor Ian Cameron on 7 February 2023.
Medical Assessor Ian Cameron issued a certificate dated 20 February 2023.[5] In that certificate he certified that the following injuries were caused by the motor accident: head – soft tissue injury; cervical spine – soft tissue injury; left and right shoulders – soft tissue injury; and lumbar spine – soft tissue injury were all a minor injury for the purposes of the MAI Act. Medical Assessor Cameron also certified that the treatment and care of L4/5 decompression surgery does not relate to the injury caused by the motor accident and is not reasonable and necessary.
[5] Claimant’s bundle AD 3 pp 12-17.
Under recent legislative amendments, a “minor injury” is now known as a “threshold injury” and “minor injuries” are now known as “threshold injuries”.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter, including “(e) whether the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[6]
On 17 March 2023 the claimant filed an application with the Personal Injury Commission
(the Commission) seeking a Panel review of the certificate of Medical Assessor Cameron.
ASSESSMENT UNDER REVIEW
[6] Section 7.20 of the MAI Act.
The dispute was initially referred to Medical Assessor Cameron who assessed Mr Apostolov and issued a certificate dated 20 February 2023.
The injuries referred for assessment included: head, cervical spine, lumbar spine, left and right shoulders.
Medical Assessor Cameron medically examined the claimant on 7 February 2023. He referred to the history of the motor accident, the history of symptoms and treatment following the motor accident, detailed the current symptoms and set out the current and proposed treatment.
Medical Assessor Cameron certified that the following injuries were caused by the motor accident: head – soft tissue injury; cervical spine – soft tissue injury; left and right shoulders– soft tissue injury; and lumbar spine – soft tissue injury were all a minor injury for the purposes of the MAI Act. Medical Assessor Cameron also certified that the treatment and care of L4/5 decompression surgery does not relate to the injury caused by the motor accident and is not reasonable and necessary.
Medical Assessor Cameron’s diagnosis was that in the motor vehicle crash on 9 February 2021, Mr Apostolov sustained soft tissue injuries to his cervical and lumbar spinal regions. He also found that there is no convincing evidence that Mr Apostolov sustained a significant injury to either shoulder or his head. Mr Apostolov could have had a soft tissue injury to his head. There was a known compression fracture of L1 and spinal degenerative disease. This was not materially exacerbated by the motor vehicle crash. Medical Assessor Cameron found that the L4/5 decompression surgery surgery is not related to the motor vehicle crash.

REVIEW PROCEDURE

An application for review of the medical assessment of Medical Assessor Cameron was lodged on 17 March 2023 which is within 28 days of the date on which the certificate was made available to the parties.
On 29 May 2023 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel). The delegate’s reasons were that the Medical Assessor “…did not refer to a post-injury ultrasound which confirmed the claimant had a mid-tendon tear of the right shoulder and a complete tear of the supraspinatus.”
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.[7] Accordingly, the President’s delegate referred the matter to this Panel to assess.
[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 is by way of a new assessment of all matters with which the medical assessment is concerned. 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.
The Panel issued Directions to the parties dated 23 August 2023 directing that it intended to re-examine the claimant.

THRESHOLD INJURY (formerly minor injury) – STATUTORY PROVISIONS

The Motor Accident Injuries Amendment Act 2022 (the 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.
Any reference in these reasons to “minor injury” is taken to be a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “psychological or psychiatric injury that is not a recognised psychiatric illness”.
Sub-section 1.6(2) of the MAI Act defines a “soft tissue injury” as:
“[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 of the MAI Act provides that Regulations may be made to exclude or include a specified injury from being a threshold injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) 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 the motor accident is a threshold injury for the purposes of the MAI Act.
Version 9.1 of the Guidelines commenced on 1 April 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:
“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 injury to the neck or spine cls 5.7, 5.8 and 5.9 of the Guidelines provide:
“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 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.
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.”
ASSESSING THE CAUSATION OF INJURIES
The difficult issue of how medical assessors are required to assess the causation of injuries in a motor accident has been recently considered in a number of cases. Some of these recent cases are referred to below.
In Briggs v IAG Limited trading as NRMA Insurance (No. 2)[10] his Honour Justice Wright stated at [35]:
[10] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.
3.“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. Clauses 6.5 to 6.7 provided:
‘Causation of injury
4.6.5     An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
5.6.6     Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
6.'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:
7.1.        The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
8.2.        The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
9.This, therefore, involves a medical decision and a non-medical informed judgement.
10.6.7     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.’”
In Briggs v IAG Limited trading as NRMA Insurance (No. 2),Wright J set out some fundamental principles of how medical assessors are required to approach the question of causation in accordance with the Guidelines (in the context of errors made by the second review panel). His Honour said, at [75]-[77]:
“75. This being so, it was necessary for the panel to consider whether the motor accident did cause or contribute to Mr Brigg’s condition. This required, not a consideration of material derived as a result of an internet search for ‘all past and recent high-quality research articles pertaining to MRI imaging of the lumbar spine, with a focus on injury, degeneration and pain’, but rather a consideration of the material referred to in cl 5.6 of the Guidelines, namely all the evidence available to the panel including all relevant findings derived from:
(1) a comprehensive, accurate history, including pre-accident history and pre-existing conditions;
(2) a review of all relevant records available at the assessment;
(3) a comprehensive description of the injured person’s current symptoms;
(4) a careful and thorough physical examination; and
(5) diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.
76. In Mr Briggs’s case that would include, without attempting to be exhaustive:
(1) Mr Briggs’s age, circumstances and relevant medical history at the time of the motor accident, including whether there was any previous history of lumbar spine pain;
(2) the particular nature and extent of the accident and the forces that would have been operative on Mr Briggs as a result of the accident; and
(3) Mr Briggs’s circumstances and relevant medical history including the MRI results and results of other medical examinations and testing, after the motor accident.
77. In light of all that material and in accordance with cll 6.6 and 6.7 of the Guidelines, the panel should then have made ‘a non-medical informed judgement’ as to whether it was likely that the motor accident caused or contributed to Mr Briggs’s injury in question.”

In Briggs v IAG Limited trading as NRMA Insurance (No. 3),[11] her Honour Harrison AsJ found that a third review panel’s decision on causation was based wholly on its findings that radiological changes cannot be scientifically proven to be traumatically caused. Her Honour found that in conducting its assessment the third review panel failed to take into account all of the relevant evidence referred to by Wright J in the above passage from Briggs (No. 2). Her Honour then stated:
“42. The third review panel failed to take into account all relevant evidence as required by clause 5.6 of the guidelines,and in light of all that material and in accordance with cll 6.6 and 6.7 of the guidelines, the panel failed to make ‘a non-medical informed judgement’ as to whether it was likely that the motor accident caused or contributed to the plaintiff’s injury.
43. In relation to the finding as to causation of the injury to the lumbar spine, the third review panel asked itself the wrong question and applied the wrong test. In the same way that the second review panel had fallen into error, the third review panel failed to address the question of causation on the balance of probabilities, instead requiring that the claimant establish causation of the disc injury to the level of medical certainty, rather than on the balance of probabilities.”
[11] Briggs v IAG Limited Trading as NRMA Insurance [2024] NSWSC 3 (No. 3) , at [39], [41].
In Briggs v IAG Limited trading as NRMA Insurance (No. 3),[12] her Honour Harrison AsJ referred again to the decision of Wright J in Briggs (No. 2) where his Honour cited the following cases and commented:
“71. The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWLR 238 as follows, at 242:
… it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.
72.    Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].
73.    The second review panel did not address the question of whether on the balance of probabilities the motor vehicle accident caused the annular tear even though there might be no scientific certainty. Furthermore, the second review panel’s reasoning did not reflect the approach to determining causation in cll 6.6 and 6.7 of the Guidelines, which in my view is consistent with the legal principles I have outlined.
74.    For the reasons set out above, the review panel failed to deal with the issue of causation according to law, and, in doing so, constructively failed to exercise its jurisdiction.”
[12] Briggs v IAG Limited Trading as NRMA Insurance [2024] NSWSC 3 (No. 3), at [44].

EVIDENCE BEFORE THE REVIEW PANEL

Application for Personal Injury Benefits
The Application for Personal Injury Benefits dated 18 May 2021 notes the reported injuries as including: shock, head trauma, headache, aggravation of both shoulders, retrolisthesis at C2/C3 and C3/C4, and an aggravation of a chronic L2 wedge compression fracture with a 50% loss in height.
Police and ambulance reports
The ambulance notes dated 9 February 2021 include the following record:
“…pain described as tenderness, denies radiation; neck stiffness; light headed; headache; reduced movement >> cervical through lower lumbar pain post mva low speed rear ended”[13]
[13] Insurer bundle AD 1 R 5 p 37.
There was a police report dated 10 February 2021[14] which reported that:
13.“Police spoke with the doctor who advised that the patient was complaining of slight pain, but stated it was an ongoing pain that he has had for many months. Doctors told police that they are confident that no injuries are from the motor vehicle accident. Police followed up with the hospital later with no ongoing injuries or medication. Police followed up with the [claimant] directly who stated that he does not have any follow up appointments and was not diagnosed with any injuries nor was he prescribed any medication besides Panadol.”
[14] Insurer bundle A1 p 763.
There was a police report dated 28 May 2021.[15] This report noted that the claimant:
“…was taken to Liverpool Hospital with non-life-threatening injuries. BK37 followed the ambulance to Liverpool Hospital to follow up with the patient’s injuries. Police spoke with the doctor who advised that the patient was complaining of slight pain, but stated it was an ongoing pain that he has had for many months. Doctors told police that they are confident that no injuries are from the motor vehicle accident.
Police followed up with the hospital who advised the patient was discharged a short time later with no ongoing injuries or medication.
Police followed up with the VIC directly who stated that he does not have any follow up appointments and was not diagnosed with any injuries nor was he prescribed any medication besides Panadol.”
Hospital reports
[15] Insurer bundle AD 1 R 2 p 11.
The ED discharge referral from Liverpool Hospital dated 9 February 2021 contained the following description of the accident and injuries:
15.“… Very low speed MVA. Pt was at amber light and was hit from behind by a bus low speed 5- I0kmp.h. PT was wearing seatbelt -no-head injury. No LOC…. C Spine mild paraspinal tenderness in upper c spine no seatbelt sign. Chest non tender but c/o pain all over no localisation possible also c/o thoraco lumbar spine pain no specific area of tenderness no pevlic tenderness no Limbs tenderness”[16]
[16] Claimant’s bundle A 9 p 80.
The ED report from Liverpool Hospital concluded that there were no fractures of the cervical spine but there was evidence of multilevel degenerative cervical spine changes.
On 27 February 2021 the Bankstown Lidcombe hospital discharge notes record that the claimant reported bi-lateral flank pain. A CT KUB showed no fat stranding of the renal tract nor any renal calculi. Spinal reconstruction of this scan showed degenerative changes in the spine and a chronic LI fracture, likely all contributing to the patient's pain. The patient was discharged medically stable.[17] The hospital notes also refer to a “… recent MVA with bus striking back of his car 9/02/21 - presented to ED and had CT B and C spine + T+L Spine XR (CTs NAD and XR showed chronic degeneration and chronic wedge fracture Ll, nil acute).”

Treating medical evidence
Pre-accident treating records
[17] Insurer bundle p 15.

There were comprehensive medical records available for the claimant’s medical history prior to motor vehicle accident.
In bundles of documents the parties produced over 1,200 pages of clinical and treating medical records for the claimant prior to the accident. The Panel has reviewed all the pre-accident treating medical records produced by both the claimant and the insurer.
The records of the Hector Street Family Medical Practice and the treating general practitioner (GP) Dr Henry Tan show that from 2005 onwards the claimant has an extensive history of neck pain, shoulder pain and surgery, cervical and lumbar spinal pain and signs of lumbar back nerve root compression.[18]
[18] Claimant’s bundle A 10 pp 86-579.
On 14 November 2017, the claimant’s treating neurosurgeon, Dr Simon McKechnie wrote that he had reviewed the claimant in January 2011 when he decided to proceed with an intersegmental L4/5 laminectomy and rhizolysis. The claimant then changed his mind and decided to proceed with conservative treatment.[19]
[19] Claimant’s bundle A 10 pp 349-355.
In 2012 Dr McKechnie noted that the claimant reported suffering lumbar spine radiculopathy with symptoms in both legs. Dr McKechnie reported that the claimant was scheduled for a laminectomy at the L4/L5 level which was then cancelled.
In reports dated 16 June and 21 July 2020 Dr McKechnie noted that the claimant was complaining of worsening radiating pain in the neck and shoulders and that he had been taking Lyrica for some years.
On 22 November 2007 the claimant reported to Dr Jeffery Hughes, orthopaedic shoulder surgeon, ongoing restriction and pain in the right shoulder following shoulder surgery.
In a report dated 22 November 2007 Dr Jeffery Hughes noted that in relation to the claimant’s left shoulder there was demonstrated a very small rotator cuff tear than an acromial spur.[20]
[20] Claimant’s bundle A 10 p 474.
An MRI of the claimant's left shoulder was performed on 22 December 2008. This MRI showed an extensive full thickness supraspinatus tear.
In a report dated 12 January 2009 Dr Jeffery Hughes notes that the claimant had a full thickness tear of the left rotator cuff which he recommended required surgery.
On 19 August 2020 Dr Hall noted that the claimant suffered a crush fracture at the L1 level of his lumbar spine after a 50kg weight fell on his back.
Post-accident treating records
There are numerous certificates of capacity available from the claimant’s treating GP Dr Henry Tran from one week after the accident. These show persistent and repeated complaints from Mr Apostolov about ongoing neck and back pain and pain in both shoulders.
On 27 February 2021 the Bankstown Lidcombe hospital discharge notes record that the claimant did not report any radiating pain in either of his legs or other neurological symptoms.
In a request for surgery report dated 2 July 2021 Dr Peter Khong, neurosurgeon and spine surgeon reviewed the claimant’s ongoing neck, lower back and leg pain.[21]
[21] Claimant’s bundle A 10 p 474.
Dr Khong wrote that he reviewed Mr Apostolov on 2 July 2021. He complained of persistent lower back pain radiating up to his neck. The pain radiated down the posterior legs bilaterally. He said he recalled only very mild and tolerable lower back pain prior to the accident, and no leg pain.
Dr Khong wrote that:
“Mr Apostolov continues to complain of lower back pain radiating up his spine, as well as down both legs. His MRI demonstrates stability in the LI compression fracture. However, he has a grade 1 degenerative spondylolisthesis at L4/5 with severe canal and bilateral lateral recess stenosis. This is likely causing his back and leg pain. He had mild tolerable back pain before the accident, but no leg pain. He developed most of his pain as a direct result of the accident, especially his bilateral leg pain. He experienced a severe exacerbation of degenerative changes as a result of his accident…….
Surgery is also necessary because Mr Apostolov has had lower back and leg pain for 5 months without improvement. It is unlikely to improve, and he is unlikely to regain significant function, without surgery. I have recommended a bilateral L4/5 decompression.”
REVIEW OF THE RADIOLOGY
There are a large number of X-rays MRIs and CT scans reporting on the claimant’s cervical thoracic and lumbar spine and also his left and right shoulders. All of these show a long-standing history of pain, degenerative disease and shoulder tendon tears.
There is a CT scan dated 3 September 2007 which showed a degenerative narrowing of the C3/4 intervertebral disc space particularly, and this is accompanied by quite marked osteophytic constriction of the nerve exit canals so that there could well be C4 nerve root irritation bilaterally.[22]
[22] Claimant’s bundle A 10 p 481.
There is an X-ray and ultrasound left shoulder dated 23 October 2007. These show a “Small partial tear of supraspinatus is shown at its insertion but tendons are normal elsewhere and no impingement is shown.”
There is an MRI of left shoulder dated 22 December 2008. This shows “Extensive supraspinatus tear with both full thickness and widespread laminar component”.
On 7 June 2010 there is an X-ray lumbosacral spine showing prominent posterior facet joint osteoarthritic degenerative changes in particular.
There is an MRI of the cervical spine dated 8 February 2019 which showed degenerative disc disease with endplate osteophytes at nearly all levels of the cervical spine.[23]
[23] Claimant’s bundle A 12 p 645.
On 27 February 2021 the Bankstown Lidcombe hospital discharge notes record that the claimant had a CT KUB scan. This scan showed:
18.“Extensive degenerative changes noted in the lumbar spine with osteophyte formation. At LI level, there Is significant compression and collapse of the vertebra with loss of approximately 70-60% of the vertebral body height…Significant degenerative changes noted In the facetal joints at multiple levels…Central and bilateral paracentral disc protrusion is noted at L4-L5 and L5-S1 levels causing Indentation of the thecal sac and the nerve roots.”
There is a report dated 7 June 2021 of x-ray and ultrasound of both shoulders.[24] The ultrasound of the right shoulder showed osteoarthritic changes with rotator cuff arthropathy and tears of the supraspinatus and bursitis. The ultrasound of the left shoulder showed marked rotator cuff disease with a complete tear of the supraspinatus. It also showed osteoarthritis changes in the left glenohumeral joint and left AC joint. Joint effusion with bursitis.
[24] Claimant’s bundle A 12 p 645.
A CT of the brain was performed on 2 July 2021 by Dr Johann Wijaya who commented that it was an unremarkable study. No regional cerebral hypoperfusion to suggest underlying brain injury.[25]
SUBMISSIONS
Claimant’s submissions
[25] Insurer bundle AD 1 R 6 p 43.
The claimant’s solicitors provided two sets of written submissions dated 28 January 2022 and 17 March 2023.[26]
[26] Claimant’s bundle A 1
In the submissions dated 17 March 2023 the claimant submits that Medical Assessor Cameron had failed to address the right shoulder tear and did not properly address the claimant’ submissions relating to an aggravation of his lumbar spine condition.
The claimant’s solicitors conceded that the claimant had a pre-existing right rotator cuff tear that was surgically repaired in 2006. They noted that the clinical records did not report any shoulder issues since 2009. The claimant immediately reported pain in his right shoulder after the subject motor accident. Medical Assessor Cameron failed to mention any ultrasound scan or post-accident tears of the shoulder in his certificate.
The claimant further submitted that the clinical records of Dr Tran confirm the claimant did not report any back pain for at least three months before the subject motor accident. From a causation perspective, the accident aggravated the claimant’s pre-accident compression fracture. Supporting this submission was the report of treating neurosurgeon Dr Khong dated 2 July 2021 and the MRI Scan dated 10 June 2021.On page 6 of his certificate, Medical Assessor Cameron stated the accident did not materially exacerbate the lumbar spine. Medical Assessor Cameron provide no reasons for this conclusion.
The claimant in his solicitor’s submissions dated 28 January 2022 provided a detailed history of his right shoulder injury.[27] At paragraph 18 the claimant drew attention to a post-accident ultrasound scan of the right shoulder dated 7 June 2021. The scan reported the presence of a right mid-tendon tear measuring 12 x 3 x 10mm at the supraspinatus and a complete tear of the left supraspinatus.
[27] Claimant’s bundle A 1 pp 1-4.
In the submissions at paragraph 19 the claimant wrote that there was at least a 12 or 15 year gap between the last report of shoulder pain and the date of the motor accident. The claimant submitted that the subject accident caused an aggravation of these injuries that were previously asymptomatic and had resolved.
The claimant submitted that the subject accident aggravated the pre-accident compression fracture in his lumbar spine.
Regarding the treatment and care dispute the claimant refers to Dr Khong’s request of 2 July 2021, he opines that reasonable treatment options which states that surgery is the most reasonable form of treatment as steroid injections or physiotherapy is unlikely to give more than temporary relief due to the severe neural compressions. Dr Khong further notes that surgery will be necessary given that the claimant has had lower back and leg pain for more than five months without improvement. Dr Khong concludes that the claimant is unlikely to regain significant functioning without surgery.

Insurer’s submissions
The insurer has provided written submissions dated 11 April 2023 and 24 February 2022.[28]
[28] Insurer bundle R 1 pp 2- 7and R 2 pp 1-6.
In the submissions dated 11 April 2023 the insurer‘s solicitors submit that
Medical Assessor Cameron’s path of reasoning is clearly set out. It is clear from his reasons that Medical Assessor Cameron has considered all the documents and submissions provided by both parties. Regarding the right shoulder injury, the insurer disputes that there was any error made by Medical Assessor Cameron. In its submissions the insurer disputes the claimant's submissions that there were no right shoulder complaints for the 12 years preceding the subject motor accident. The insurer refers in detail to the pre-existing medical history and in particular to reports from Dr Hughes and Dr McKechnie. These reports refer to the ongoing complaints made by the claimant about his existing right shoulder injury between 2006 and 2020.
The insurer submits that the claimant’s right shoulder had symptomatic pathology for some years prior to the accident and refers to the prognosis of shoulder surgeon Dr Hughes in November 2007, the bone scan of 2016, the shoulder symptoms in 2019, and the years of worsening pain in both shoulders in 2020.
In the submissions dated 11 April 2023, the insurer notes that after the accident and contrary to the claimant’s submission of “contemporaneously reported pain in his right shoulder”, both the ambulance report and the Liverpool Hospital Discharge notes record no limbs tenderness and no mention of right shoulder injury or symptoms.
The insurers solicitor’s submissions conclude that there was no evidence of right shoulder injury caused by the accident. At its highest, there was a complaint of referred pain from the neck to Dr Tran one week post-accident, however as stated by the claimant himself to Dr Tran, this was neck pain referred down his arms, the onset of which was ‘even before the accident’.
Regarding the claimed injuries to the claimant’s lumbar spine the insurers solicitors submit that the claimant does not deny that he had a pre-existing injury L1 fracture prior to the accident. The claimant says there is an error by Medical Assessor Cameron, in not finding there was an aggravation to the L1 fracture, but does not specify what that aggravation was, or how that aggravation falls outside the definition of a threshold injury, as defined by section 1.6 of the Motor Accident Injuries Act 2017.
Medical Assessor Cameron’s path of reasoning was clear. The injury was a threshold injury and the proposed surgery was not causally related. There was evidence of pre-existing and symptomatic lumbar spine fracture with severe L4/5 canal stenosis, grade 1 spondylolisthesis, intersegmental L4/5 laminectomy and rhizolysis reported by Dr McKechnie on 14 November 2017. There was no change to the fracture after the accident or to the reports of radiculopathy. There is no evidence of any lumbar pathology caused by the accident, that is non threshold, referred to in the claimant’s application, the medical evidence or in the claimant’s submissions. There is no error made by Medical Assessor Cameron.

In the insurer’s submissions dated 24 February 2022 the insurer notes there is no record of a head injury in the ambulance records nor in the Liverpool Hospital emergency discharge referral which specifically excludes a head injury. The ambulance notes record a GCS score of 15. The submissions also note that the claimant has a lengthy medical history of complaint about headaches.
The insurer submits that the claimant has a significant pre-accident history of cervical spine complaints, osteoarthritis in 2005 and pre-accident radiological reports which show significant degenerative changes in the cervical spine. The insurer also submits that the claimant has a pre-accident history of cervical spine radiculopathy.
Regarding the left and right shoulders, the insurer submits that the claimant had pre-existing injuries and complaints about both shoulders including radiology which showed that both shoulders had extensive pre-accident tears and injuries. The insurer also submits that there is no medical evidence to suggest that the claimant suffered any aggravation or injuries to either shoulder as a result of the subject motor accident.
Regarding the proposed bilateral L4/L5 decompression surgery and whether it is reasonable and necessary, the insurer submits that the proposed treatment is not causally related to the accident and is not reasonable and necessary in the circumstances.
The insurer points to the claimant having a significant pre-accident history of lumbar spine pain since about 2010.

MEDICAL EXAMINATION

Details of who attended the assessment

Mr Apostolov attended for Medical Panel re-examination on 31 October 2023 with Medical Assessor Oates at the Commission’s Medical Suites as arranged. He was accompanied by his wife, Lence, and a NAATI certified interpreter for the Serbian language.

HISTORY
Pre-accident medical history and relevant personal details

Mr Apostolov said he came from Macedonia in 1968. He had a good command of English.
He had osteoarthritis in the neck in 2005 which was treated with medication successfully.
In 2006 he had a right shoulder rotator cuff tear and saw Dr Geoff Hughes. This was due to wear and tear rather than a specific injury.
In 2008 he had a wear and tear rotator cuff tear to the left shoulder. He saw Dr Hughes. He decided that he could live with the shoulder so there was no surgery.
In 2012 he had low back pain and left leg numbness which was also said to be due to wear and tear. He was to have had an L4/5 laminectomy and rhizolysis but his back and leg symptoms improved and symptoms reduced to a tolerable level that he could be able to decline surgery.
He is on medication for high blood pressure and high cholesterol, Micardis and Lipitor respectively, and also is on a blood thinner. In 2017 he had a coronary stent inserted.
In 2020 he was moving a box of steel on a trolley in his son’s factory, walking backwards pulling the trolley, when he tripped over a cable and fell back, and the edge of the trolley hit him in the lower abdomen. He went to Westmead Hospital. He was found to have a crush fracture of LV1 and sustained a right gluteal haematoma. He was discharged after overnight observation. He was found to have normal neurological findings.
He was reviewed on 12 October 2020.
He worked as a maintenance fitter up until he retired at the age of 68. He retired in 2011 and passed onto the aged pension.
He had a right shoulder rotator cuff repair in about 2006.
He is a non-smoker and has alcohol on special occasions.

History of the motor accident

Mr Apostolov confirmed that on 9 February 2021, he was driving a VW Tiguan Wagon with no passengers. He had a seatbelt on. He was stopped at traffic lights and was the first car in the line of traffic. He was hit from behind by a bus. His car was pushed 5-6m into the intersection but there was no further impact with any object. The airbags deployed. He then lost consciousness. He regained consciousness as he started to get out through the driver’s door and bystanders arrived. He had hit the back of his head on impact but was not bleeding. He felt immediate headache and pain in the middle back and in the paraspinal muscles on both sides.
Police and ambulance attended. He was taken to Liverpool Hospital.
The ambulance report referred to headaches, chest pain, back pain and neck pain, and the hospital record referred to tenderness in the neck and pain in the chest and thoracolumbar spine. He had X-rays. He was advised to stay in hospital overnight, but he decided against it because at the time there was a lot of COVID about and he did not wish to catch it.
He then saw his GP, Dr Tran, in Sefton.
He was given medications and had physiotherapy for the neck. He was complaining of neck and back pain and leg cramps.
He had Lyrica but this was subsequently ceased as it was causing loss of balance. He continued medications and physiotherapy. He had a CT-guided injection to the lumbar spine but there was only short-term benefit.
He underwent bilateral L4/5 decompression by Dr P Khong, orthopaedic surgeon, St George Private Hospital at Kogarah and this was paid for by BUPA, his health fund, in late July or early August 2021. He says the operation helped the low back pain and leg pain for about 12 months, then the symptoms got worse again.
Dr Tran ordered a CT-guided injection, but this only gave a short-term benefit.
Dr Khong suggested further surgery, but liability was not accepted.
He saw Dr Chien, orthopaedic surgeon, regarding right and left shoulder pain in May 2021. He was advised to have an MRI scan. He did not have surgery because both shoulders got better over time.

Details of any relevant injuries or conditions sustained since the motor accident.

He says he has had no further accident.

Current symptoms

He has headaches and his neck and shoulders are better. He has bilateral leg cramps and severe headaches and severe low back pain and upper lumbar pain. He has difficulty walking at times and this can last for two weeks and last occurred about three weeks ago.
His weight was 78kg at the time of the accident and now is only 60kg. He has lost sensation for taste and eats less now. He has started to forget things over the last 12 months. His bowels are OK.
He just drives locally.

Current and proposed treatment

He has vitamin supplements. He takes analgesics each night but can’t remember the name, and also takes an analgesic during the day.
He and his wife moved to Sandringham and they see Dr Saleh at Ramsgate. They moved away from Sefton at the end of 2020. He occasionally sees his old GP, Dr Tran, in Sefton.

EXAMINATION
General presentation

He was of slim build with height 169cm and weight 60.4kg.

Cervical spine (cervicothoracic)

There was full range of movement except for lateral flexion which was two-thirds of normal bilaterally. There were no non-verifiable radicular complaints and no spasm or guarding.
Reflexes, power and sensation in the upper limbs normal. Upper arm girth; right 24cm, left 25cm at 10cm above the elbow crease. Forearm girth; right equals left equals 24cm at 5cm below the elbow crease.

Thoracic spine (thoracolumbar)

There was no guarding. There was no neurological abnormality over the trunk. Thoracic rotation was two-thirds of normal bilaterally.

Lumbar spine (lumbosacral)

Flexion was one-half normal, extension one-half normal, lateral flexion two-thirds of normal bilaterally. There was no non-verifiable radicular complaint. There was tenderness with a palpable step deformity at L1 with complaint of central back pain on extension and flexion.
Supine straight leg raising 70° bilaterally with negative stretch test. There were bilateral lower leg varicose veins. Lower limb reflexes – ankle jerks were present with reinforcement, knee jerks and medial hamstring jerks normal. Power right equals left. Sensation was decreased bilaterally in the lower legs in a non-dermatomal distribution.
Thigh girth; right 37cm, left 35.5cm at 10cm above the superior patellar pole. Leg girth; right 30cm, left 31cm at 16cm below the inferior patellar pole at maximal circumference.

Upper extremities

Active range of movement measured with a goniometer.
There was a full range of movement at the right shoulder in flexion, extension, abduction, adduction, and external and internal rotation. There was no crepitus and no impingement.
Left shoulder – flexion 150° with crepitus and positive impingement sign, extension 50°, abduction 150° with positive impingement, adduction 40°, external rotation 90° and internal rotation 90°.

Comments on consistency

Mr Apostolov presented in a straightforward consistent manner.

Summary of relevant radiological and medical imaging under investigation

He brought the following imaging to the examination:
14 September 2023 – CT lumbar spine and thoracic spine. No report was attached. I viewed the films and agreed with the radiological report on file.

DIAGNOSIS, CAUSATION AND REASONS
Soft tissue injury to the head with headaches

The ambulance report recorded headache with GCS done on four occasions 15/15 which is normal. The hospital record recorded no head injury and no loss of consciousness.
The history given of the mechanism of injury included a knock to the head.
The accident was a cause of a soft tissue injury to the head, but there was normal GCS, no recorded post-traumatic amnesia, and no abnormality of the intracranial contents on scanning, therefore no evidence of traumatic brain injury.

Cervical spine soft tissue injury

The accident was a cause of this injury, as it is mentioned in the ambulance record with cervical pain and stiffness, with a neck collar being applied for transport and in the GP record of 16 February 2021. In the hospital record there was mild paraspinal tenderness in the neck.

Lumbar spine soft tissue injury

Lumbar spine soft tissue injury with aggravation of a pre-existing post-traumatic L1 wedge compression fracture. The accident was a cause of this injury, as lumbar spine is mentioned in the GP record of 16 February 2021, but the hospital record indicated there was no significant tenderness in the lumbar spine. The ambulance report referred to back pain.

Left and right shoulders

There was no evidence of direct injury to the left and right shoulders, both of which were the site of pre-existing conditions.
The accident is not considered to be causally related to left and right shoulder conditions, as the shoulders were not mentioned until a report by Dr Lim dated 10 May 2021, despite multiple consultations with the GP, Dr Tran, between the date of accident on 9 February 2021 and 10 May 2021, a period of three months.
If the accident had been a cause of direct right or left shoulder injuries, the Panel would reasonably have expected that there would have been complaint of symptoms in these parts earlier than three months after the accident.

THRESHOLD INJURY

The soft tissue injury to the head is a threshold injury. There was no indication of injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.
The soft tissue injury to cervical spine is a threshold injury. There was no cervical radiculopathy on clinical examination and there was no evidence of injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.
The lumbar spine soft tissue injury is a threshold injury. There was no evidence of lumbar radiculopathy on clinical examination. There was also no evidence of injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.
As indicated above, the accident was not a cause of direct left and right shoulder injuries.

TREATMENT DISPUTE

The claimant had a pre-existing condition of the lumbar spine which was considered to be a wear and tear condition. He had previously been recommended an L4/5 laminectomy and rhizolysis in 2012, but at that stage his back had improved so that he could tolerate the level of symptoms that continued, so he declined surgery.
The Panel cannot rule out that the motor vehicle accident aggravated this prior condition resulting in an increase in back pain and leg cramp symptoms. Dr Khong’s records indicating pain radiating from the back, down the posterior legs bilaterally. There was tolerable lower back pain and no leg pain prior to the subject accident.
Mr Apostolov has degenerative spondylolisthesis at L4/5 with severe central canal and bilateral lateral recess stenosis, which Dr Khong felt was likely causing the back and leg pain. Because of the continuing exacerbation of these pre-existing changes following the motor vehicle accident, a decision was taken to move to surgery in the form of bilateral L4/5 decompression.
Were it not for the accident, it is not likely that Mr Apostolov would have come to lumbar spine surgery at the time he did, therefore the accident cannot be ruled out as a cause more than negligible resulting in the need for surgery because of aggravation of a known prior condition which was less symptomatic and had a different symptom distribution before the subject accident.

Proposed treatment and care

The Panel’s conclusion is that the L4/5 decompression surgery as proposed by Dr Khong is reasonable and necessary in the circumstances of the claimant’s case and does relate to the injury caused by the motor accident.
In this claimant’s case, the Panel is satisfied that the proposed treatment and care relates to the injury caused by the motor accident. As discussed in paragraphs 145-147 above.

Reasonable and necessary in the circumstances

In such a case the claimant is required to establish that the treatment is both “reasonable and necessary”. This test differs from the workers compensation legislation which requires a worker to establish that the treatment is “reasonably necessary”. There is a stricter requirement under the motor vehicle accidents legislation because there is no moderation of the requirement that the treatment is “necessary”.
When discussing the meaning of “reasonably necessary” under s 60 of the Workers Compensation Act 1987 in Clampett v WorkCover Authority of NSW,[29] Grove J stated:[30]
“22 I return to the expression ‘reasonably necessary’ in s60. Dictionaries stipulate that ‘necessary’ has relevant definition as ‘indispensable, requisite, needful, that cannot be done without’ - (Shorter) Oxford English Dictionary, 3rd Ed and ‘that cannot be dispensed with’ - Macquarie.
23 The essential issue is what effect flows from conditioning such qualities as ‘reasonably’. The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word ‘necessary’ if it stood alone. In order to contemplate such moderation it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker's home, having regard to the nature of the worker's incapacity, is reasonably necessary. In contemplation of what might be ‘reasonably necessary’ there is this statutory obligation specifically to have regard to the nature of the worker's incapacity. It provides emphasis towards moderating the meaning of ‘necessary’ in this context.”
[29] [2003] NSWCA 52 (Clampett).
[30] Clampett at [22]-[23], Meagher & Santow JJA agreeing.
Similar observations have been subsequently made by the Court of Appeal on the meaning of “reasonably necessary” under other legislation.[31]
[31] See ING Bank (Australia) Ltd v O’Shea [2010] NSWCA 71 at [48]; Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 at [113].
Factors relevant to, but not determinative, of the criteria of reasonableness in the context of the workers compensation legislation are well settled.[32] They include:
(a)   the appropriateness of the particular treatment;
(b)   the availability of alternative treatment;
(c)   the cost of the treatment;
(d)   the actual or potential effectiveness of the treatment, and
(e)   the acceptance by medical experts of the treatment as being appropriate or likely to be effective.
[32] See Diab v NRMA Ltd [2014] NSWWCCPD 2 (Diab) at [88].
Whilst the observations in Diab were directed to the test of “reasonably necessary” in the workers compensation legislation, we adopt it insofar as they have relevance, although not determinative, of the stricter test of “reasonable and necessary”.
The words “in the circumstances” in the context of whether the treatment is “reasonable and necessary” must refer to the particular circumstances of the claimant. This is because Schedule 2 of the MAI Act refers to treatment “provided or to be provided to the claimant”.
The test of “reasonable and necessary in the circumstances” does not direct attention to the relationship between the accident and the treatment. That issue arises from consideration of whether treatment “relates to the injury caused by the accident”.

Does the proposed treatment relate to the injury resulting from the motor accident

The question for the Panel is whether the specified treatment “relates to the injury caused by the motor accident”. That application of the common law test of causation in assessing the degree of impairment resulting from injury under the workers compensation legislation was discussed by the Court of Appeal in Secretary, New South Wales Department of Education v Johnson.[33] These principles are well settled and equally apply by reasons of the words used in the treatment issue.
[33] [2019] NSWCA 324.
The motor accident need only be a material contribution to the need for treatment: AAI Limited v Phillips.[34] That case considered the words “whether any such treatment relates to the injury caused by the motor accident” where they appear in s 58(1) of the MAC Act. Those words are almost identical to the wording in Schedule 2 of the MAI Act.
[34] [2018] NSWSC 1710 at [29] (Phillips).
The Panel accepts that there was an injury to the claimant’s lumbar spine caused by the motor accident including whether by way of aggravation of pathology or exacerbation of symptoms. Accordingly, the Panel accepts that the treatment relates to the injury caused by the motor accident and is reasonable and necessary in the circumstances.

SUMMARY OF PANEL’S OPINION AND CONCLUSIONS

The Panel’s opinion is that the accident caused soft tissue injuries to the claimant’s head, cervical and lumbar spine. However the existing soft tissue injuries noted in both shoulders were not caused by the motor accident.
The Panel accepts that Mr Apostolov sustained soft tissue injury to his head but there was normal GCS, no recorded post-traumatic amnesia, and no abnormality of the intracranial contents on scanning, or any other evidence of traumatic brain injury.
The Panel accepts that Mr Apostolov sustained soft tissue injury to his cervical spine as a result of the accident. At the re-examination and medical assessment, the Panel found no dysmetria, muscle spasm, or guarding in either the neck or back. There were no ongoing radicular symptoms or signs in either upper limb. Therefore, the appropriate assessment for his cervical spine was that it was a soft tissue injury.
The Panel also accepts that Mr Apostolov sustained a soft tissue injury with aggravation of a pre-existing post-traumatic L1 wedge compression fracture and an aggravation of his L4/L5 symptoms. The accident was a cause of this injury, as lumbar spine is mentioned in the GP record of 16 February 2021. The hospital record indicated the claimant reported some tenderness in his spine. The ambulance report referred to back pain. At the re-examination and medical assessment, the Panel found lumbar spinal flexion was one-half normal, extension one-half normal, lateral flexion two-thirds of normal bilaterally. The Panel notes the claimant’s long standing complaints and symptoms recorded by his treating neurosurgeon, Dr Simon McKechnie who wrote that he had reviewed the claimant who had decided to proceed with an intersegmental L4/5 laminectomy and rhizolysis and then changed his mind and decided to proceed with conservative treatment. The Panel notes the report dated 2 July 2021 from Dr Peter Khong that the claimant had mild tolerable back pain before the accident, but no leg pain. Dr Khong reports the claimant developing most of his pain as a direct result of the accident, especially his bilateral leg pain. The claimant experienced a severe exacerbation of degenerative changes as a result of his accident.

The Panel does not accept that the claimant’s soft tissue injuries to both his shoulders were caused by or were a result of the motor vehicle accident. The Panel notes that the claimant had long standing complaints about both shoulders for some years before the motor accident. From at least November 2007 the claimant reported to Dr Jeffery Hughes ongoing restriction and pain in the right shoulder following shoulder surgery. The claimant’s left shoulder also demonstrated a rotator cuff tear and an MRI on 22 December 2008 showed an extensive full thickness supraspinatus tear. The Panel notes at the re-examination the claimant demonstrated a full range of movement at the right shoulder. In his left shoulder the claimant demonstrated a limited range of movement. The Panel’s view is that the accident is not causally related to left and right shoulder conditions. Neither of the shoulders were mentioned by a treating GP until a report by Dr Lim dated 10 May 2021, despite multiple consultations with the GP, Dr Tran, between the date of accident on 9 February 2021 and 10 May 2021.
In reaching its conclusions about the causation of the claimant’s left and right shoulder injury the Panel has carefully considered and applied the definition of causation of injury under Part 6 of the Guidelines and also the court decisions referred to earlier in these reasons. The Panel is not satisfied that the subject motor vehicle accident materially contributed to the claimant’s left and right shoulder injury or caused or exacerbated any such injury.
Regarding the treatment and care dispute the Panel’s conclusion is that the subject motor vehicle accident aggravated or exacerbated the prior fractured LV1 and Grade 1 L4/5 spondylolisthesis which resulted in the claimant experiencing bilateral sciatic pain. The motor vehicle accident was more than a negligible contributing factor to this aggravation. The L4/5 decompression laminectomy was indicated and causally related to the subject motor vehicle accident and was reasonable and necessary.

CONCLUSION AND CERTIFICATION

For the above reasons the Panel revokes the certificates issued by Medical Assessor Cameron.
The Panel finds that the injuries to Mr Apostolov’s head, cervical spine and lumbar spine are soft tissue injuries caused by the motor accident and are threshold injuries. The injuries to the left and right shoulders are soft tissue injuries not caused by the motor accident.
As a result of the above findings the Panel revokes the certificate issued by Medical Assessor Cameron regarding the L4/5 decompression surgery as proposed by Dr Peter Khong. The proposed treatment and care does relate to the injury caused by the motor accident and is reasonable and necessary in the circumstances.
The new certificates are attached at the commencement of these reasons.

[2024] NSWPICMP 54

2 February 2024