Babak v Allianz Australia Insurance Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Babak v Allianz Australia Insurance Limited [2025] NSWPICMP 346
CLAIMANT:	Benjamin Babak
INSURER:	Allianz Australia Insurance Limited
REVIEW PANEL
MEMBER:	Terence Stern OAM
MEDICAL ASSESSOR:	Thomas Rosenthal
MEDICAL ASSESSOR:	David Gorman
DATE OF DECISION:	19 May 2025
DATE OF AMENDMENT:	4 June 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); medical dispute about threshold injury; physical injury; Medical Assessor (MA) considered the injuries to the cervical spine and lumbar spine; MA found that the injuries to the cervical spine and lumbar spine were caused by the motor accident and were threshold injuries; a dispute arose; re-examination by the Review Panel; Held – Review Panel found that the injuries to the cervical spine and lumbar spine were caused by the motor accident; the injury to the cervical spine was a threshold injury; injury to the lumbar spine was a non-threshold injury; MAC revoked; new certificate issued.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Division 7.5 of the Motor Accident Injuries Act 2017 1. The Panel revokes the certificate of Medical Assessor Home of 14 June 2024 and substitutes the determination to certify that the injuries referred to Medical Assessor Home were threshold injuries with the exception of the injury to the lumbar spine which was a non-threshold injury.

STATEMENT OF REASONS

Procedural introduction to Amended Reasons prepared pursuant to an Application by the insurer to correct an Incomplete Certificate

Rule 112 of the Personal Injury Commission Rules 2021 (the Rules) provides:
“112 Correction of incomplete certificate
(1) The Commission may refer a matter back to a medical assessor or panel if the assessor or panel provides an incomplete certificate to allow the assessor or panel to correct the certificate.
(2) In this rule—
incomplete certificate means a certificate that fails to comply with—
(a) section 61 of the MAC Act, or
(b) section 7.23 of the MAI Act.”
On 21 May 2025, the solicitor for the insurer lodged on Pathways an Application pursuant to Rule 112 to correct an incomplete certificate.
The insurer’s solicitor noted at [1.2] of the Application that:
“[1.2] It is noted that the Insurer uploaded an ALAD on 12 May 2025 enclosing records from Dr Charbel Elhaddad who treated the Claimant when he was known as Ali Ahmad.”
The insurer’s solicitors drew attention at [1.3] that:
“[1.3] the records of Dr Elhaddad contained a pre-accident MRI report of the lumbar spine dated 8 July 2019 which confirmed the presence of disc desiccation with annulus tears and disc protrusions at both L3-4 and L4-5.”
At [1.4], the insurer submitted that it was evident from the Certificate of the Review Panel that the Review Panel had not had regard to the MRI report of the lumbar spine of 8 July 2019.
It is further submitted at [1.6] that:
“[1.6] It is evident that the Panel have proceeded on the basis that there were no annular tears present in the lumbar spine prior to the subject accident, and that the pre-accident lumbar spine pathology was limited to L3/4. However, the MRI dated 8 July 2019 both confirms that there were annular tears present prior to the accident, as well as the fact that there was significant pathology at both L3/4 and L4/5. This re-affirms to the Insurer that the Panel have either not been provided with, or have not had regard to the records of Dr Elhaddad.”

INTRODUCTION

The claimant, Benjamin Babak (Mr Babak), was injured in a motor vehicle accident (the accident) on 3 December 2022.
Allianz Australia Limited (Allianz) was the insurer.
Under the provision of the Motor Accident Injuries Act 2017 (MAI Act) in force at the time of the accident the statutory benefits for treatment and care cease after 26 weeks if “the person’s only injuries resulting from the motor accident were minor (threshold) injuries”.
Mr Babak submitted an Application for Personal Injury Benefits dated 22 December 2022.

THRESHOLD INJURY DISPUTE

Allianz determined that Mr Babak had sustained a minor (threshold) injury and denied liability for statutory benefits beyond 26 weeks after the accident.
He filed an application in the Personal Injury Commission (Commission) in respect of the dispute.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matters, including whether the injury caused by the motor accident was a threshold injury.
A medical assessment matter was determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.

THRESHOLD INJURY – STATUTORY PROVISIONS

Assent was given to the Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) 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” was 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.
A threshold injury was defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “psychological or psychiatric injury that was not a recognised psychiatric illness”. 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 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 was a threshold injury for the purposes of the MAI Act. Version 9.2 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 was a threshold injury, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim was a soft tissue injury or a threshold psychological 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 was a threshold injury. Diagnostic imaging was 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 was 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 Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372, his Honour Justice Wright stated at [35]:
“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 was 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
6.5 An assessment of the degree of permanent impairment was 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 was related to the accident in question was 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.
6.6 Causation was defined in the Glossary at page 316 of the AMA4 Guides as follows:
‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it was necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which was a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which was a non-medical determination.’
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7 There was no simple common test of causation that was 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 was a contributing cause, which was 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 was not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes’.”

ASSESSMENT UNDER REVIEW

The injuries referred for assessment to Medical Assessor Alan Home (the Medical Assessor) in respect of the dispute as to threshold injury were:
· cervical spine injury, and
· lumbar spine injury.
At [3]-[4] of his certificate, Medical Assessor Home set out the submissions of the claimant and the insurer.
Medical Assessor Home notes the past history of the claimant at [8]:
“[8] Mr Babak states that he previously suffered an episode of low back pain approximately 3 years before the motor vehicle accident. He said that he sustained injury whilst playing soccer. He recalls lower back pain. He does not recall pain in his right leg. He attended Dr Youssef in relation to those medical complaints. He recalls that he attended a physiotherapist or chiropractor for several weeks. He recalls that he attended his doctor. He does recall undergoing scans of his lumbar spine. He said that he has not been able to locate the scan due to a system failure at his previous radiology practice. He was told that he suffered from an L3/4 disc injury. He does not recall any history of chronic low back pain leading up to the period of the motor vehicle accident, as reflected by the ambulance report. He does not recall taking ongoing medication or requiring chiropractic treatment in the period leading up to the subject accident. To enquiry regarding this inconsistency, he advised me that the ambulance officer must have been mistaken.”
Medical Assessor Home sets out the history of the accident at [9]:
“[9] Mr Babak states that his car was stationary on Marjorie Jackson Parkway in Wentworthville near the intersection of Bennelong Parkway. He was waiting to make a right-hand turn when his vehicle was struck from behind. He disagrees with the mechanism of the accident as set out in the police, ambulance and Concord Hospital that indicate that he was travelling forward at slow speed when struck. He said that this description is a mistake. He advises that his car, a Toyota Camry sustained rear-end damage. He was able to alight from the car. He was subsequently taken by ambulance to Concord Hospital where he was assessed. CT scan imaging of the cervical spine was performed. He was discharged with a diagnosis of Whiplash Associated Disorder (WAD). He also recalls symptoms of low back pain on that day. He subsequently attended his usual general practitioner, Dr Youssef and recalls that he was referred for physical therapy for complaints of neck and back pain. He recalls pain radiating to his right arm and his right leg during the post-accident period. He was under the care of Dr Richard Lee from March 2023. He attended Associate Professor Ali Ghahreman in Kogarah who documented neck and referred pain to the right arm and lower back pain with referred pain to the right leg. After review of the scans, there was discussion about possible surgical treatment. Mr Babak confirms a subsequent period of further physical therapy under the care of Mr Farid Zharavi. He returned to Associate Professor Ghahreman in May 2023 and a further recommendation was made for lumbar decompression surgery. There was also a recommendation for a sight-sided neck injection at C6, which proceeded. He recalls that symptoms improved for a few days before the pain returned. He sought a second neurosurgical opinion from Dr Kohan, whom he attended on 13 June 2023. Dr Kohan arranged for repeat MRI scan imaging of the cervical and lumbar spines. These scans were performed. He ceased physiotherapy around June 2023. He recalls that at that stage the physiotherapy was not improving his symptoms. He is currently taking Tramadol, 50 milligrams twice daily.”
Medical Assessor Home sets out the current symptoms and functional capacity of Mr Babak at [10]-[11]:
“[10] Mr Babak reports current symptoms of constant neck pain, of average intensity 7 out of 10. Pain is felt on the right side with frequent radiation of pain to the right shoulder and proximal right arm. There is occasional radiation of pain to the right arm, distal to the elbow, primarily felt at night. Pain is worse in cold weather. He describes intermittent paraesthesia in all digits of his right hand, although the thumb seems less affected. Paraesthesia can spread from the elbow or be present at the elbow and in the right hand separately. He describes constant low back pain with intensity 7 out of 10, increasing to 10 out of 10 when more severe, Pain is felt in the midline to the right side. There is exacerbation of back pain with coughing and sneezing. There is frequency of bladder function. There is no bowel dysfunction. He describes frequency of radiation of pain to the thigh and also frequent radiation of pain past the knee into the calf and foot. He describes fairly constant numbness in the entire right foot. He describes altered sensibility from the right knee to the toes.
[11] Mr Babak is right hand dominant. He reports a sitting tolerance of 30 minutes and a driving tolerance of 20 minutes. He is able to stand and walk for 10 minutes. There is difficulty with deep forward bending at the waist. His stair climbing is also described as difficult. His sleep pattern is disrupted. He estimates that he wakes thrice nightly. He is independent for activities of self-care. He limits lifting to a small bag. At home, he does not undertake any domestic chores apart from placing his clothes in a washing machine. His friends perform most of the heavier chores such as bathroom mopping and vacuuming as well as hanging the washing. His friends perform the cooking. He has not resumed previous active hobbies of playing soccer, bodybuilding and swimming.”
Medical Assessor Home noted Mr Babak’s social and vocational history at [12]-[13]:
“[12] Mr Babak is separated from his wife and currently lives in shared accommodation with two friends in a house in Strathfield. He is a non-smoker.
[13] Mr Babak was working as an assistant manager at a cosmetic company before the accident. He was buying and selling cosmetics. He also performed work as an Uber driver on weekends. Over the past six months he has returned to Uber driving 4-5 hours daily, five to six days per week.”
Medical Assessor Home sets out his clinical examination of Mr Babak at [14]-[15]:
“[14] Mr Babak is a 36-year-old standing 176 centimetres and weighing 84 kilograms. The examinee removed a lumbar corset and lower limb orthoses prior to the examination. Cervical spine (cervicothoracic) Examination reveals normal spinal curvature without muscle spasm. There is reduced range of active motion. Cervical spine flexion and extension are full. Right rotation three quarters normal range. Left rotation four fifths normal range. Right lateral flexion two thirds normal range. Left lateral flexion three quarters normal range. There is muscle guarding to the right. Neurological examination of the upper extremities reveals normal myotomal muscle power in all muscle groups. There is no muscle wasting in the upper limbs. There is reduced sensibility declared in the tips of the ulnar three digits of the right hand. The deep tendon reflexes at the biceps brachiaradialis and triceps are symmetrically preserved. Spurlings’ test is negative. The circumference of the forearms is symmetrical measaured at 32 centimetres on each side. Lumbar spine (lumbosacral) There is normal spinal curvature. There is no muscle spasm. Active lumbar flexion is performed to three-quarters normal range. Extension is performed to one-fifth normal range. Lateral flexion is symmetrically performed to half normal range on each side. Thoracic rotation is symmetrically performed to two thirds normal range on each side. There is muscle guarding during lumbar extension motion. Tenderness is elicited to palpation overlying the lowest two lumbar segments. Straight leg raise is performed to 60 degrees bilaterally. Back pain is declared with extreme right straight leg raise. Lasegue’s sign does not reproduce calf pain. Neurological examination of the lower extremities reveals normal lower limb power in all muscle groups. There is reduced sensibility in the right leg below the knee, in a stocking pattern. The deep tendon reflexes are symmetrically preserved at the knees, ankles and hamstrings. With reinforcement, there is normal power in all muscle groups. That is, there is no myotomal weakness. The circumference of the right thigh is measured at 49 centimetres. The circumference of the left thigh is measured at 50 centimetres. The circumference of the right calf is measured at 36.5 centimetres. The circumference of the left calf is measured at 36.7 centimetres.
[15] Mr Babak was consistent in his clinical presentation. However he appeared to have an incomplete recollection of his past history. The clinical records of Dr Youssef detail presentations with back pain and leg pain between June 2019 and December 2020.”
At [16]-[17], Medical Assessor Home sets out a summary of the documentation and imaging upon which he relied in his certificate.
At [18]-[20], Medical Assessor Home sets out his determination in respect to threshold injury to the cervical and lumbar spine:
“[18] The claimant, Benjamin Babak was involved in a motor vehicle accident in which his vehicle was struck from behind whilst either stationary or travelling slowly. His history was that his car was stationary, whereas the medical documents indicate a low speed of travel. There is subsequent documentation of pain in the neck, back, right upper limb and right lower limb. The claimant’s history of that he suffered an episode of back pain of approximately three weeks duration, 3 years before the accident around 2019. The claimant’s history is inconsistent with the general practitioner’s record, which documents treatment over an eighteen month period and with the ambulance report, which appears to detail a history of persisting back pain requiring ongoing medication and chiropractic treatment. The previous clinical notes from his treating general practitioner, Dr Edward Youssef of Punchbowl do not detail treatment between December 2020 and the date of accident. Therefore the claimant’s history that he was not experiencing back pain leading up to the accident is consistent with the medical record. Previous imaging of the lumbar spine demonstrated pathology maximal at L4/5 and L5/S1. I find that in the subject accident the claimant suffered injuries to the lumbar spine and cervical spine. There is early documentation of injuries to both regions of the spine and in the medical records. Post-accident imaging of the cervical spine demonstrates degenerative changes at C5/6 which is likely to be pre-existing. Whilst the claimant reports intermittent sensory symptoms in the right upper limb, the objective clinical signs required for a diagnosis of cervical radiculopathy are not present at this assessment. Review of the imaging of the cervical spine does not reveal a discrete traumatic injury that would satisfy the criteria for a non-threshold injury. With regard to the lumbar spine, the post-accident imaging demonstrates disc desiccation and bulging at L3/4 and a circumferential and slightly right-sided disc bulge with an annulus fissure at L4/5. There is potential compression at the L5 nerve root at the L4/5 level. The claimant does not present with clinical findings of a lumbar radiculopathy at this assessment. I have carefully reviewed the previous reports from Associate Professor Ghahreman and Dr Kohan. I do not find the clinical findings of a lumbar radiculopathy, as defined by Clause 5.8 of the Guidelines, have been confirmed by previous examiners. I do note an annulus fissure identified in the post-accident imaging. It is necessary to consider whether this is an acute finding due to trauma or a pre-existing degenerative tear. In the absence of clinical signs of lumbar radiculopathy, the assessment of the threshold dispute in this case relies upon the interpretation of the post-accident imaging. I do note that the pre-accident CT scans (2019) demonstrate a broad based L4/5 disc-osteophyte complex causing mild bilateral neural foraminal narrowing and mild bilateral facet joint arthropathy. Therefore there are established degenerative changes at the L4/5 intervertebral segment involving the intervertebral disc and facet joints. The assessor is cognisant of the decision of the Medical Review Panel in Muradi v QBE Insurance (Australia Limited) (2022) NSWPICMP 59 wherein it was noted annular tears were as common in asymptomatic 20-year-olds as symptomatic 20 year-olds. There was a similar discussion by the Panel in Insurance Australia Limited t/as NRMA Insurance v Aziz (2023) NSWPICMP 268. The current case is similar to the Aziz case, where there was a past history of back pain. The claimant has a past history of back and radicular leg pain that likely arose from the underlying disc pathology. I find that on balance, there is a very high likelihood that the annulus fissure seen in the post-accident scans represents a pre-existing degenerative fissure, and is therefore not an acute finding. The post-accident history of back and leg pain represents a symptomatic aggravation of the pre existing condition.
[19] The following injuries WERE caused by the motor accident:
·Cervical spine: Soft tissue injury; Underlying C5/6 degeneration; Non-verifiable radicular complaints, right upper extremity.
·Lumbar spine: Aggravation of pre-existing degenerative disc disease.
[20] Threshold injury
Section 1.6(1) of the Act states that: ‘For the purposes of this Act, a threshold injury is, subject to this section, one or more of the following— (a) a soft tissue injury, (b) a psychological or psychiatric injury that is not a recognised psychiatric illness.’ Section 1.6(2) of the Act states: ‘A soft tissue injury is (subject to this section) an injury to tissue that connects, supports or surrounds, other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.’ Schedule 1 [2] clause 4 of the Motor Accident Injuries Regulation 2017 states: ‘1) An injury to a spinal nerve root that manifests in neurological signs (other than radiculopathy) is included as a soft tissue injury for the purposes of the Act.’ The assessment of whether the injury is a ‘threshold injury’ is not a direct measure of symptoms or disability. A finding that the injury is a ‘threshold injury’ indicates that there was an injury caused by the motor accident and that there may be continuing symptoms, however the injury satisfies the definition of a threshold injury under the Act and the Regulation. The Assessor adopts the reasoning in David vs Allianz Australia Ltd (2021) NSWPICMP 227 at (84) (104), that radiculopathy can be present at any time to establish that the injury is not for the purposes of the MAI Act.
Cervical spine
The injuries listed above are threshold injuries. I am satisfied the injuries meet the definition of soft tissue injuries. There is no evidence of injuries to the nerves, complete or partial rupture of tendons, ligaments, menisci or cartilage. The clinical presentation does not meet the criteria for cervical radiculopathy set out in Clauses 5.8 to 5.10 of the Motor Accident Guidelines. Radiculopathy is the impairment caused by dysfunction of a spinal nerve root or nerve roots. To conclude that a radiculopathy is present two or more of the following signs should be found: • loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines) • positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines) • muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines) • muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution • reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution. None of the criteria are met. Whilst there is reduced sensibility declared in the ulnar three digits of the right hand, which may reflect a C7 or T1 radiculopathy, the other clinical signs required for a diagnosis of radiculopathy as set out in Clause 5.8 are not met.
Lumbar spine
The clinical findings required for a diagnosis of lumbar radiculopathy in accordance with Clause 5.8 to 5.10 of the Motor Accident Guidelines are not met. (See above). There is reduced sensibility in a non-dermatomal pattern in the lower extremity. There is no measurable muscle wasting of the calf. Thigh muscle wasting is insufficient to determine an assessment of muscle atrophy. The deep tendon reflexes are symmetrically preserved. I did not detect myotomal weakness. There is no positive neural tension test. There is no evidence of injuries to the nerves, complete or partial rupture of tendons, ligaments, menisci or cartilage. I find that on balance, there is a very high likelihood that the annulus fissure seen in the post-accident scans represents a degenerative fissure, and is therefore not an acute finding.”

REVIEW PROCEDURE

Mr Babak lodged an application for review of the assessment of the Medical Assessor.
On 2 September 2024, 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).
Rules 127 to 130 of the Rules are made pursuant to Part 5 of the Personal Injury Commission Act 2020 (PIC Act). A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.
The review was by way of a new assessment of all matters with which the medical assessment was concerned.

SUBMISSIONS
The Panel refers to the submissions of the claimant dated 8 September 2023 below:

The claimant submits that he was involved in a motor vehicle accident when his vehicle was rear-ended at a speed of 60-70 kilometres per hour. The police report of 20 January 2023 described the accident as a major traffic collision. He was transported by ambulance to Concord Hospital.
The claimant submits that as a result of the accident he suffered injuries to his neck, mid to lower back, right leg, together with psychological injuries.
Reference is made to the MRI scans of the lumbar spine dated 8 December 2022 and the further medical evidence that is set out below. In particular, reference is made to the report of Associate Professor Ali Ghahreman, neurosurgeon and spinal surgeon dated 17 April 2023 at which time there was a request for surgical decompression at L4/5. On 30 May 2023, Associate Professor Ali Ghahreman requested a right C5/6 transforaminal injection. Reference is made to the subsequent scan imaging.
The claimant submits that based upon the findings of Associate Professor Ali Ghahreman in a report dated 10 March 2023, there were findings of reduced reflexes at the right biceps and brachial radialis (C6). Associate Professor Ghahreman at 30 May 2023 revealed numbness and paraesthesia of the thumb and index finger. (C6 dermatomes.)
It is therefore submitted by the claimant that Associate Professor Ghahreman has reported two clinical signs of C6 radiculopathy.
With regard to the lumbar spine, the claimant makes reference to Associate Professor Ghahreman’s clinical findings of 30 May 2023, which revealed significant numbness and paraesthesia, right, involving the L5 dermatome and Dr Kohan’s report dated 13 June 2023. This sets out pain along the right side, paraesthesia over the lateral aspect of the ankle and the L5 dermatome or distribution with numbness in the lateral right foot, top and bottom. Power was slight, ankle dorsi flexion weakness. Reflex were diminished at the right ankle on the right.
It is submitted that Associate Professor Ghahreman and Dr Kohan have indicated that two clinical signs are recorded for both L5 radiculopathy and S1 radiculopathy.
It is submitted that whilst the claimant suffered back pain prior to the motor vehicle accident, it should emphasize that the medical records do not report a history of C6, L5 or S1 radiculopathy prior to the subject accident.
The claimant submits that it follows the radiculopathy is causally related.
It is submitted that these qualify for non-threshold injuries.

The Panel refers to the submissions of the insurer dated 29 September 2023 below:

The insurer’s initial submissions set out that there is pre-accident treating medical evidence, but the insurer has not received the pre-accident medical records form the claimant’s general practitioner, Dr Youssef.
The insurer notes that on the ambulance records, it is documented the claimant complained of back and thoracic mid-line tenderness and had been able to self-extricate. He denied motor or sensory deficits. He advised paramedics that his back pain was not new, and he had a two-year history of the same. The claimant further advised that he had a history of L3/4 disc degeneration, which he treated with Lyrica and chiropractic services. After transfer to Concord Hospital, on admission, it was noted that he was complaining of cervical spine and lower back pain with shooting pain down the right leg. It was recorded the claimant had a history of slipped disc with some back and leg pain from three years prior to the accident. At that stage, there was no change in sensation or limb weakness. CT scans of the cervical spine recorded minor degenerative disc bulge at C5/6.
On 22 December 2022, the claimant completed an Application for Personal Injury Benefits. He described his injuries as neck, whiplash, mid to lower back and right leg. He confirmed a history of lower back injury three years prior which he reportedly recovered from.
MRI scans of the lumbar spine performed on 8 December 2022 demonstrated multi-level abnormalities, most significant at L4/5 but also at L3/4 as described.
Certificate of Capacity from Dr Youseff detail the diagnosis of lower back and leg pain. It was noted the claimant had a previous history of lower back pain in 2019. To date, the insurer has not received the records of Dr Edward Youseff.
The insurer details the physiotherapy records.
The insurer has detailed the findings of Associate Professor Ali Ghahreman on 10 March 2023 who opined a segmental injury to L4/5, resulting from the accident associated with back pain and bilateral lower limb pain.
Reference is made to Dr Lee’s noted at Enmore Medical Practice from 17 March 2023.
The insurer further notes the MRI scan imaging of 30 March 2023 and subsequent Certificates of Capacity completed by Dr Lee who diagnosed neck pain with right C4 nerve root compression, lumbar mechanical back pain and bilateral sciatica, L3/4 compression, situational anxiety and adjustment disorder.
The insurer submits they declined approval for surgery requested by Associate Professor Ali Ghahreman, prior to reviewing additional information, including complete treating records and pre-accident radiological reports.
On 5 May 2023, Dr Lee referred the claimant to Dr Saeed Kohan, neurosurgeon for a second opinion.
On 30 May 2023, Associate Professor Ali Ghahreman reportedly documented lower back and right-sided lower limb pain considered to be secondary to a disc herniation at L4/5 with marked stenosis of the lateral recess. He recommended the claimant undergo a right C6 peri-radicular injection to assist with neck symptoms.
Reference is made to further Certificates of Capacity issued by Dr Lee.
The insurer notes the claimant attended Dr Kohan on 13 June 2023 with complaints of neck pain radiating to the right arm and paraesthesia, bilateral leg pain with paraesthesia. The pre-accident history was not set out by Dr Kohan. The examination findings by Dr Kohan were mild global weakness in the right upper limb. Normal power with slight ankle dorsi flexion and weakness in the lower limbs. The reflexes were diminished at the ankle, moreso on the right. Dr Kohan opined two major issues a C5/6 disc herniation with a degree of cord compression, foraminal narrowing and lateral recess narrowing and C4 compression in the foramen on the right. He recommended an updated MRI scan to assess the most appropriate surgical option. Dr Kohan agreed that lumbar decompression would be appropriate and expressed the view that the stenosis due to the injury arose due to the claimant’s subject accident. The claimant subsequently underwent CT scan imaging of the cervical spine at 28 June 2023 and MRI scans of the lumbosacral spine. The insurer submits that the findings of Associate Professor Ali Ghahreman of 10 March 2023 were confined to reflex changes.
In the second report of May 2023, it is submitted there was no evidence that Associate Professor Ali Ghahreman found evidence of radiculopathy pursuant to Clause 5.8 of the Guidelines.
The insurer disputes that the surgery is required in the absence of Whiplash Associated Disorder (WAD) 3 findings.
The insurers notes that further, although Dr Kohan recommended surgical management, he did not document symptoms consistent with a diagnosis of radiculopathy under Clause 5.8.
The insurer draws reference to the decision of the Review Panel in Al-Khafaji v Insurance Australia Limited trading as NRMA Insurance, 2022, NSW PICMP519 with regard to the diagnosis of radiculopathy.
With regard to the lumbar spine injuries, the insurer notes they have not received pre-existing clinical records from the claimant to actually determine the extent of his pre-existing spinal injuries and is therefore unable to undertake a proper assessment of the injuries or a subsequent request for surgery.
The insurer further notes there is no clear evidence that following the accident, the claimant had radiculopathy aligned with Clause 5.8 of the Guidelines.
The first assessment of Associate Professor Ali Ghahreman of 10 March 2023 refers to myotomes 5/5 in the upper and lower limbs. No other neurological findings in the lower limbs were set out. It is not apparent that Associate Professor Ghahreman undertook a neurological examination of the claimant on 30 May 2023. Symptoms of right leg numbness and paraesthesia following an L5 dermatome were recorded.
In relation to the examination findings of Dr Kohan, reference is made to a normal range of motion and power with slight ankle dorsi flexion and weakness. The reflexes were diminished at the ankle, moreso on the right side. Dr Kohan also recorded some numbness in the lateral right foot and top of the bottom of the foot that is intermittent as well as paraesthesia over the lateral aspect of the ankle. With regard to Dr Kohan’s findings, the abnormalities to be references, must be in accordance with a definition in Table 6.8 of the Guidelines, reflex abnormalities to be considered valid, the involved and normal limb should show marked asymmetry on repeated testing.
The insurer disputes that Dr Kohan’s findings meet such a definition. With respect to Dr Kohan’s comments, there was normal power on examination with some slight ankle dorsi flexion and weakness.
The insurer disputes that the findings confirm to the definition as set out in Tables 6.8 of the Guidelines as follows: to be valid, the sensory findings must be in strict anatomical distribution, that is, follow dermatomal patterns. Motor findings shoulder be consistent with the affected nerve structure, significant long-standing weakness is usually accompanied by atrophy.
The insurer does not find that the sensory symptoms referred to by Dr Kohan are consistent with the Guideline requirements following “as reproducible sensory loss that is anatomically localised to an appropriate spinal nerve distribution”.
The insurer’s further submissions address the records of Dr Youssef. These clinical records have been reviewed, as set out in the review of documents, below. The insurer submits that the annular fissure at L4/5 was pre-existing and unrelated to the motor accident.
The Panel refers to the further submissions of the insurer dated 10 June 2024 by reference to paragraph numbers:
[1.1]   The records provided by Dr Youssef suggest that the claimant first attended upon Dr Youssef on 12 April 2016. The records reveal the following with respect to the claimant’s pre-accident medical history:
(a)at consultation on 5 January 2017, it was recorded that the claimant had depression. He was prescribed Lexapro. It was also recorded that Lexapro had been prescribed by Dr Shazia. The insurer believes that this is a reference to Dr Shazia Shinwari of Bridgeview Medical Practice.
(b)At consultation on 17 June 2019 the claimant complained of back pain and right sided sciatica. He was prescribed Voltaren and Nurofen. The claimant again complained of back pain on 25 June 2019 when he was prescribed Mersyndol Forte and referred for a CT scan.
(c)The CT scan was performed on 26 June 2019. It revealed a broad-based disc osteophyte complex at L4/5 causing mild bilateral neural foraminal narrowing and possible minimal compression upon existing nerve roots. It also revealed a broad based disc bulge at L5/S1 level causing minimal impression upon the anterior spinal theca.
(d)Further complaints of back pain were noted at consultation on 28 June 2019 when the Claimant was referred to Dr Maniam.
(e)Dr Youssef again referred the Claimant to Dr Maniam on 12 July 2019 when he noted that the Claimant’s back pain and leg pain was worsening despite a cortisone injection.
(f)At consultation on 9 September 2019 the claimant complained of buttock and back pain and was prescribed Lyrica.
(g)Complaints of back pain continued at consultations throughout November 2019.
(h)On 14 May 2020 the claimant was referred to physiotherapist, Mr Farid Zahraei.
(i)At consultation on 22 July 2020 the claimant again complained of back pain and was referred to Dr Balsam Darwish
(j)At consultation on 7 December 2020 the claimant requested a referral to Mr Shami, chiropractor for lower back and leg pain.
(k)At consultation on 11 October 2021 the claimant complained of neck pain.
[2.1]   Dr Youssef records refer to a long history of lumbar spine complaints including referred symptoms to the lower limbs and pre-existing pathology at L4/5 and L5/S1.
[2.2]   Having regards to Dr Youssef’s records the insurer submits that the pathology detected in the MRI scan on 8 December 2022 including the annular fissure at L4/5 was pre-existing and unrelated to the subject accident. In this regard the insurer notes that annular fissures cannot be detected by CT scans.
[2.3]   The insurer further submits that prior to finalisation of his certificate, Medical Assessor Home should have the benefit of records from the following:
(a)Dr Shinwari;
(b)Dr Maniam;
(c)Dr Darwish;
(d)Mr Shami, and
(e)Mr Farid Zahraei.
[2.4]   The insurer confirms that it will request these records.
[2.5]   The insurer notes that Dr Youssef’s records also refer to a history of depression for which he had been prescribed Lexapro by Dr Shinwari.
[2.6]   Again, the insurer submits that Dr Shinwari’s records should be provided to Dr Shen ahead of his assessment on 24 June 2024, together with Dr Youssef’s records.
The panel refers to the further submissions of the claimant dated 13 June 2024 by reference to paragraph numbers:
[1]     The claimant refers to the insurer’s submissions dated 10 June 2024 and the following submissions address the records of general practitioner, Dr Youssef dated 6 June 2024.
[2]    The claimant confirms that although he has obtained referrals to seek treatment with Dr Darwish and Dr Maniam, he has never attended their practices nor sought treatment from them.
[3]    Furthermore, the claimant also confirms that although he has been prescribed with Lexapro he has never taken Lexapro nor any other psychiatric medication.
The panel refers to the review submissions of the claimant dated 16 July 2024 by reference to paragraph numbers:
[1]     Mr Babak is currently 36 years of age.
[2]    He was injured in a motor accident on 3 December 2022 and alleges injuries including lower back pain with leg pain/radiculopathy.
[3]    The matter is governed by the MAI Act.
[4]    Mr Babak was examined by Medical Assessor Home on 24 May 2024.
[5]    A certificate issued on 29 May 2024 certified a non-threshold back injury.
[6]    The Commission impermissibly ‘recalled’ that certificate.
[7]    On 26 June 2024, a second certificate issued, now finding a threshold injury.
[8]    Mr Babak contends the Commission had no power to recall the original certificate, being functus officio; the insurer's remedy was via review.
[9]    Mr Babak submits the second certificate gives no explanation for the recall or change of view.
[10]     Alternatively, Mr Babak seeks a review of the 14 June 2024 certificate.
[11]     He relies on Dominice v Allianz [2017] NSWCA 171, noting the proper officer need only suspect an error to trigger a review.
[12]     Mr Babak submits there is reasonable cause to suspect material error in Medical Assessor Home’s assessment, and seeks review under s 7.26 of the MAI Act.
[13]     He submits errors in guideline application, inadequate reasoning, and denial of procedural fairness.
Certificates
[14]     The 24 April 2024 certificate found an L4/5 annulus fissure, considered a traumatic non-threshold disc injury.
[15]     The 14 June 2024 certificate found the same fissure to be degenerative and pre-existing, relying on legal—not medical—authority.
[16]     There was a post-accident history of back and leg pain showing symptomatic aggravation.
[17]     The diagnosis became aggravation of pre-existing degenerative disease.
[18]     Mr Babak submits the criteria for lumbar radiculopathy were not met; diagnosis was updated to “aggravation of pre-existing degenerative disc disease”.
[19]     This change in opinion is extraordinary; general practitioner notes provided by the insurer did not justify such a reversal.
[20]     Mr Babak argues the notes were irrelevant once the first certificate issued.
[21]     No notice was given that the Medical Assessor would rely on legal rather than medical grounds, which Mr Babak submits breaches procedural fairness.
Legal Principles
[22]     Once issued, a certificate cannot be recalled.
[23]     The insurer's remedy was to seek a review.
[24]     Section 7.23 of the MAI Act provides certificates are conclusive; there is no provision for recall.
[25]     Section 7.23(9) allows correction of slips, not full reversals. No reasons were given here.
[26]     Accordingly, the original certificate remains the operative one.
[27]     Procedural fairness was denied – Mr Babak could not respond to the unnotified change in reasoning.
[28]     This is similar to the error in Kinchela v IAA [2021] NSWSC 804.
[29]     The Guidelines (cls 6.6–6.7) require consideration of whether symptoms and impairment were caused or contributed to by the accident.
[30]     In Nelkovska v MAA [2012] NSWSC 819, Harrison J confirmed the test is material contribution, not sole causation.
[31]     Briggs v IAG [2022] NSWSC 372 confirms scientific certainty is not required – courts act on probabilities, not scientific thresholds.
[32]     The accident need only be a contributing cause – not the sole one – provided it’s more than negligible.
[33]     Given Mr Babak’s consistent, contemporaneous complaints, Mr Babak submits the Panel should find the accident materially contributed to his back condition.
[34]     Mr Babak submits the Medical Assessor failed to apply the correct causation test, which requires only a non-negligible contribution.
[35]     Mr Babak submits the annular tear should have been attributed to the motor vehicle accident unless proper contrary reasons were given. Mere population data on asymptomatic tears is irrelevant to Mr Babak’s individual case.
Reasons
[36]     Mr Babak submits the Medical Assessor’s reasons are opaque. As held in Wingfoot v Kocak [2013] HCA 43, reasons must set out the reasoning path clearly.
[37]     Allianz v Francica and Campbelltown CC v Vegan affirm the need to link medical findings to accident effects.
[38]     More detailed reasoning is required where evidence conflicts (Tyack v Cain).
[39]     Mr Babak submits that he cannot understand the reasoning in the certificate – it fails to explain why he ‘lost’ (Kosovic v Star City).
[40]     Mr Babak submits the Medical Assessor fails to give reasons for:
(a)the recall of the certificate;
(b)why Mr Babak’s annular tear was said to be asymptomatic;
(c)why his opinion changed in one month, and
(d)what material influenced the change and why.
The Panel refers to the review submissions of the insurer dated 25 July 2024 by reference to paragraph numbers:
[1.1]   On 17 July 2023, Mr Babak lodged an Application for Review in respect of Medical Assessor Alan Home’s Certificate of Determination dated 14 June 2024, received on 26 June 2024, contending that the assessment is incorrect in a material respect pursuant to s 7.26 of the MAI Act.
[1.2]   Section 7.26(2) provides that an application for review may only be made on the grounds that the assessment was incorrect in a material respect.
[1.3]   Section 7.26(5) states the assessment can only be referred to a Review Panel if the President is satisfied there is reasonable cause to suspect the assessment was materially incorrect.
[1.4]   Mr Babak alleges that Medical Assessor Home’s certificate was impermissibly recalled and is materially incorrect in relation to his findings on causation and reasoning.
[1.5]   The insurer denies that the recall was impermissible or that any material error exists, and submits that the Application should be dismissed as Mr Babak has not shown reasonable cause to suspect material error.
[2.1]   Mr Babak claims he has no knowledge of why the certificate was recalled. The insurer submits this is incorrect and outlines the following chronology:
(a)Medical Assessor Home examined Mr Babak on 24 May 2024.
(b)That day, the Commission advised via Portal that Medical Assessor Home required Dr Youssef’s clinical notes and imaging.
(c)The insurer confirmed the records were requested but not yet obtained.
(d)Despite this, the Commission issued a certificate on 29 May 2024.
(e)The insurer queried why a certificate issued without the records. The Commission replied that the certificate had been recalled and would be reissued once the records were received.
(f)On 3 June 2024, the Commissoin again requested the records.
(g)Mr Babak provided the records on 6 June 2024.
(h)On 7 June 2024, the insurer lodged further submissions, later formalised via an Application to Admit Late Documents (AALD) on 10 June 2024.
(i)On 13 June 2024, Mr Babak’s solicitors responded.
(j)On 18 June 2024, a new certificate dated 14 June 2024 issued, without reference to either party’s submissions.
(k)The insurer queried why the submissions had not been addressed.
(l)The Commission advised the certificate would be recalled and reissued with amendments.
(m)The final certificate was issued on 26 June 2024.
[2.2]   The insurer submits that the reasons for the recall are clear, and it was Mr Babak – not the insurer – who provided Dr Youssef’s records.
[2.3]   Both parties made submissions addressing the records.
[2.4] Given the failure to consider those records and submissions, the Commission was entitled under Rule 112 of the Rules to refer the matter back due to incompleteness.
[2.5]   Clause 71 of Procedural Direction PIC6 supports this, noting that failure to refer to submitted documentation constitutes an incomplete certificate.
[2.6]   The insurer argues the Commission had the power to recall the certificates and that Medical Assessor Home was not required to explain prior recalls.
[2.7]   Further, the insurer submits that Medical Assessor Home was not required to, nor would it have been appropriate for him to address why his previous certificates were recalled.
[3.1]   Mr Babak appears to allege that Medical Assessor Home failed to apply the correct test of causation – namely, whether the accident contributed to his back condition on the balance of probabilities.
[3.2]   The insurer denies any error, citing Medical Assessor Home’s conclusion:
“I find on balance, there is a very high likelihood that the annulus fissure seen in the post-accident scans represents a pre-existing degenerative fissure, and is therefore not an acute finding. The post-accident history of back and leg pain represents a symptomatic aggravation of the pre-existing condition.”
[3.3]   Accordingly, the insurer submits that the causation findings are consistent with the Guidelines.
[3.4]   As to the case Kinchela v IAA [2021] NSWSC 804 and alleged procedural unfairness, the insurer distinguishes that matter: in Kinchela, error arose from reliance on medical publications. Here, Medical Assessor Home made a passing reference to prior Review Panel decisions, which is common practice to promote consistency.
[4.1]   Mr Babak alleges the Medical Assessor’s reasoning is opaque and difficult to follow.
[4.2]   The insurer submits that the reasoning is clear and meets the Medical Assessor’s obligations.
[4.3]   Pages 9–11 of the certificate contain detailed analysis of pre- and post-accident records.
[4.4]   On page 12, under "Diagnosis, Causation and Reasons", the Medical Assessor summarised the accident and medical histories, and stated:
“Previous imaging of the lumbar spine demonstrated pathology maximal at L4/5 and L5/S1…
I find that in the subject accident Mr Babak suffered injuries to the lumbar spine and cervical spine…
The post-accident imaging demonstrates disc desiccation and bulging at L3/4 and an annulus fissure at L4/5 with potential compression at L5…
Mr Babak does not present with clinical findings of radiculopathy…
I do not find that lumbar radiculopathy has been confirmed by previous examiners…
Having reviewed the pre-accident CT scan, I note established degenerative changes at L4/5. I find that on balance, there is a very high likelihood the annulus fissure seen post-accident represents a pre-existing degenerative fissure.”
[4.5]   The insurer submits that Medical Assessor Home’s reasoning clearly sets out how he formed the view that the L4/5 annular fissure was not caused by the subject accident and that any lumbar spine injury is therefore a threshold injury.

EVIDENCE BEFORE THE REVIEW PANEL
Personal injury claim form dated 22 December 2022

In a Personal Injury Claim form dated 22 December 2022, Mr Babak noted injuries to his neck, whiplash mid to lower back, right leg. He noted he suffered lower back pain three years ago but had since recovered.

Ambulance report of 3 December 2022

Mr Babak, a 34-year-old male, was involved in a two-vehicle motor accident and complained of back pain. He self-extricated, was mobile at the scene, and showed no signs of acute trauma. He reported a two-year history of similar back pain due to L3/L4 disc degeneration and admitted to taking more than his prescribed Lyrica dosage. On assessment, he was neurologically intact, hemodynamically stable, and had no signs of serious injury. He exhibited thoracic tenderness but could not confirm whether it was new. Paramedics noted that he persistently requested pain medication and stated "that's okay I won't tell anyone just give it to me” after being refused further analgesia. He was transported to Concord Hospital in stable condition for further assessment.

Police report

In respect to the crash summary, the police report states:
“…began to slow in an attempt to turn right onto Bennelong Pkwy. [Insured Driver] continued in a northerly direction at a speed of approximately 60kph. Upon sighting [Mr Babak] stopping to turn right, [Insured Driver] has attempted to brake however has collided with the rear of [Mr Babak] causing damage to the rear bumper of [Mr Babak]”.

MRI of the lumbar spine dated 8 July 2019

Dr Vijay Maniam referred Mr Babak to Ray Scan Imaging Liverpool for an MRI of the lumbar spine scanned on 7 July 2019 and reported by Dr Niranjan Ganeshan on 8 July 2019.
Mr Babak, and Mr Ali Ahmad, are accepted to be one and the same person. The same date of birth is shown for Ali Ahmad by that name as by the name Benjamin Babak.
The MRI of the lumbar spine was reported as follows:
“Clinical indication: L4-5 intervertebral disc protrusion and impingement.
Findings: Sagittal T1 , T2, STIR and axial T1 and T2-weighted imaging.
Conus terminates normally at T12. There is no abnormal signal in the conus medullaris. Vertebral alignment remains anatomical with no vertebral compression fractures. I do note dehydration of the L3-4 and L4-5 discs.
At L 1-2 and L2-3, there are no significant disc Lesions nor neural impingement.
L3-4: Diffuse disc bulge with mild thecal sac compression. There is some ligamentum flavum thickening contributing to the canal narrowing. No definite root compression.
L4-5: Posterior annulus tear with a broad-based posterior disc bulge. There is ligamentum flavum thickening and facet joint arthropathy with moderate canal stenosis and impingement on both L5 nerve roots in the lateral recess. No foraminal L4 root impingement.
L5-S 1: Posterior annulus tear with a minimal disc protrusion. No neural impingement.
Conclusion: Disc desiccation with annulus tears and disc protrusions at L3-4 and L4-5. There is moderate canal stenosis at L4-5 with bilateral L5 root impingement.”
As submitted by the insurer, the MRI of 8 July 2019 reports pathology at both L3/4 and L4/5.
The Panel confirms that it had not been provided with this material before arriving at its determination on 16 May 2025.

CT scan dated 26 June 2019

Straightening of the lumbar curvature due to muscle spasm disc heights reduced at L3/4, L4/5 and L5/S1. At L3/4 a mild broad based disc bulge seen. At L4/5 a broad based disc osteophyte complex causing mild bilateral neural foraminal narrowing. Mild bilateral facet joint arthropathy. At L5/S1 a broad based disc bulge causing mild impression on the thecal sac. Mild bilateral facet joint arthropathy.

CT scan dated 3 December 2022

No acute fracture. Alignment is normal. There is no paravertebral haematoma. Vertebral body and intervertebral disc heights are preserved. There is no significant spinal canal or neural exit foraminal stenosis. Minor degenerative disc bulge at C5/6.

MRI scan dated 8 December 2022

At L3/4 disc desiccation and circumferential bulge. Early narrowing at the canal and lateral recess. Disc material extends into the floor of the L3 neural exits. At L4/5, a circumferential slightly right-sided disc bulge with annulus fissure. There is a background of disc desiccation. There is impingement upon the lateral recess of L5 greater on the right. There is canal stenosis, disc material extends to the floor of each of the L4 neural exits. The pedicles are developmentally narrowed. There is facet joint degenerative hypertrophy. At L5/S1, there is minimal posterior annular bulge. The canal and neural exits are unremarkable. There is facet ligamentum flavum hypertrophy. There is degenerative change at the facet joints.

MRI scan dated 30 March 2023

At C3/4 a right-sided sub-articular foraminal disc protrusion causing severe right foraminal stenosis. At C4/5, small right foraminal disc bulge with mild right foraminal stenosis. At C5/6 a right paracentral sub-articular broad-based disc protrusion indenting the right hemi-thecal sac, resulting in mild central canal stenosis. The disc protrusion results in mild foraminal stenosis bilaterally, slightly more marked on the right side.

CT scan dated 28 June 2023

Right paracentral/foraminal disc protrusion at C5/6 with suspected impingement of the right C6 nerve root.

MRI scan dated 28 June 2023

At L3/4 disc desiccation. A mild posterior disc bulge without nerve root compression. Foramina are patent. At L4/5, a broad-based disc bulge with posterocentral disc protrusion with moderate grade canal stenosis and effacement of the lateral recesses with impingement of the bilateral descending L5 nerve root. There is a posterocentral annulus tear. Foramina appear to be moderately narrowed without impingement of the exiting L4 nerve roots. At L5/S1 there is mild posterior disc bulge without central canal or foraminal stenosis. The facet joints appear unremarkable.

Concord Repatriation General Hospital clinical notes (various dates)

Concord Repatriation General Hospital notes an attendance on 3 December 2022 with discharge on the same date, travelling 10 kilometres per hour, car went into the back going around 60 70, airbags not deployed. 30 minutes later, cervical and lower back pain, previous history of L3/4 disc with same back and leg pain three years previously.
In particular, and without limiting to generality, the Panel had the MRI report of Dr Taj Dugal of the examination of Mr Babak on 14 August 2024, a copy of which Medical Assessor Rosenthal annexed to his report to the Panel of the examination of Mr Babak.

RE-EXAMINATION BY THE PANEL ON 12 FEBRUARY 2025

Medical Assessor Rosenthal examined Mr Babak on 12 February 2025 and his report follows:

Mr Babak attended the Commission’s rooms for re-examination by Medical Assessor Rosenthal on 12 February 2025. He was accompanied by a Farsi interpreter, Mr Iraj Bolghand (NAATI No: CPN3ZJ92U).
Mr Babak attended the examination following an appeal against Medical Assessor Alan Home’s certificate dated 14 June 2024 where he found injuries to the cervical spine and lumbar spine were both threshold injuries.

history

Mr Babak confirmed the history previously given. He had been involved in a motor vehicle accident on 3 December 2022. He had been driving a Toyota sedan. It had been stationary awaiting to turn right when the car was struck from behind. He may have hit his head on the steering wheel and lost memory of some of the accident details. He had his seatbelt on. No airbags went off. Police came and then called an ambulance that took him to Concord Hospital.
He had sustained neck and back injuries. The hospital had wanted to do MRIs on his neck and back but did not have an MRI machine. They gave him a morphine injection. He said he developed right leg pain associated with the back pain.
He subsequently saw Dr Youssef, his general practitioner. He had physiotherapy and chiropractic treatment.
Eventually, he was referred to Dr Ghahreman and then Dr Kohan, neurosurgeons. Both of them had wanted to do surgery but initially he had been treated with physiotherapy and painkillers. He had one injection into his neck between August and October 2023 apparently for diagnostic reasons and this gave him no relief of his symptoms.
He had finished physiotherapy six months prior.
Since he had last seen Medical Assessor Alan Home for the Commission, his condition had deteriorated. He then required crutches to get around and was having a lot of difficulty performing his activities of daily living.
Further MRIs of his cervical and lumbar spine were performed following Medical Assessor Home’s consultation and Medical Assessor Rosenthal attached a copy of the MRI report dated 14 August 2024 [note that Medical Assessor Rosenthal in his report to the Panel referred to the report of 4 August, but this was a typo].
In terms of his pre-existing conditions, Mr Babak had in fact been a bodybuilder and had attended the gym on a daily basis. He admitted to having had some low back pain prior to the accident and he was reminded of the documents from Dr Youssef which confirmed this. He stated that he recalled being referred to Dr Darwish and Dr Maniam in 2019 but his back had improved and he did not go. He did not recall having leg pain although it had been recorded by his general practitioner. He said the back symptoms had resolved and were not present at the time of the subject accident. He said the symptoms following the subject accident were completely different to those symptoms he may have experienced in 2019 and 2020.
He denied any other health issues pre- or post-accident.
He had been working as an assistant manager buying and selling beauty products full-time and also worked as an Uber driver part-time. He had to stop both these jobs following the accident. He had not worked since the accident occurred. He was receiving insurance company payments.
He lived in a house in Strathfield in shared accommodation. He did not drive. He did no housework. He stayed at home. He sometimes needed assistance with dressing. He tended to do very little then because his injury had deteriorated and his mobility had worsened.

Current symptoms

He reported low back pain constant between 7 and 10 on a scale of 0–10. He was always stiff in the back. His right leg went numb with pins and needles. He got left lower leg pain from the knee down. He could not bend easily. He needed crutches to mobilise.
He had neck pain which persisted and radiated to the fingers of his right hand. (He was right-handed.)
Following the recent MRI, he noted that Dr Ghahreman had then recommended a spinal fusion whereas he had previously recommended a laminectomy and discectomy.

Current treatment

He was still taking Tramadol and various painkillers.
He took an antidepressant. He had seen a psychologist at one point.

Investigations

Medical Assessor Rosenthal attached the MRI report. Of relevance, was a significant L4/5 disc protrusion with a prominent posterocentral annular tear. There was moderate canal stenosis abutting the L5 nerve root. The report noted that the disc protrusion had progressed, the annular tear being more prominent and the right foraminal stenosis having mildly progressed.

Physical examination

On examination, Mr Babak walked with crutches. He sat comfortably during the interview for around 30 minutes. He removed a Velcro back brace for the examination but he needed assistance for removing some clothes and getting onto the couch. This was provided to him by the interpreter.
He estimated his weight at 84kg and height at 176cm.
Difficulty in examination occurred because he could not remove his trousers and the interpreter was not able to completely remove them so these were kept on for the examination. He did not attempt to do any lumbar movements without hanging onto the crutches but there was some lumbar movement present throughout his general movements. He was very tender over the right L5 region.
In the supine position, his straight leg raise on the right was 10° and on the left was 40°. He had an equivocal Lasegue’s sign and global weakness in the right leg as well as global sensory loss reported below the knee in the right leg and foot. There was no clear dermatomal sensory loss of muscle weakness associated with a particular spinal nerve root. The lower limb reflexes were present and equal. There was no evidence of clinical radiculopathy.
The neck exhibited asymmetry of motion with tenderness of the paraspinal muscles of the cervical spine. Right rotation was reduced by one-third, left rotation was reduced by one-quarter. Flexion, extension and lateral flexion were reduced by a quarter.
Shoulder movements were marginally reduced at the extremes.
There were no neurological deficits in his upper limbs. There was global sensory loss reported in all the fingers of the right hand.
There was no evidence of wasting. Thigh and calf measurements were equal as were upper arm and forearm measurements.

Opinion and discussion

Mr Babak’s history was noted. His back and leg had become symptomatic after the motor vehicle accident. The pre-existing condition affecting his lumbar spine had reportedly resolved. He apparently had not attended Dr Maniam or Dr Darwish prior to the subject accident.
The MRI report of 8 July 2019 does show an annular tear at L4/5.
The MRI report of 8 December 2022 refers to the observation of disc material extending to the floor of each of the L4 neural exits.
The MRI of 11 August 2024 noted a progression of the annular tear. The disc protrusion had progressed and the annular tear was more prominent.
The determination of the review panel of 16 May 2025 took into account the opinion of the Panel that the pre-existing annular tear had progressed (ie., the tear had extended) and that this was consistent with the new symptoms which commenced following the accident.
The MRI report of Dr Ganeshan of 8 July 2019 does not alter the opinion of the panel which has reviewed both the extra material now provided and the decision of 16 May 2025.
The Panel further notes the additional material, including the MRI scan of 8 July 2019, should be read in the context that it was reported by Mr Babak to the Panel that the 2019 symptoms had settled prior to the time of the accident.
In terms of the injuries, the cervical spine injury would be classified as a soft tissue injury. There were some minor disc osteophyte complex changes on the MRI of 14 August 2024 but these remained unchanged. Those radiological changes were likely to have pre-existed the motor vehicle accident and were unrelated to trauma. He did not display any evidence of radiculopathy. The cervical spine injury was thus classified as a threshold injury.
The lumbar spine injury had reportedly become significantly symptomatic with new symptoms. There was an issue in regards to the ambulance report stating that he had back pain at the time of the accident and it was the same pain, but this was denied by the claimant. There was no other objective evidence, i.e., Dr Youssef’s clinical records, which indicated that he continued to have ongoing back pain which was present at the time of the accident. It was clear that a new MRI of the lumbar spine was performed on 8 December 2022 which, according to the claimant, was requested by the hospital due to the new symptoms reported.
In regard to the Concord Hospital notes, he reported a pre-existing L3/4 disc injury but the main abnormality on the MRI was now at L4/5.
The latest MRI of 14 August 2024 (report attached) noted a progression of the annular tear and the L4/5 disc protrusion.
The Panel accepted that he experienced new symptoms following the accident. There was now an annular tear reported rather than a fissure, and the disc protrusion had extended—this indicated clinically that he had extended the tear/protrusion in his L4/5 disc. In the Panel’s view, this would be classified as a non-threshold injury. For more abundant caution, the Panel makes it clear that the Panel discussed all of the examination findings and documents before coming to the final decision.
There was no evidence of radiculopathy in regard to the lumbar spine.
Thus, the Panel disagreed with the opinion of Dr Alan Home where he stated that the annular fissure represented a pre-existing degenerative fissure. That annular fissure had now clearly extended into an annular tear and there was an increase in the size of the L4/5 disc protrusion.

Further meeting of the medical review panel on 6 March 2025

The members of the review panel met again on 6 March 2025 and discussed the opinion and findings of Medical Assessor Rosenthal who spoke to his report.

The Panel’s consideration of the submissions

The insurer’s central submission is that there was significant pre-existing lower back problems as referred to in the ambulance report, the records of Concord Hospital, and the Certificates of Capacity.
Further, at [3.17], Mr Babak specifically advised paramedics immediately following the accident that his back pain was “not new” and that he had a two-year history of the same pain with an L3/L4 slipped disc.
At [3.18], the insurer disputes that the lumbar spine pathology identified in post-accident radiology was caused by the accident and is consistent with the pre-existing L3/L4 slipped disc and sciatica.
The Panel was of the opinion that the lumbar spine injury became significantly symptomatic with new symptoms after the accident.
The Panel noted that it was clear that a new MRI of the lumbar spine was performed on
8 December 2022 which, according to Mr Babak, was requested by the Hospital due to the new symptoms he reported.
The Panel notes that in regard to the Concord Hospital notes, he reported a pre-existing L3/L4 disc injury but the main abnormality on the MRI is now at L4/L5.
The latest MRI of 4 August 2024 notes a progression of the annular tear and of the L4/L5 disc protrusion.
The Panel accepted that Mr Babak experienced new symptoms following the accident and he commented that there was now an annular tear reported rather than a fissure, and the disc protrusion had extended.
The Panel was of the opinion that this indicated clinically that Mr Babak now had an extension of the tear/protrusion in his L4/L5 disc.
The Panel disagreed with the opinion of Medical Assessor Home who stated that the annular fissure represented a pre-existing degenerative fissure.
The Panel was of the opinion that the annular fissure had now clearly extended into an annular tear and there was an increase in the size of the L4/L5 disc protrusion.
At the meeting of the Panel on 21 March 2025, Medical Assessor Rosenthal spoke to his report and there was discussion with the members of the Panel, and it was the Panel’s conclusion that Mr Babak’s back and leg became symptomatic after the accident.
The Panel was of the view, shared by Medical Assessor Rosenthal, that the lumbar spine injury became significantly symptomatic with new symptoms after the accident. It noted that there was an issue with respect to the ambulance report stating that Mr Babak had back pain at the time of the accident and it was the same pain, but this was denied by Mr Babak.
The members of the Panel were provided with a copy of the application to correct an incomplete certificate on 19 May 2025 and considered that material.
On 3 June 2025, the Panel, without conducting any further medical review Panel meeting, reached the conclusions as set out in paragraphs [118]-[123] inclusive above.

DETERMINATION

The Panel revokes the certificate of Medical Assessor Home and substitutes the determination to certify that the injuries referred to Medical Assessor Home were threshold injuries with the exception of the injury to the lumbar spine which was a non-threshold injury.

[2025] NSWPICMP 346

19 May 2025